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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
CASE NUMBER: 1531/22
In the matter between: -
A[...] M[...] M[...] APPELLANT/APPLICANT
and
MEMBER OF THE EXECUTIVE COUNCIL RESPONDENT/DEFENDANT
FOR DEPARTMENT OF HEALTH,
NORTH WEST PROVINCE
_____________________________________________________________
JUDGMENT FOR APPLICATION FOR LEAVE TO APPEAL
______________________________________________________________
MOREI AJ
INTRODUCTION
[1] This is an opposed leave to appeal application. The Applicant (cited as
the Plaintiff in the trial) applies for leave to appeal to the Supreme Court
of Appeal, alternatively, the Full Bench of the North West Division High
Court, against the whole judgment and order handed down on 13 June
2025, which found that:
[1.1] The claim by the Plaintiff is dismissed, and
[1.2] The costs follow the suit.
[2] The parties are referred to in this judgment as they were cited and/or
referred at trial (i.e. the Applican t as Plaintiff and the Respondent as
Defendant).
GROUNDS UPON WHICH LEAVE TO APPEAL IS SOUGHT
[3] The grounds for the application for leave to appeal are as follows that:
This Honourable Court erred in:
[3.1] Finding that it was a dispute between the parties, whether the
Plaintiff’s HIV status caused a spontaneous fistula or whether it
was caused by the negligent conduct of the medical practitioners
employed by the Defendant in the absence of any plea in that
regard by the Defendant. The Court should have had cognizance
to the fact that the plea is a plea in bare denial, quoting the words
“the Defendant has no knowledge” and the plea was never
amended to reflect any version of the Defendant before Court.
[3.2] In finding despite no expert evidence was presented by the
Defendant who has the necessary expertise to comment on the
probabilities that the fistula was caused by the HIV status of the
Plaintiff.
[3.3] In finding that it was common cause that the Plainti ff’s pre -
existing factors contributed to the injuries as alleged by her in her
Particulars of Claim. The pre-existing factors caused the Plaintiff a
high-risk patient which needed extra special care.
[3.4] In not finding that the evidence of an admission of Dr. Chimosoro
with regards to the pre-existing factors causing the Plaintiff a high
risk patient as relevant.
[3.5] In finding that the operation was a success, despite all the
admissions, that Dr. Chimosoro admitted in regard to the
negligence of the clinical staff, specifically mentioned the
conserve doctor, Dr. Van Zyl, was probably overwhelmed and
inexperienced.
[3.6] In finding that the operation was a success, despite the fact that
the Plaintiff’s left ovary and tube had to be removed, which has
the effect that she can no longer bear children and which
operation also ended in the rectovaginal fistula and still persisted.
[3.7] In finding that there is no causal link between the injuries
sustained by the Plaintiff and the conduct of the Defendan t. And
further in the absence of any evidence to the contrary by the
Defendant, further erred in not drawing a negative inference from
the fact that neither of the clinicians were ever called to give
evidence, nor were they ever presented to the Plaintiff as possible
witnesses.
[3.8] By ignoring the opinion of Prof Cronje, who testified that Dr. Van
Zyl, the conserve doctor, probably should have had more
experience before operating on such a high -risk patient and
further by failing to give reasons why the opinion of Prof Cronje
was completely disregarded by the Court.
[3.9] By further ignoring Prof Cronje’s opinion that the tear was
probably caused by the conserve doctor, Dr. Van Zyl, by
inexperiencedly proceeding with a C -section on a high -risk
patient. This despite the fact that Dr. Chimosoro agreed during his
testimony that Dr. Van Zyl was inexperienced.
[3.10] Furthermore, the Court erred by ignoring Dr. Pienaar’s evidence
without providing reasons, despite the fact that Dr. Pienaar
testified that the colostomy was an absolute must to conduct. The
staff should have been aware of the Plaintiff’s high -risk factors
and that it was inappropriate to leave a junior doctor without
senior supervision.
[3.11] Erred in not accepting Dr. Pienaar’s opinion that suc h a patient
needs more care as a high-risk patient.
[3.12] Erred in ignoring Prof Cronje’s evidence that the case
management of the Plaintiff’s operation was substandard and that
more experienced supervision was required.
[3.13] Misunderstanding the patient’s high-risk status as being attributed
to her HIV status when Dr. Chimosoro testified that the HIV was
dormant and under control and presented a possibility rather than
a probability.
[3.14] Although the Court quotes the evidence of Dr. Pienaar failed to
point out why the Court would not accept his opinion as proper
and probable despite the fact that he opined that the fistula was
not caused by the Plaintiff’s HIV status.
[3.15] Erred in not taking into consideration that Dr. Chimosoro’s report
was never handed in as evidence.
[3.16] In not considering any of the admissions made by Dr. Chimosoro
during his cross -examination supporting the evidence of the
Plaintiff.
[3.17] In finding that an emergency situation excuses a doctor from
negligence despite trite law that inexperience cannot be
considered as a valid defence.
[3.18] Erred in the interpretation and evaluation of the case law, in
regard to expert opinions. More specifically, in this m atter where
the evaluation of the expert evidence of the plaintiff’s witnesses
(Prof Cronje and Dr. Pienaar) was not comparable to the expert
evidence provided by the Defendant’s expert Dr. Chimosoro. Dr.
Chimosoro agreed with this and admitted that the De fendant’s
staff were likely negligent in as much as Dr. Van Zyl probably
waited too long before calling the Registrar for assistance during
a high-risk serious situation.
[3.19] Erred in applying a test of beyond reasonable doubt when only a
balance of pr obabilities should be considered. In not having
regard to the two expert’s opinions (Prof Cronje and Dr. Pienaar)
which were not disputed, and the admissions made by Dr.
Chimosoro which, if considered in combination shows on a
balance of probabilities that the Plaintiff has proved her claim.
[3.20] By failing to consider the evidence as a whole firstly and secondly
by failing to list the isolated statements made by the Plaintiff’s
experts, which the Court did not agree with taking into account
the evidence available to the Court.
[3.21] In quoting general statement but erred in drawing a negative
implication in regard to the failure of the Defendant not calling any
of the clinicians to shed light on their professional skill at the
relevant time.
[3.22] In finding that the clinicians acted reasonably despite not having
the benefit of their evidence. The Court erred further by not
considering the fact that at least three expert’s opinions (Prof
Cronje, Dr. Pienaar and Dr. Chimosoro) stated that the comserve
Dr. Van Zyl, was probably negligent because of his or her
inexperience.
[3.23] In not finding that the Plaintiff did prove the possibility that
reasonable steps should have been taken and should have been
foreseen, seeing it is common cause that the Plai ntiff was a high-
risk patient.
[3.24] Erred in referring to case law specifically the matter of Goliath v
The MEC for HEALTH 2014 (ZASCA) 182; 2015 (2) SA 97 (SCA)
and then not applying the principle established in the mentioned
case regarding the negative inference the Court has to draw
when essential witnesses are not called to come and give
evidence before it.
[3.25] In misconstruing factual evidence that there was no chronic fistula
prior to the operation, a fact that the Plaintif f herself testified to
which could not be disputed and therefore erred on finding on
assumption rather than fact.
[3.26] In finding that the Plaintiff’s HIV status had any bearing on the
result, namely the post operative fistula in the absence of any
evidence in support thereof, and the fact it was never pleaded as
the Defendant’s case.
[3.27] In finding that the Plaintiff failed to demonstrate the Defendant’s
negligence when the evidence before the Court established to the
contrary, namely that Dr. Van Zyl was probably overwhelmed and
inexperienced.
[3.28] In not awarding the wasted costs on 22 November 2024 to the
Plaintiff, which was caused by the Defendant’ s failure to call the
expert witness because he was not available to testify on that
day.
[3.29] It is submitted by virtue of the aforementioned grounds that the
appeal would have a reasonable prospect of success implicating
that another Court might come to a different conclusion.
THE LEGAL POSITION IN DECIDING IF LEAVE TO APPEAL SHOULD BE
GRANTED
[4] Section 17(1) of the Superior Courts Act provides that leave to appeal
may only be given where the judge is of the opinion that:
[4.1] The appeal would have reasonable prospects of success; or
[4.2] There is some other compelling reason why the appeal should
be heard, including conflicting judgments on the matter under
consideration.
[5] The prospectus of success required in terms of Section 17(1)(a)(i) is to
be
decided without reference to the parties’ wishes. 1 Inn Mont Chevaux
Trust v Goosen 2014 JDR 2325 (LCC) the Court held that:
“ I t is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new Act. The former test
whether leave to appeal should be granted was a reasonable prospect
that another court mi ght come to a different conclusion, ...The use of the
word "would" in the new statute indicates a measure of certainty that
another court will differ from the court whose judgment is sought to be
appealed against. ...” .2
[6] The test of reasonable prospects of success postulates a dispassionate
decision based on the facts and the law, that a Court of Appeal could
reasonably arrive at a conclusion different to that of the trial Court. In
order to succeed, the applicant must c onvince the Court on proper
grounds that he has prospects of success on appeal and that those
prospects are not remote but have a realistic chance of succeeding.
1 Rail Commuter Action Group v Transnet Limited trading as Metrorail (Number 2) 2003 (5) SA 593 (C).
2 At para 6.
There must be a sound, rational basis for the conclusion that there are
prospects of success. 3
[7] Leave to appeal is further granted not in respect of the reasons for the
judgment but in respect of the order itself. Therefore, the success of the
application for leave to a ppeal must be related to the outcome of the
case and not an argument that fails to dispose of the case in the
Appellant's favour. 4
[8] In the matter of Tecmed Africa v Minister of Health 5 the Supreme Court
of Appeal held:
“[17] First, appeals do not lie against the reasons for judgment but against
the substantive order of a lower court. Thus, whether or not a court of
appeal agrees with a lower court’s reasoning would be of no
consequence if the result would remain the same (Western
Johannesburg Rent Board v Ursula Mansions (Pty) Ltd 1948 (3) SA
353 SA 353 (A) at 354)”.
[9] Meritless appeals may not be allowed. The test in an application for
leave to appeal is simply whether there are any reasonable prospects of
success in an appeal, not whether a litigant has an arguable case or a
mere possibility of success . The Supreme Court of Appeal (SCA) has in
the past criticized the regularity with which leave to appeal is granted in
matters not deserving its attention. Marais AJ stated that:
3 Ramakatsa v African National Congress [2021] ZASCA 31 (31 March 2021).
4 Goodwin Stable Trust v Duohex (Pty) Ltd (2) [1996] 3 All SA 119 (C)
5 [2012] 4 All SA 149 (SCA).
“ ... The inappropriate granting of leave to appeal to this court increases
the litigants’ co sts and results in cases involving greater difficulty and
which are truly deserving of the attention of this court having to compete
for a place on the court’s roll with a case which is not. 6 [footnote 1 on the
case on the internet]”.
[10] The right to appeal is, among others, managed by the application for
leave to appeal. It may not be abused but the hurdle of an application for
leave to appeal may never become an obstacle to justice in the post -
constitutional era, as outlined in Section 1 7 of the Superior Courts Act
above.
[11] Adv. De Meyer and Adv. M Van Aswegen on behalf of the Plaintiff
argued that the probabilities favour the Plaintiff’s case, as another Court
might reach a different conclusion due to the complexities of expert
testimony and differing expert opinions. They contended that a different
Court would take into consideration that there are issues in dispute;
conflicting experts opinions exists and that this Court, applied a test of
beyond a reasonable doubt when only a bala nce of probabilities test
should have been applied, in deciding whether the Defendant was
negligent or not; and that the Plaintiff had proven her claim.
6 Shoprite Checkers (Pty) Ltd v Bumpers Schwarmas CC and Others (231/2002) [2003] ZASCA 57; [2003] 3 All SA
123 (SCA); 2003 (5) SA 354 (SCA) (30 May 2003) para 6.
[12] Adv. MM Maphuta on behalf of the Defendant opposed the appeal on
the basis that there are no ot her compelling reasons why the appeal
should be heard. There is no question of law that needs to be
considered, and there are no conflicting judgments on the matter under
consideration. This Court correctly held that the presence of a fistula to a
patient who are infected with HIV is not foreign or unheard of, and to tie
its presence to unlawful and negligent conduct of the Defendant would
not be entirely correct except where the Plaintiff is able to demonstrate
that indeed the Defendant failed to apply the standard of care unto the
Plaintiff which culminated into medical malpractice. Moreover, this
Court’s approach in considering whether the Defendants’ conduct failed
to meet the accepted standard of care, causing harm to the patient, is
consistent with how this principle is applied in all medical negligence
cases.
[13] Furthermore, contended that the Defendant has succeeded in proving
that the Applicant’s leave to appeal has no prospects of success and
that any other court faced with the facts of the Pla intiff’s case will not
come to a different conclusion to the one the trial court came to.
THE TEST FOR MEDICAL NEGLIGENCE
[14] In Topham v MEC for the Department of Health,
Mpumalanga (351/2012)
[2013] ZASCA 65 (27 May 20213) it was held that:
“[6] Professional negligence is determined by reference to the
standard of conduct of the reasonably skilled and careful
practitioner in the particular field and in similar circumstances. A
medical practitioner diagnosing and treating a patient is expected
to a dhere to the general level of skill, care and diligence
possessed and exercised at that time by the members of the
branch of the profession to which he or she belongs. It follows that
a wrong diagnosis does not per se amount to negligence on the
part of th e medical practitioner concerned. It will only be
negligence if the practitioner’s conduct does not comply with the
general standard of care to which I have referred .” (My own
emphasis added)
[15] The test for medical negligence was aptly captured in November 2023
by
Joubert7 when he discussed the cases of Chapeikin and Another v
Minister (103/2015) [2016] ZASCA 105 (14 July 2016) and Oppelt v
Head: Health, Department of Health Provincial Administration: Western
Cape (CCT185/14) [2015] ZACC 33; 2016 (1) SA 325 (CC); 2015 (12)
BCLR 1471 (CC) (14 October 2015). He concluded that:
(a) The existence of negligence for the purpose of liability is that fault
arises if a reasonable person in the position of the defendant would
foresee the reasonable possibility of his conduct injuring another in
his person or property and causing him patrimo nial loss; and would
take reasonable steps to guard against such occurrence; and the
defendant failed to take such steps;
(b) There are two steps, the first is foreseeability – would a reasonable
person in the position of the defendant foresee the reason able
possibility of injuring another and causing loss. The second is
7 https://www.millers.co.za/OurInsights/ArticleDetail.aspx?ArticleID=3121 accessed on 23 December 2025.
preventability – would that person take reasonable steps to guard
against the injury happening;
(c) Negligence must be evaluated in light of all the circumstances;
(d) Because the test is defendant-specific the standards are upgraded
for medical professionals. The question for them is whether a
reasonable medical professional would have foreseen the damage
and taken steps to avoid it;
(e) The appellate division noted that this standard does not expect the
impossible of medical personnel.
(f) A medical practitioner is not expected to bring to bear upon the case
entrusted to him the highest possible degree of professional skill,
but he is bound to employ reasonable skill and care and he i s liable
for the consequences if he does not;
(g) A practitioner can only be held liable if his diagnosis is so palpably
wrong as to prove negligence, that is to say, if his mistake is of such
a nature as to imply absence of reasonable skill and care on his
part, regard being had to the ordinary skill in the profession.
(h) The test is always whether the practitioner exercised reasonable
skill and care or put differently, whether his or her conduct fell below
the standard of a reasonably competent practitioner in the field;
(i) If the error is one that a reasonably competent practitioner might
have made, it will not constitute negligence.
CONCLUSION AND ORDER
[16] I have carefully considered both parties submissions and whether there
are any reasonable prospects of success on appeal.
[17] I am not persuaded that there are any reasonable prospects of success,
as the Plaintiff did not meet th e threshold required for this Court to grant
leave to appeal.
[18] Moreover, in making a ruling, I correctly applied the balance of
probabilities test considering all the evidence, including evidence of all
expert witnesses that was provided.
[19] In t he premises, the application for leave to appeal is dismissed with
costs.
___________________
N MOREI
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
APPEARANCES
COUNSEL FOR THE PLAINTIFF: ADV DE MEYER
083 228 6169
marieadvlaw@gmail.com
ADV M.E VAN ASWEGEN
082 553 2643
marietjievana@gmail.com
COUNSEL FOR THE DEFENDANT: ADV MM MAPHUTHA
061 542 2938
Maphutham22@gmail.com
DATE OF HEARING : 14 November 2025
DATE OF JUDGMENT : 30 January 2026