SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION – MAHIKENG
Case No: 83 / 2021B
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
In the matter between:
G[...] K[...] M[...] PLAINTIFF
And
LEHURUTSHE HOSPITAL 1st DEFENDANT
THE MEC FOR HEALTH,
NORTH WEST PROVINCE 2nd DEFENDANT
CORAM: MAODI AJ
Date judgment reserved: 17 November 2025
Judgment is handed down electronically by distribution to the parties’ legal
representatives by e -mail. The date that the judgment is deemed to be handed
down is 27 February 2026 at 10h00.
ORDER
1. The plaintiff’s claim is dismissed with costs.
JUDGMENT
MAODI AJ
Introduction
[1] This is a claim for damages and compensation to the plaintiff as a result
of negligence and breach of duty of care by members of the defendant s
acting within the course and scope of their employment with the
defendants. The matter was defended.
The particulars of claim
[2] The plaintiff pleads that on or about 26 September 2020 she was admitted
to first defendant for maternity purposes. The plaintiff gave birth to a still
born baby on 27 September 2020, wh om she named K[...] M[...]. The
death of the said baby was a result of natural causes. The first defend ant
acted negligently by failing to verify that the remains handed over to
plaintiff were those of baby K[...] M[...]. Plaintiff was discharged on 28
September 2020 and was informed that a registered funeral undertaker
had been sourced to remove the r emains of K[...] M[...]. The first
defendant once again failed and/or neglected to afford plaintiff a right to
see the body of the deceased baby when it was put into a coffin from the
hospital mortuary and into a hearse.
[3] On 29 September 2020 pla intiff received a call from the first defendant
informing her that she buried a baby belonging to one M[...] M[...]2
named R[...] M[...]2 instead of hers. The remains of baby R[...] M[...]2
had to be exhumed on an urgent basis. Plaintiff , as a result thereof, has
been denied the right to bury her still born baby, K[...] M[...]. At all
material times the first defendant was acting within the course and scope
of its employment with the second defendant. As a result thereof the
plaintiff has suffered trauma, discomfort, emotional shock, as well as pain
and suffering due to burying someone else’s child and not granted the
right to bury her own baby. Consequently the plaintiff demands
compensation from the first and second defendants, jointly and several ly
the one paying the other to be absolved, in the sum of R 500 000, 00 for
general damages.
The plea
[4] The defendants deny that the plaintiff suffered compensable psychiatric
injury considering the merits of the case and that she was provided with
the remains of her still born baby. The conduct of the health professionals
who interacted with the plaintiff at first respondent did not contribute t o
the plaintiff’s alleged damages.
The evidence
[5] The plaintiff was the only witness in h er own case. She testified that she
gave birth to a child on 27 September 2020 at the first defendant. She went
to hospital and stayed there. In the early hours she gave birth. After giving
birth the nurse told her that the child was born tired and had passed on. She
was taken out of the labour ward to another ward. Then later on the
corridor. One nurse came and asked other nurses why she was put in the
corridor. She called her mother but the hospital had already called her
mother and informed her of the status of her birth.
[6] On 28 September 2020 paternal and maternal aunts of the deceased child,
(that is the families of the child’s father and mother respectively), came to
hospital. The family members were told by hospital staff that the child was
tied by an umbilical cord, but that is not what was told to her. The hospital
staff told her to get services of a mortuary. Family members went with
mortuary to fetch the bab y and found the baby in a coffin. They followed
the hearse to go home. When they got home, she proc eeded straight to her
bedroom and not into her mother’s bedroom as it is where the child was.
Later that day the baby was buried inside her mother’s bedroom. After the
process, they had to look for someone to come do cleansing, who promised
to come early the following day.
[7] She received a call from hospital personnel who enquired about her
mother. She informed them that her mother had gone away to visit her
siblings. The hospital personnel came to her house and informed them that
the child they had buried was not theirs. She enquired as to whose child
she was grieving but they could not tell her the names of the parents of the
child. After three weeks the hospital and government personnel came to
exhume the remains. She was told that the remains of the child who was
exhumed wa s older as the child had come to the hospital due to illness
while hers was still born. She did not see the corpse which was brought for
burial. The hospital personnel left without fixing the mess they had created
in the house. Her family had to find someone to fix the floor and house.
[8] After some time the hospital personnel came to take them to the clinic.
That is when she met the other child’s parents for the first time. When she
enquired from the said parents where they had been, they informed her that
the hospital did not want to disclose to them the whereabouts of the
remains of their child. The hospital said they will keep in contact with
them to track progress but they never contacted them again. She does not
know if the remains provided to them is those of her child because in her
culture she is not allowed to enter where the child is. She is not certain if
the child she re -buried is hers or not. This has affected her family greatly,
especially her as she has constant headaches. She has taken her sister’s
daughter who was born on 28 September 2025 to comfort herself. If one
enters her mother’s bedroom, one will notice and see that there are two
graves.
[9] Under cross-examination she testified that she does not know if the child
was still born o r not as she was not shown the child. This has affected her
emotionally. She confirmed that miscarriages happen in pregnancy but
what has hurt and affected her is the swapping of the child at hospital.
When the child was taken at mortuary she was not there as she was in the
maternity ward. She does not know what happened at mortuary. She
accepted the child that was given to her as she does not know the
procedure at hospital after a child passes away. She does not know if she
has to put the child in the coffin herself. In her culture she is not allowed to
enter a bedroom where the child is buried. At home she is not allowed to
see the corpse. At hospital, after giving birth, she was only told that her
child had passed on but was never shown the child.
[10] She had accepted that the child she gave birth to had passed on, but what
hurt her is that she was later given another baby to bury. She cannot
dispute that the child she re -buried is hers. Her child was not buried in the
same grave that was used for the exhumed child. There are two graves in
her mother’s bedroom.
Plaintiff’s case.
[11] The first witness for defendants was Samuel Itumeleng Mosimane
(Mosiane) who testified that he is a medical doctor employed by the
defendants. He is aware of the plaint iff’s matter. During the year 2020 he
was Acting Clinical Manager for Lehurutshe Medical Complex. One
Tuesday he was called by a member of the hospital who told him about an
incident which occurred the previous day in the mortuary where two babies
were swapped. He asked the executive who called him to tell him which
funeral parlour took the child so that they can stop them from burying the
child. He found that they had already buried on 29 September 2020
whereas he got the information on 30 September 2020 w hich is a day after
the incident.
[12] He organised his executive to go meet the family of the deceased to inform
them that the baby they buried was not theirs. They called the family and
told them that they were on their way. They went to the family’s house and
found that the family had already gathered waiting for them. They met the
family in the sitting room, explained what happened and returned to the
hospital to reconvene for further processes. The process was to inform the
Regional Manager so that h e can inform the MEC. The buried child
remained buried while the other one remained in mortuary while they
embarked on exhumation processes. They informed the District Manager
who informed the MEC. They also informed COGTA, the Municipality
and arranged psychological support for grieving person.
[13] They arranged the social worker of the hospital to assist with the grieving
process. According to the social worker report, she went to the family and
made group assessments. She was still open for individual s to get
assistance if individual assistance was required. It took nine (9) days to get
all signatures and approval. They went to the family house with the
members of the South African Police Services. The exhumation was done
by Avbob. The M[...]2 family and M[...] family were present. He was there
with two police officers, people from the funeral parlour, elders from
M[...] family and M[...]2 family. The body was buried in one room. They
dug the room, removed baby M[...]2 and re-buried the baby M[...] in the
same grave. They made sure they don’t leave anything out of order as they
plastered the room. They proceeded to another village to bury the one who
was exhumed. The expenses were covered by the Department of Health via
Avbob Funeral Parlour according to his knowledge.
[14] They did not deny anyone an opportunity to see the baby. Their goal was
to bury the baby. Sometimes the family does not allow the mother to see
the baby. The family did not allow the mother to see the baby. In
identifying deceased bodies at the hospital they use body shrouds. For
babies they use linen saver as they are small. They write their names on
green four corner tags. One on the head, one on the chest and one on the
leg. That is how they identify a cor pse before they put them in the fridge.
On Monday (day of incident) he was not there but on Tuesday when he
arrived baby M[...] had tags. Baby M[...]2 still had tags when he was
exhumed.
[15] Under cross examination he confirmed that the baby given to th e M[...]
family was the wrong child. In mortuary setting they have mortuary
attendant, they also have the family that will come with mortuary to take
the corpse to private mortuary. The hospital mortuary attendant is the one
guiding the process. It is the duty of the hospital mortuary attendant to
ensure the correct baby is given to the correct family. He could not tell
what caused a wrong baby to be given to the family on Monday as he was
not there, but that on Tuesday he was there and the baby had tags. There
was no need to do DNA tests because on that week they only had two
babies that had died. It was a 6 months old and a still born.
[16] He conceded that the fact that the hospital mortuary attendant had to attend
to other duties she had neglected her duties in respect of baby M[...] and
was thus negligent. Because the procedure was not followed to the core,
there was a bit of negligence. He was not present on the day baby M[...]
was put in the coffin and the day of the incident.
[17] The second wi tness for the defendants was Itumeleng Josephine Kanye
(Kanye) who testified that she was employed by the first defendant as a
mortuary attendant at the time of the incident. Her job description was to
issue and receive. To issue means when people come into the mortuary ,
her job is to assist them get their corpse or body. At the time of the incident
it was during Covid pandemic and it was very busy. While she was helping
the M[...] family there was a long queue and she was working alone. From
the M[...] family she can’t remember their names but the father and aunt
were there.
[18] The one who signed the form is the aunt by the name of N […] K[…]
T[…]. She assisted the M[...] family and while waiting for the hearse to
come, she assisted another family. She assisted the M[...] family with a
form called BI -1663 and they went outside. Another family came in to be
assisted. The other family complained that their corpse had covid but was
not wrapped whereas corpses with covid had to be wrapped. There was a
conflict or quarrel between her and the said family. As she was working
alone and phones were not working, she had to leave to go call
management due to noise. As she was about t o leave, it was the time the
hearse for the M[...] family came in. She informed the M[...] family about
the conflict with the other family and that she had to go call management.
[19] She also informed the hearse personnel of the situation and requeste d them
to go inside and look for a certain fridge as the two bodies were in the
same fridge. The corpses were in one line of the fridge. She informed the
hearse personnel that they differentiate the babies by tags on the head,
chest and legs. Further that they will find a still born and a 6 months old
baby. She left the M[...] family with the hearse personnel. She allowed the
M[...] family to enter the room so that they could identify the baby via tags
which were on the head and wrist. Management came and took the family
which was quarrelling with her away. When she came back, s he asked the
M[...] family if they identified the child as the hearse had already left by
that time.
[20] At that time she had not noticed that the hearse had taken a wrong baby.
She only noticed the following day that a wrong body was taken by the
hearse for the M[...] family. That is when the M[...]2 family came for their
own child and she had to give them a BI form to complete. The M[...]2
family confirmed that the body was not that of their baby and started to
cry. She called management who came and took the family to their offices
and left her behind. What caused the children to be swapped is because it
was covid times, it was unusual and life was not normal. She was in
distress and had a quarrel or conflict with another family. It has never
happened in her career that a child is swapped. She has been working for
the defendants for eighteen (18) years, but it was thirteen (13) years at the
time of incident.
[21] Under cross e xamination she testified that the process of identification of
the body involves assisting the family to complete a BI -1663 form. Then
an undertaker comes. They open the shelf where the body is kept and ask
the family to identify the body. Once done, the undertaker removes the
body to a private mortuary. It is her duty to ensure that the undertaker
removes the correct body . She conceded that she was negligent but
testified that there was a quarrel with another family and she had to call
management. Her employer is negligent for making her work alone for 18
years in a situation which traumatises her.
The authorities and reasons for judgment
[22] At the outset, for the plaintiff to succeed in a claim of this nature, she must
prove that there was negligence on the part of the defendants, which led to
a breach of the duty of care, and as a result thereof she has suffered a
detectable psychiatric injury. Mere nervous shock or trauma is not
sufficient. The fact that the defendants were negligent , which resulted in a
breach of duty of care , is not sufficient on its own to warrant success or
compensation in matters of this nature. The plaintiff has to do more or go
further and establish a detectable psychiatric injury.
[23] This issue was discussed and confirmed in the case of Road Accident
Fund v Sauls 2002 (2) SA 55 (SCA) at par 13 where Olivier JA held as
follows:
“In my view, the so -called flexible approach or test of legal causation does not
require in the present case either a denial of or limitation to the plaintiff's claim,
apart from questions of proof of the quantum of damages. It must be accepted
that in order to be successful a plaintiff in the respondent's position must prove,
not mere nervous shock or trauma, but that she or he had sustained a detectable
psychiatric injury. That this must be so, is, in my view, a necessary and
reasonable limitation to a plaintiff's claim.”
[24] What then is a detectable psychiatric injury? A Detectable psychiatric
injury is a recognised mental illness or psychological condition (such as
PTSD, Major Depression or anxiety disorder) that is diagnosed by a
professional and proven through evidence rather than a simple, temporary
emotional distress of grief . In his paper, Ahmed R – The influence and
reasonableness in determining delictual or tort liability for psychological
or psychiatric harm in South African and English Law [2023] ,
Potchefstroom Electronic Law Journal, states as follows:
“In English and South African law there is no precise definition of psychiatric
or psychological harm but some form of medically recognised psychiatric or
psychological harm is required, which is that the harm must be reasonably
serious; that is, it must not be trivial or minor. In English law the primary victim
must sustain psychiatric harm from a reasonable fear of harm to himself or
herself. With regard to secondary victims, the psychiatric harm must be induced
by some form of shock. The influence of reasonableness on harm is implicit in
the sense that it is unreasonable to hold the de fendant liable if the harm was not
medically recognised or minor.”
[25] In casu, the evidence of Mosiane and Kanye clearly established negligence
[25] In casu, the evidence of Mosiane and Kanye clearly established negligence
and breach of duty of care on behalf of the defendants. Mosiane was not
present on the day of the incident wh en the babies were swapped. There is
no evidence that th e hospital staff asked the plaintiff to see the baby and
she refused. Mosiane only testified on re-burial, which the plaintiff cannot
dispute as correct. On all issues relating to swapping of the child, he cannot
assist as he was not there. The plain tiff testified that the nurse s did not
show her the child. They only informed her that her child had passed on .
Her family was not shown the child or taken through the process of
handing over of the child.
[26] With regard to Kanye, she testified that she left the plaintiff’s family to go
into the room where the child was on their own. She was busy with other
people as it was covid and too busy. She informed the hearse personnel
what to do but d id not ensure that it is done. She informed the family to
enter but did not state what she told them to look for. She left them there to
fend for themselves. People who had never seen the bab y before and who
do not know how the process of identifying childre n in such situations
works. No evidence has been placed that the hearse people also understood
what they were looking for or knew how to identify the M[...] child. She
came back from attending to the other family with management, asked the
M[...] family if they identified their child to which there is no evidence of
their response. She did not go inside the room where the fridge is to check
and ensure that the correct baby was taken. She knock ed off, went home
and wait ed until the following day when anoth er family complain ed, to
realise that a wrong body of a baby was taken.
[27] Clearly n o proper hand over or identification of the baby was done.
Nothing was said about how the family was assisted in identifying the
child. The plaintiff’s family was not present when the child was born. The
plaintiff herself was not shown the child. How then is it expected that the
family would know how their sister’ s newly still born child looks like.
They were left on their own in a room where corpses are placed. On the
version of both defendants’ witnesses, (Mosiane and Kanye), it is the duty
of the mortuary attendant and ultimately that of the hospital to ensure that
the correct baby is given to the correct family. However, is this sufficient
for the plaintiff to succeed in her claim?
[28] The incident occurred in 2020. The plaintiff claims to have recurring
headaches but no professionally diagnosed medical condition or evidence
was tendered in respect of that. The plaintiff cannot simply allege shock. It
must be substantiated by expert psychiatric evidenc e. I do not know if the
plaintiff has or is suffering Post Traumatic Stress Disorder (PTSD),
Depression, medically diagnosed migraines or anxiety. I do not know how
often the headaches occur, severity of the headaches, in the morning or
when it is cold or otherwise. I do not know if the plaintiff has reached
maximum medical improvement in that she will remain in this mental state
(with headaches) for the rest of her life or the symptoms will resolve over
time and if so how long. I do not know whether the prognosis is good or
poor and if this is permanent or temporary . No evidence to such effect has
been tendered.
[29] At the commencement of the case, Counsel for the plaintiff indicated that
they have a report by a medical expert , however elected not to utilise it or
call the medical expert who authored same. The defendants ’ Counsel also
indicated that they had medical experts but none of them were called. The
plaintiff, at the time of the incident (swapping of the child), was already
suffering grief due to the still born child. As to what extent and how
manifest in her mental or psychiatric health had the swapping of the child
affected her, remains a mystery as no expert evidence has been led in this
matter.
[30] As I have stated earlier , the authorities are clear that for the plaintiff to
succeed in a claim of this nature, she must prove, in addition to negligence
and breach of duty of care, that she has suffered a detectable psychiatric
injury. In the case of R K and Others v Minister of Basic Education and
Others 2020 (2) SA 347 (SCA)(18 December 20290 Leach JA held as
follows:
“[24] In common law countries, claims for so -called nervous or emotional
shock have historically been treated with a good measure of suspicion and
wariness. Underlying considerations appear to have been, inter alia, that the
shock experienced by witnesses to grueso me events is one of the many
vicissitudes of life which people have to face and live up to, and should
therefore not be regarded as actionable, and that to recognise shock as
actionable might open the floodgates of litigation. Thus in Bourhill v Young
Lord Porter said ‘the driver of a car or vehicle, even though careless, is entitled
to assume that the ordinary frequenter of the streets has sufficient fortitude to
endure such incidents as may from time to time be expected to occur in them,
including . . . the sight of injury to others, and is not to be considered negligent
towards one who does not possess the customary phlegm’.
[25] However, for many years now, such a claim has been recognised in this
country where the claimant shows that the nervous sh ock is associated with a
detectable psychiatric injury. Thus, in Bester v Commercial Union this court,
seemingly influenced to an extent by developments in England, held a
psychological or psychiatric injury to constitute a ‘bodily injury’ for the
purposes of delictual liability, and that there was no reason in our law why a
claimant who suffered such an injury as the result of the negligent act of another
should not be entitled to receive compensation.
should not be entitled to receive compensation.
[29] Since then, claims for what has commonly, albeit incorrectly, come to be
called nervous or emotional shock have been allowed in England, where it can
be said that the shock gave rise to a psychiatric injury. Thus, in Alcock v Chief
Constable although a claim for nervous shock was disallowed, essentially on the
basis that the damages were too remote, Lord Oliver stated:
‘There is . . . nothing unusual or peculiar in a recognition by the law that
compensatable injury may be caused just as much by direct assault upon the
mind or the nervous system as by dire ct physical contact with the body. This is
no more than the natural and inevitable result of the growing appreciation by
modern medical science of recognisable causable connections between shock to
the nervous system and physical or psychiatric illness. Ca ses in which damages
are claimed for directly inflicted injuries of this nature . . . are not, in their
essential elements, any different from cases where the damages claimed arise
from direct physical injury . . . .’
As appears from these cases as well as the decisions, inter alia, in White &
others v Chief Constable of Yorkshire & others and Vernon v Bosley (1) in
English law damages are now recoverable for nervous shock or pathological
grief disorder (ie grief which became so severe as to be regar ded as abnormal
and giving rise to psychiatric illness), if certain preconditions for recovery are
satisfied.
[30] The development of the law on this issue in England was, to a large extent,
mirrored in Australia, New Zealand and Canada. In all three of th ose
jurisdictions, damages for ‘nervous shock’ are now recoverable where the
claimant suffers either a physical consequence or some medically identifiable
psychiatric illness or injury. In Tame’s case in Australia, however, the court the
court stressed tha t many of the concerns relating to the recovery of psychiatric
injury receded if full force was given to the distinction between emotional
distress, on the one hand, and recognisable psychiatric illness, on the other.
Doing so reduced the scope for indeter minate liability or increased litigation,
and restricted recovery to disorders capable of objective determination. As the
and restricted recovery to disorders capable of objective determination. As the
learned authors of Fleming’s Law of Torts put it, the court ‘repudiated’ the
earlier policy limitations ‘and held that liability was based on reasonable
foreseeability unfettered by other restrictions’.
[31] It is clear from this that our law is closely aligned to that which prevails in
Australia, and is more flexible than that of England which is bound by certain
policy limitations. However, in all three of these jurisdictions, as well as those
of Canada and New Zealand, a plaintiff can only claim damages for so -called
nervous or emotional shock where it is suffered as a consequence or cause of a
detectable psychiatric injury. Gleeson CJ summarised the position succinctly in
the following terms:
‘. . . save in exceptional circumstances, a person is not liable in negligence, for
being a cause of distress, alarm, fear, anxiety, annoyance or despondency,
without any resulting recognised psychiatric illness.’ ( Tame v New South
Wales para 7.)
To similar effect in Van Soest v Residual Health Management Unit para 28 it
was said:
‘The common law gives no damages for the emotional distress which any
normal person experiences when someone he loves is killed or injured. Anxiety
and depression are normal human emotions. Yet an anxiety neurosis or a
reactive depression may be recognisable psychiatric illnesses, with or without
psychosomatic symptoms. So, the first hurd le which a plaintiff claiming
damages of the kind in question must surmount is to establish that he is
suffering, not merely grief, distress or any other normal emotion, but a positive
psychiatric illness.’
[32] Accordingly, there is no difficulty in recognising in principle the legal basis
of the appellant’s Claim A, which as I understand the pleading, is a claim for
emotional shock attributable to a psychiatric lesion caused by the circumstances
of S’s death. It is a claim long recognised in this country and supported by the
other common law jurisdictions I have mentioned. I shall return to whether
given the facts of this case, liability in respect of that claim was established.
[38] It was argued on behalf of the appellants, however, that our law had
relaxed even further and that this latter requirement was no longer valid. The
argument in this regard was based upon the judgement of this court in Mbhele v
MEC for Health for the Gauteng Province . In that matter, due to negligence on
the part of certain hospital authorities, the appellant’s child was stillborn. She
the part of certain hospital authorities, the appellant’s child was stillborn. She
instituted action for damages in the high court. The matter was decided on a
stated case under Uniform rule 33. The court of first instance held that the
appellant had abandoned her cla im for emotional shock and her claim was
dismissed. This court, on appeal, found that the high court had erred in finding
that the appellant’s claim for emotional shock had been abandoned and
proceeded to consider whether it had been proved. It held that i t had, and
awarded the appellant R100 000 as damages, saying that there could be no
doubt ‘that the appellant experienced severe shock, grief and depression’. It did
so without specific agreement as to the existence of a psychiatric lesion having
been set out in the stated case.
[39] On the strength of this, it was argued that this court had been prepared to
allow damages for grief without proof of there having been a psychiatric injury
to the appellant. It was unfortunate that the trial court had attempted to decide
the matter on a stated case without all the necessary facts being fully and clearly
set out, as was indeed observed by this court in its judgment. However, the
stated case did record that the appellant had suffered from depression, in itself a
mental illness, and it was further held that the appellant had suffered from
emotional shock justifying damages which, too, by its very nature, implies a
psychiatric lesion. At first blush, then, there was sufficient factual material to
show that this was a case in which psychiatric harm had been suffered. But even
more importantly, no reference was made to any of the authorities which have
previously prescribed that grief, without an underlying psychiatric lesion
associated therewith, cannot be the subject of a damages claim. Without those
cases and the ratio of their decisions having been debated and adjudicated, it
cannot be said that they have been overruled by a simple passing comment
relating to grief. The decision in Mhbele is therefore no authority fo r the
proposition that our law has changed and that this court has recognised a claim
for grief where there is no psychiatric lesion.
[50] It would be extremely unfair to disregard the symptoms of grief and
bereavement which the appellants have suffered because of the manner in which
their claim was pleaded. This counsel for the respondents conceded. He also
conceded that in assessing liability for damages under Claim A, regard should
conceded that in assessing liability for damages under Claim A, regard should
be had to the appellants’ extended period of grief; and that what was all owable
in respect that claim should not be limited in financial terms to the amounts
claimed in the particulars of claim. This was consistent with his statement at the
outset of the trial that the claim for grief was intertwined with Claim A, and
would seem to be a practical and sensible solution. The result is that the appeal
against the dismissal of claim A must succeed; and to the extent that the
appellants are entitled to damages for grief and bereavement, account must be
taken of this in assessing the proper quantum of damages under that head. The
appeal against the dismissal of claim B fails because the recoverable damages
described therein are to be compensated under Claim A.”
[31] In all authorities cited, expert diagnosis of psychiatric injury was proven
and necessary. Without expert evidence on detectable psychiatric injury,
and given the issues I have raised above, I find that the plaintiff has not
acquitted herself in the threshold required to succeed in her claim. To find
in favour of a claimant or plaintiff who subjectively and without expert
medical diagnosis, in cases of this nature, claims headaches or psychiatric
injury will lead to chaos and open floodgates for undeserving matters. The
need for medical psychiatric intervention and evidence will assist the court
as both plaintiff and defendant can have experts to prepare joint minutes
which will assist in the evaluation of the psychiatric injury.
Costs
[32] Costs are a discretion of the court. The defendants’ case as contained in
their plea, and submissions by Counsel, has always been that the plaintiff
did not suffer compensable psychiatric injury. I therefore see no reason
why costs should not follow the suit.
Order
[33] I therefore make an order as follows:
1. The plaintiff’s claim is dismissed with costs.
_________________________
J. T. MAODI
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
NORTH WEST DIVISION, MAHIKENG
APPEARANCES
FOR THE PLAINTIFF: Adv N. J. Ferris
Instructed by: Gura Tlaletsi Inc
e-mail: guraattorneys@gmail.co.za
FOR THE RESPONDENT: Adv. M. Moagi
Instructed by: The State Attorney – Mmabatho
e-mail: MasLetsoalo@justice.gov.za
Date judgment reserved: 17 November 2025
Date of Judgment: 27 February 2026