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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MMABATHO
CASE NUMBER: 99/2019
In the matter between:-
MSEGO BEAUTY PHEKO
and
THE MEMBER OF THE EXECUTIVE
COUNCIL FOR THE DEPARTMENT OF
HEAL TH, NORTH WEST
Plaintiff
Defendant
This judgment is handed down electronically to the email
addresses provided by the parties in their respective heads of
arguments. The date that the judgment is deemed to be handed
down is 3 March 2026.
JUDGMENT
FMM Reid J
YES/NO
YES/NO
YES/NO
YES/NO

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Introduction
[1] This matter concerns a claim for damages arising from
alleged negligent medical treatment received by the plaintiff
at Joe Morolong Hospital, a provincial hospital under the
control of the defendant. Th is judgment relates to the finding
on the merits of the matter.

[2] The two main issues before this Court for determination are:
first, whether the plaintiff's application for amendment of her
particulars of claim should be granted; and second, whether
negligence on the part of the defendant's employees has
been proved.

Material factual background
[3] The following facts are either common cause between the
parties through evidence led or are established by the
pleadings and evidence.

[4] On 15 February 2016, a brick fell on the plaintiff's right index
finger, causing an injury that included laceration of the dorsal
aspect of the finger and partial avulsion of the nail.

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[5] The plaintiff attended Joe Morolong Hospital on the same
day. She was attended to in the Casualty Department, where
the injured index finger was cleaned, sutured, and bandaged.
X-ray images were obtained, and the attending doctor
informed the plaintiff that a bone in her finger was broken.
She was discharged with a prescription for Panado and given
an appointment to return after one month.

[6] In paragraph 3 of its plea, the defendant concedes that the
plaintiff attended Joe Morolong Hospital on the following
dates: 15 February 2016, 29 March 2016, 27 April 2016, 6
May 2016, and 7 June 2016.

[7] On 29 March 2016, the plaintiff returned to the hospital as
scheduled. Further x -rays were obtained, and she was
informed that the broken bone had not healed. A further
appointment date for three months later was scheduled.

[8] On the subsequent appointed date, the plaintiff was referred
to Dr Mbali, a physiotherapist. Further x -ray imaging

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confirmed that the broken bone had not healed. She
attended three physiotherapy sessions.

[9] The plaintiff thereafter sought private medical treatment. She
consulted with Dr MA Rakgole, a private general practitioner
in Vryburg, who administered an injection and recommended
that she return to Joe Morolong Hospital for further
management. She did so and received a prescription for pain
tablets.

[10] She then consulted with another private practitioner, Dr Khan
in Vryburg, who referred her for x -ray imaging and informed
her that the broken bone had not healed. Dr Khan wrote a
referral letter to Joe Morolong Hospital, requesting a reply or
report-back.

[11] When the plaintiff returned to Joe Morolong Hospital with Dr
Khan's referral, she was refused treatment by a Dr Viljoen,
an employee of the defendant, who dismissed Dr Khan's
recommendation and reprimanded the plaintiff for seeking
private medical treatment.

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The application for amendment

[12] The legal principles governing amendments are well -
established.

[13] In Affordable Medicines Trust and Others v Minister of Health
and Others 2006 (3) SA 247 (CC) at paragraph 9, the
Constitutional Court affirmed that amendments will normally
be allowed unless the amendment is made in bad faith or
unless the amendment will cause an injustice to the other
side which cannot be cured by an appropriate order for costs,
or unless the parties cannot be put back for the purposes of
justice in the same position as they were when the pleading
which it is sought to amend , was filed. Paragraph 9 reads as
follows:

“[9] The principles governing the granting or refusal of an
amendment have been set out in a number of cases. There is a
useful collection of these cases and the governing principles
in Commercial Union Assurance Co Ltd v Waymark NO 1995 (2)
SA 73 (Tk) at 76D - 76I. See also Caxton Ltd and Others v
Reeva Forman (Pty) Ltd and Another 1990 (3) SA 547 (A) at
565G - 566A.) The practical rule that emerges from these cases
is that amendments will always be allowed unless the
amendment is mala fide (made in bad faith) or unless the
amendment will cause an injustice to the other side which
cannot be cured by an appropriate order for costs, or 'unless the

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parties cannot be put back for the purposes of justice in the
same position as they were when the pleading which it is sought
to amend was filed'. (See Moolman v Estate Moolman and
Another 1927 CPD 27 at 29.) These principles apply equally to a
notice of motion. The question in each case, therefore, is, what
do the interests of justice demand?”

[14] In terms of Rule 28 of the Uniform Rules of the High Court,
an amendment may be granted at any time before judgment.
It has been established that a pplications for amendments
may be entertained and allowed after the parties have closed
their cases. An application to amend may also be brought
during the hearing of an application for absolution and in
certain cases even after the conclusion of argument. See
Kasper v Andrè Kemp Boerdery CC 2012 (3) SA 20
(WCC) at 34C–G.

[15] Applying these principles to the present case, I am satisfied
that the amendment should be granted for the following
reasons:

15.1. First, the amendment clarifies a ground of negligence
already incorporated by implication in paragraph 5 of the
original particulars of claim. Upon a proper reading of
the grounds of negligence originally pleaded, the aspect

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sought to be amended was covered by implication.

15.2. Second, the amendment raises no new matter that could
take the defendant by surprise. Both experts dealt with
this ground thoroughly in their initial reports, their joint
minute, and their testimony in court. Dr Oelofse's
testimony in chief on this aspect was not objected to,
and both experts were cross -examined on this aspect
extensively.

15.3. Third, each ground of negligence is not a separate
cause of action, but forms part of the element of fault in
delictual matters, as recognised in Minister of Safety and
Security v Van Duivenboden 2002 (6) SA 431 (SCA).

15.4. Fourth, even if there were any procedural irregularity in
the timing of the amendment, Uniform Rule 28(10)
empowers this court, notwithstanding anything to the
contrary in the rule, at any stage before judgment to
grant leave to amend any pleading or document on such
terms as to costs or other matters as it deems fit.

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[16] The defendant's objection to the amendment is therefore
without merit. The amendment is granted.

The expert evidence
[17] Both parties called orthopaedic surgeons as expert
witnesses. Dr LF Oelofse testified on behalf of the plaintiff,
and Dr WE Williams testified on behalf of the defendant.

[18] The experts compiled joint minutes on 3 March 2024, which
were placed before the court.

[19] The experts were in agreement on several material aspects.
Both confirmed that the plaintiff sustained an injury to the
right index finger, comprising a laceration overlying the
dorsal aspect of the distal middle phalanges and a fracture of
the distal phalanx.

[20] Both examiners described the plaintiff's complaints as
persistent pain in the right hand exacerbated by attempts at
normal functional use, and restricted motion of the index

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finger and other fingers of the right hand. Dr Oelofse
specifically noted that the restriction had worsened between
an earlier assessment in 2017 and his later consultation on
30 May 2023.

[21] Significantly, both examiners found severe restriction of
motion of all the digits of the right hand, generalised
tenderness of the right hand and wrist, and atrophy of the
thenar and hypothenar eminences of the right hand
(indicating atrophy of the intrinsic muscles of the hand).

[22] Dr Williams, the defendant's expert, found clinical signs
consistent with complex regional pain syndrome (CRPS),
including: trophic changes of the skin (surface dullness and
hypertrichosis), temperature difference between the two
hands, atrophy of the subcutaneous tissues, including the
palmar pulp and the pulp of the fingers , decreased
perspiration of the right hand , and a coarse tremor of the
right arm and hand brought on by simple movements.

[23] X-ray imaging revealed a united or partially -united fracture of

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the distal phalanx of the index finger with mild residual
deformity. Dr Williams also confirmed the presence of
osteopenia of the right hand when compared to x -rays of the
left hand.

[24] Dr Oelofse expressed the opinion that the plaintiff should
have been admitted to hospital and should have undergone a
formal debridement and an open reduction and internal
fixation of the fracture. This opinion was based on the view
that compound fractures require formal debridement, given
the proximity of the fingertip to vulnerable structures such as
tendons and nerves that may have been involved in the
injury.

[25] Dr Williams, for the defendant, initially expressed the opinion
that the initial treatment (cleaning, suturing, antiseptic
dressing, Zimmer splint, and antibiotics) was appropriate and
adequate, even for a compound fracture. He stated that the
fracture was not amenable to internal fixation and that the
injury had healed well with minimal residual scarring and
deformity.

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[26] However, Dr Williams went on to make observations that are
fatal to the defendant's case. He stated that the plaintiff's
long-term impairment is attributable to a complication of the
finger injury, namely complex regional pain syndrome type 1
(CRPS1), which "was not recognised by any of the treating
healthcare professionals" , with the result that the plaintiff
never underwent treatment specifically aimed at this
condition.

[27] Dr Williams further stated, and I quote directly from the joint
minutes: "it is regrettable that no healthcare professional who
attended to the plaintiff could recognise the presence of
CRPS and refer her to the appropriate services or
professionals for appropriate treatment." He concluded that
the failure of treatment in this case seems attributable to the
fact that none of the healthcare professionals who attended
to the plaintiff's hand were familiar with the features of
complex regional pain syndrome.

[28] Both examiners were unanimous that the plaintiff developed

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a persistent and debilitating pain syndrome as a complication
of the injury to the right index finger, and that she retains
severe impairment that can be expected to limit her
substantially in major life activities, including work and leisure
activities.

[29] Dr Williams calculated the plaintiff's whole person impairment
(WPI) at 15%.

[30] Crucially, the experts' opinions on the appropriateness of
treatment diverged in a manner that ultimately supports the
plaintiff's case.

Testimony of the expert witnesses

[31] Dr Oelofse testified in a manner that withstood scrutiny. His
credibility was not attacked during cross -examination, and
his version held up well. He was an impressive witness on all
factors normally considered by this Court.

[32] Dr Williams' testimony unfortunately fell to be criticised.
Under cross-examination, he was pressed on his use of the

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word "regrettable" in the joint minutes. He conceded that his
expression and use of the word "regrettable" is synonymous
with negligence, but that negligence is not a word "that he
can use" as an expert witness.

[33] The significance of this concession is indicative . The
defendant's own expert effectively acknowledged that the
failure to recognise and treat the plaintiff's condition
constituted negligence, albeit using language that avoided
the legal term of art.

Negligence
[34] I turn now to the central question: whether negligence on the
part of the defendant's employees has been proved.

[35] In Minister of Safety and Security v Van Duivenboden (supra)
at paragraph 12, the Supreme Court of Appeal reiterated the
principles governing liability for negligence. The test is
whether a reasonable person in the position of the
defendant's employees would have foreseen the reasonable
possibility of harm to the plaintiff and would have taken

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reasonable steps to prevent such harm.

[36] Applying this test to the facts of the present case, I am
compelled to conclude that the plaintiff has proved
negligence on the part of the defendant's employees.

[37] The evidence establishes that the plaintiff attended Joe
Morolong Hospital on multiple occasions over a period of
several months. Despite repeated presentations with ongoing
symptoms and failure of the fracture to heal, none of the
treating healthcare professionals recognised the developing
complication of complex regional pain syndrome.

[38] Dr Williams, the defendant's expert, was unequivocal: the
condition "was not recognised by any of the treating
healthcare professionals," and "it is regrettable that no
healthcare professional who attended to the plaintiff could
recognise the presence of CRPS and refer her to the
appropriate services or professionals for appropriate
treatment."

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[39] He further stated that the failure of treatment "seems to be
attributable to the fact that none of the healthcare
professionals who attended to the plaintiff's hand were
familiar with the features of complex regional pain
syndrome."

[40] Under cross-examination, Dr Williams conceded that his use
of the word "regrettable" is synonymous with negligence.
This concession was correctly made. The failure to recognise
a known complication of a common injury, particularly when
the patient presents with classic signs and symptoms over an
extended period, falls below the standard of care expected of
reasonable healthcare professionals.

[41] The situation was exacerbated when Dr Viljoen, an employee
of the defendant, refused to heed the referral from Dr Khan
and reprimanded the plaintiff for seeking private medical
treatment. This conduct not only denied the plaintiff an
opportunity for appropriate care but also demonstrated a
dismissive attitude toward the plaintiff's genuine medical
concerns.

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[42] The consequences of this negligence are severe and
ongoing. Both experts agree that the plaintiff developed a
persistent and debilitating pain syndrome as a complication
of her injury. Both agree that she retains severe impairment
that substantially limits her in major life activities, including
work and leisure. Dr Williams quantifies the whole person
impairment at 15%.

[43] Dr Oelofse’s testimony supports a finding of negligence
against the defendant.

[44] The causal link between the defendant's negligence and the
plaintiff's current condition is clear. Had the healthcare
professionals recognised the developing CRPS and referred
the plaintiff for appropriate treatment, the debilitating
progression of this condition might have been prevented or
mitigated. Instead, the plaintiff was left without the benefit of
treatment specifically aimed at her condition.

[45] I find that the defendant, through its employees at Joe

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Morolong Hospital, breached the duty of care owed to the
plaintiff. The failure to properly diagnose and treat the
plaintiff's condition, particularly the failure to recognise and
address the developing CRPS, constitutes negligence for
which the defendant is liable.

[46] The defendant is 100% liable for the damages suffered by
the plaintiff.

Quantum of damages

[47] The parties have agreed that the determination of quantum
should be postponed sine die.

Costs

[48] The plaintiff seeks costs on scale C, inclusive of counsel's
fees. The general rule is that costs follow the result. The
plaintiff has been successful in her claim for amendment and
in establishing negligence on the part of the defendant.

[49] There is no reason to depart from the general rule.

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[50] Regarding the scale of costs, the matter involved complex
medical evidence, including expert testimony from
orthopaedic surgeons on both sides. The joint minutes and
the testimony addressed nuanced medical conditions
including complex regional pain syndrome.

[51] The matter was of sufficient complexity to warrant the
employment of senior counsel. In the circumstances, costs
on scale C are appropriate.

Order

[52] In the premise, I make the following order:
i) The plaintiff's application for amendment of her
particulars of claim is granted.

ii) The defendant is liable for 100% of the plaintiff's proven
or agreed damages.

iii) The determination of the quantum of damages is
postponed sine die.

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iv) The defendant is ordered to pay the plaintiffs costs,
such costs to include the costs of counsel, on scale C.
FMM REID
JUDGE OF THE HIGH COURT
NORTH WEST DIVISION
MAHIKENG
DATE JUDGMENT RESERVED: 27 NOVEMBER 2025
DATE OF JUDGMENT:
APPEARANCES:
FOR PLAINTIFF:
INSTRUCTED BY:
FOR DEFENDANT:
INSTRUCTED BY:
3 MARCH 2026
ADV PJ GREYLING
GILDENHUYS MALAT JI
CO VAN ROOYEN THLAPI
EMAIL: litigation2@vtwinc.co .za
ADV NT MTOMBENI
STATE ATTORNEY
MMABATHO
REF NDABENl/0120/19/P9