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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 5831/2019
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 2026/03/09
SIGNATURE:
In the matter between:
T[...] C[...] M[...] First Plaintiff
ADV. KGAOGELO LETSWALO N.O
(obo D[...] R[...] S[...]) Second Plaintiff
and
MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH
(LIMPOPO PROVINCIAL GOVERNMENT) Defendant
JUDGMENT
BURNETT, AJ
INTRODUCTION
[1] This is an action for damages based on medical negligence.
[2] The First Plaintiff instituted action against the Defendant in her personal
capacity as well as on behalf of her minor child, a boy born on 1 May 2018. On 30
November 2023 a curator ad litem was appointed for the minor child, which curator
was substituted as the Second Plaintiff. To the extent that this court refers to the
minor child in the judgment, the child will be referred to simply as “the baby” or “the
child”.
[3] The parties have agreed to the separation of liability and quantum, and the
court has endorsed that agreement. The matter accordingly proceeded in respect of
the liability only.
COMMON CAUSE FACTS
[4] The following are the common cause facts between the parties: -
[4.1] The child was born on 1 May 2018 following the First Plaintiff’s
attendance at the Tshidimbeni and Tshaulu clinics as well as the Donald
Fraser Hospital for the First Plaintiff’s an tenatal care and admission on 30
April 2018 for the delivery of the child.
[4.2] The Tshidimbeni and Tshaulu clinics as well as the Donald Fraser
Hospital falls under the control and management of the Defendant.
[4.3] The child weighed 5.2kg at birth and had foetal macrosomia (meaning
he was a larger than average baby).
[4.4] The child was born with shoulder dystocia after a traumatic vaginal
delivery. He suffered pain and disability related to the shoulder dystocia and
the Erb’s Palsy that he developed but underwent the necessary surgery
before he was discharged home after his birth.
[4.5] The Plaintiff experienced a difficult vaginal delivery during which she
suffered a fourth -degree perineal tear with a complete injury to the external
sphincter and a partial injury to the internal sphincter, a pelvic facture with a
dislocated symphysis, and a right hip pressure sore.
[4.6] The Plaintiff was under the antenatal and birth care of the Defendant’s
employees at the Tshidimbeni and Tshaulu clinics from 29 No vember 2017
until the child was born on 1 May 2018.
[4.7] Her first antenatal visit was at 16 -weeks gestation and thereafter she
also attended at 20, 26; 30; 34; and 37 weeks gestation.
[4.8] At the first antenatal visit, the Plaintiff weighed 81kg, her he ight was 165
cm, and her BMI (body mass index) was 29.
[4.9] At the visits on 27 December 2017 at 20 weeks, and 5 February 2 -18 at
26 weeks gestation, her urine was not tested for protein and glucose since the
urine dipstix were out of stock.
[4.10] At her fourth antenatal check up at 30 weeks gestation at the Tshawulu
clinic on 5 March 2018.
[4.10.1] It was recorded that the Plaintiff’s weight was 86kg.
[4.10.2] Her urine test showed glucose ++.
[4.10.3] The result of her HGT (Hemo Glucose Test) was 16.4mmo/L.
[4.10.4] The Plaintiff was referred to the Donald Fraser Hospital for
further investigation and management for her elevated blood sugar.
[4.11] On 5 March 2018 the Plaintiff was admitted to the Donald Fraser
Hospital and the following inter alia was recorded: -
[4.11.1] Her weight was 85kg and her height was 1.63m.
[4.11.2] Her blood sugar was 16.5mmol/L.
[4.11.3] On palpitation the SFH (symphysis fundal height) was 34cm.
[4.12] On 6 March 2018: -
[4.12.1] The Plaintiff was diagnosed with diabetes mellitus at 30 weeks
gestation.
[4.12.2] The SFH was recorded at 34 weeks.
[4.12.3] Her HGT was 12.9mm01/L.
[4.13] On 7 March 2018 it was noted by the hospital that: -
[4.13.1] The Plaintiff had gestational diabetes mellitus (“GDM”),
controlled.
[4.13.2] The HGT was 8.5mmol/L.
[4.13.3] She was discharged with treatment to take home.
[4.13.4] She was to come back to the high-risk clinic on 4 April 2018.
[4.14] On 4 April 2018 at 34 weeks gestation: -
[4.14.1] The Plaintiff attended the clinic.
[4.14.2] The height of the uterine fundus was recorded as 40cm.
[4.15] On 25 April 2018 at 37 weeks gestation: -
[4.15.1] The Plaintiff attended the clinic.
[4.15.2] The height of the fundus was recorded as 39cm.
[4.15.3] The Plaintiff was informed that s he requires a caesarean
section (“CS”) because her baby was too big for vaginal delivery.
[4.16] The Plaintiff attended the hospital and was admitted on 30 April 2018
for the assessment, monitoring and management of her labour process and
for the birth of the child.
[4.16.1] The nursing staff or a doctor discussed the option of a
caesarean section with the Plaintiff when she was admitted or at any
time thereafter.
[4.17] The observation chart revealed that on 30 April 2018: -
[4.17.1] At 12h00 the co ntractions were very mild with a frequency of
two every ten minutes and on examination the cervix was 3cm dilated.
[4.17.2] At 15h40 the contractions were mild with a frequency of one
every ten minutes.
[4.17.3] At 19h10 the contractions were still mild.
[4.17.4] The height of the uterine fundus was not measured and
recorded at any above times.
[4.17.5] At none of the above times were any noted made regarding
the Plaintiff’s blood glucose levels and/or the estimated size or weight
of the foetus.
[4.18] The labour initial assessment record reveals that 22h45 on 30 April
2018: -
[4.18.1] On abdominal examination the Plaintiff was 39 weeks
pregnant. [4.18.2] Palpation and the SFH were not recorded.
[4.18.3] The estimate foetal weight (“EFW”) was not recorded.
[4.18.4] The cervix was 4cm dilated.
[4.18.5] There are no antenatal problems and no risk factors identified.
[4.19] At approximately 05h30 on 1 May 2018 the Plaintiff was fully dilated.
[4.20] At approximately 05h55 the midwives delivered the child by difficult
vertex delivery with no doctor present.
[4.21] The child’s weight was recorded as 5020 grams (5,2kg) after the
delivery and 5042 grams (4.42kg) at discharge.
[4.22] The child has an Apgar score of 7/10 and 10/10 at I minutes and 5
minutes respectfully.
[4.23] Should dystocia was noted as a problem during labour.
[4.24] The Plaintiff and the child were transferred to the ward after delivery
with a plan to be discharged on 2 May 2018.
[4.25] On 2 May 2018 the records note that the Plaintiff was kept in the ward
on bedrest and binding was applied.
[4.26] On 10 May 2018 the records note that the Plaintiff’s buttocks were
injured by the linen used to bind her.
[4.27] On 14 May 2018 the doctor noted that the Plaintiff suffered a
third/fourth degree perineal tear during delivery.
[4.28] On 17 May 2018, fourteen days post-delivery, it was noted that: -
[4.28.1] The Plaintiff was still passing stool via the vagina.
[4.28.2] The Plaintiff developed a right hip pressure sore that was not
septic.
[4.28.3] A catheter was in situ with stools noted in the perineum.
[4.28.4] The Plaintiff was transferred to Polokwane Hospital.
[4.29] On 23 May 2018, twenty days post -delivery, the Plaintiff was taken to
theatre for a recto vaginal fistulectomy and repair of a third -degree perineal
tear under general anesthesia.
[4.30] The discharge notes from the Polokwane hospital on 31 May 2018
reveal: -
[4.31] The Plaintiff was treated for a fractured public symphysis (open book)
post a normal vaginal delivery with a dislocated public symphysis.
[4.32] The Plaintiff sustained a fourth-degree perineal tear.
[5] It is common cause that the Defendant owned a duty of care to the First
Plaintiff and the child, and further that the Defendant’s staff members were acting in
the course and scope of their employment with the Defendant when they
administered health care to the First Plaintiff and the child as set out above.
ISSUES IN DISPUTE
[6] The Defendant denies that its employees were negligent in the administration
of their care, and further if found that the employe es were negligent, there was no
casual nexus between the negligence that occurred and the injuries (and the
accompanying damage) that were sustained by the First Plaintiff and the child. For
the First Plaintiff, the injury was inter alia a fourth -degree pe rineal tear (with
accompanying urinary injury) and the open book pelvic fracture, and for the child it
was shoulder dystocia and Erb’s Palsy. The injuries themselves are not in dispute.
EVIDENCE
[7] The First Plaintiff gave evidence in support of her and the child’s claim and
called two expert witnesses, namely Dr. Ndjapa Ndamkou and Dr. Paul Swart. The
Defendant called one factual witness, namely Dr. Baloyi.
The First Plaintiff
[8] The First Pla intiff gave evidence through a Venda interpreter. She testified
that she was treated by the Tshidimbeni and Tshaulu clinics as well as the Donald
Fraser Hospital and the dates on which she was treated.
[9] The First Plaintiff explained in broad terms what happened to her at these
clinics and the hospital, minus any medical terminology. Having regard to her level of
education, it would be unfair to expect her to be able to articulate the various medical
procedures that she underwent. The appropriate medical experts have been
appointed to give evidence on the medical procedures that the First Plaintiff
underwent.
[10] She was able to confirm that her blood sugar and blood pressure levels were
measured at the Donald Fraser Hospital and that she was advised that due to the
size of her baby, she would have to undergo a caesarean section. She was also able
to confirm, again in very broad terms, what her and the baby’s injuries were.
[11] There was no reason to believe that the First Plaintiff was not truthful in th e
testimony that she gave and accordingly the court accepts it as such.
Dr. Ndamkou
[12] Dr. Ndamkou testified via Microsoft Teams from New Zealand.
[13] Dr. Ndamkou testified that he is a Specialist Gynaecologist and Obstetrician
and that he had filed three reports in this matter. He stood by the content of his
report. The Defendant did not oppose the fact that Dr. Ndamkou is an expert, and
having regard the content of his curriculum vitae, the court accepts that Dr. Ndamkou
is in fact an expert witness.
[14] Dr. Ndamkou largely confirmed what is contained in his expert report, a
summary of which is contained on page 26 thereof states that: -
“From the available record, it appears that the Plaintiff attended antenatal care
at Tshidimbeni Clinic, she was booked at 16 weeks and attended her
antenatal care appropriately. She had gestational diabetes and was referred
to the Donald Fraser Hospital for further management where she admitted for
glucose then discharged to her local clinic to continue antenatal c are. This
was appropriate as the Plaintiff was a high -risk patient and should have been
referred to high-risk obstetric care.
The antenatal follow -up was standard because maternal weight gain, the
symphysis fundal weight and the fetal weight assessment wer e not done
according to the prescribed guidelines, which resulted in the inappropriate
management and delivery planning.
Following admission, the Plaintiff was poorly assessed, there was no physical
examination and no estimated fetal weight documented, the re were no scans
performed and the Plaintiff was in labour as early as 28 April 2018. It appears
that the labour was prolonger and the maternal and fetal monitoring, including
the labour progress, was substandard. There is no evidence to suggest that
the Plaintiff was examined by a doctor on admission, taking into consideration
the Plaintiff’s high-risk profile.
The Plaintiff’s labour complicated to shoulder dystocia with a delivery of a
5020-gram baby, during which the plaintiff suffered a third/fourth deg ree tear
and an open book fracture which was missed; and the third/fourth degree tear
was documented as a first-degree tear and then inappropriately repaired. The
management of the third/fourth degree was substandard, complicating to
recto-vagina fistula, requiring repair in Polokwane.
The baby had shoulder dystocia and was seen by a multidisciplinary team.
The management of the Plaintiff during the antenatal period as well as the
intrapartum period was substandard. The hospital staff failed to assess the
maternal weight gain fetal growth and further failed to appropriately assess
the Plaintiff at the time of admission resulting in the mother delivering a
macrosomic baby vaginally.
Had the appropriate assessment performed including ultrasound during the
intrapartum period to assess the fetal weight gain, the Plaintiff would have
been offered a caesarean section as a preferred method of delivery rather
than allowing the mother to deliver vaginally.
From an obstetric point of view and in this case, shoulder d ystocia could have
been prevented had proper assessment and evaluation of the Plaintiff been
done and the third/fourth degree vaginal tear and the open book fracture
could have been prevented.
The injuries sustained by the baby and his mother at the time of the delivery is
attributable in this specific case to the substandard care provided by the
hospital staff during the antenatal period as well as during the intrapartum
period.”
[15] Dr. Ndamkou also confirmed that the initial labour assessment form that was
completed on 30 April 2018 (see paragraph 4.18 above) was incorrect. It was stated
in that assessment that “there are no antenatal problems and no risk factors
identified”, when in fact there were. The medical staff ought to have recorded the
identified”, when in fact there were. The medical staff ought to have recorded the
First Plaintiff’s palpation, the symphysis fundal height and the estimate foetal weight
of the child, and if this was properly recorded, they ought to have realised that the
First Plaintiff required a cesarean section. There still would have been enough time
to arrange a cesarean section at that time, and the baby could have been delivered
safely and without harm to the First Plaintiff and the child, instead the staff induced
the First Plaintiff’s labour.
[16] Dr. Ndamkou testified that the shoulder dystocia suffe red by the child directly
emanated from the vaginal delivery. In respect of the First Plaintiff, the fourth -degree
perianal tear and the open book pelvic ring fracture directly emanated from the
vaginal delivery. The injuries would not have occurred had the First Plaintiff
underwent a cesarean section.
[17] There was no reason to believe that Dr. Ndamkou was not truthful in his
testimony; he came across as very knowledgeable and his evidence was very easy
to follow. He was a credible witness and his evidence was accepted. Whilst the
Defendant filed a Notice in terms of Rule 36 (a) and (b) for its own Specialist
Gynaecologist and Obstetrician, it did not call this expert to give evidence at the trial
to dispute Dr. Ndamkou’s evidence.
Dr. Swart
[18] Dr. Swart testified in person. Dr. Swart testified that he is a Specialist
Urogynaecologist and that he had filed a report on this matter. He stood by the
content of his report. The Defendant did no t oppose the fact that Dr. Swart is an
expert, and having regards his qualifications, the court accepts that Dr. Swart is in
fact an expert witness.
[19] Dr. Swart’s evidence was very eloquent and easy to follow, as was his report.
During his evidence, he was asked to read and then explain certain aspects of his
report.
[20] Dr. Swart confirmed that the First Plaintiff sustained a fourth -degree perineal
tear from the vaginal delivery of the child. The perineal tear that she sustained was
the worst of the wo rst. Following the delivery of the child, the perineal tear was
incorrectly diagnosed as being a grade one tear. He believed that treatment that the
First Plaintiff received after the vaginal birth was inhumane. She was kept in the
ward for two weeks in some sort of linen binder around her body, unable to move
and incontinent of stool and urine. He testified that a perineal tear must be repaired
by the most senior doctor available in theatre under general anesthetic straight away,
however it was done by a midwife in the labour ward. It took three weeks before she
was properly diagnosed and sent to Polokwane Hospital for repair. The delay in
repairing the injury exacerbated the injury and caused further harm.
[21] There is no criticism of the repair of the perineal tear that was eventually done
at the Polokwane Hospital, however: -
“As far as the bladder injury is concerned, she was not so fortunate. The
problem here though is that the induction of labour should never have been
done. When she sustained the p elvic fracture of the sphincter was damaged
and this is not something that can be repaired surgically. There are salvage
measures that one might be able to use to improve the situation, but this
decision can only be made after extensive special interventio ns such as
cystoscopies, urodynamic studies and radiography examinations to exclude
fistulae.”
[22] Dr. Swart also noted in his report that: -
“On gynecological examination the perineal wound has healed with significant
scarring, and she reports that she is no longer incontinent of faeces but has
no control over urine and leaks continuously. There is no urine in the vagina
as one sees where a vesico -vaginal fistula is present. The skin of the
perineum is inflamed since it is always wet with urine leaks. Th e reason for
her urinary incontinence is the destruction of the sphincters of the bladder that
keeps one dry.”
[23] In addition to the perianal tear, the First Plaintiff also fractured her pelvis due
to the traumatic vaginal birth. Dr. Swart testified tha t the fourth -degree perianal tear
(with accompanying urinary injury) and the open book pelvic ring fracture directly
emanated from the vaginal delivery.
[24] There was no reason to believe that Dr. Swart was not truthful in his testimony;
he came across a s very knowledgeable and his evidence was very easy to follow.
He
was a credible witness and his evidence was accepted. The Defendant did not call
its own Specialist Urogynaecologist to give evidence to dispute the evidence that
was led by Dr. Swart.
Dr. Baloyi
[25] Dr. Baloyi was called by the Defendant as a factual witness and who gave
evidence in person.
[26] Dr. Baloyi is the head of Obstetrics and Gynecology at the Polokwane
Provincial Hospital. He confirmed the injuries sustained by the First Plain tiff and that
he repaired the fourth degree and that the open -book fracture of the pelvis was
treated by an Orthopedic surgeon at the same hospital.
[27] There was no reason to believe that Dr. Baloyi was not truthful in his
testimony. He was a credible wi tness and his evidence was accepted, however the
fact that the First Plaintiff received treatment at the Polokwane Provincial Hospital for
her injuries was not an issue in dispute. Dr. Baloyi did, however, confirm the fact that
the First Plaintiff had suffered the injuries that were already common cause.
CONCLUSION
[28] The court is satisfied that from the evidence that was led, the staff at the
Defendant’s facilities were negligent in the medical care that they administered to the
First Plaintiff and the child, and that the Defendant is vicariously liable for the ac tions
of their employees.
[29] The court is also satisfied that from the evidence that was led, there was a
causal nexus between the negligence of the hospital staff and the injuries (and
accompanying damage) sustained by the First Plaintiff and the child.
[30] At the conclusion of the trial the legal representatives for both parties agreed
on how the cost order should be framed, if the court found in favour of the First and
Second Plaintiff. A draft order was handed to the court, which provisions have be en
incorporated in the order.
[31] The way in which the legal representatives conducted themselves during this
trial must be applauded. The trial ran with ease without any difficulty, and the
professionalism of the legal representatives was evident throughout.
ORDER
[32] I accordingly make the following order: -
[32.1] The Defendant is liable for 100% of the proven or agreed damages of
the First Plaintiff and of the First Plaintiff’s son, D[...] R[...] S[...] (“D[...]”), due
to the injuries (and its sequela e) the First Plaintiff suffered during D[...]’s
traumatic vaginal delivery on 1 May 2018, and the brachial plexus Erb’s Palsy
injury (and its sequelae) D[...] sustained.
[33.2] The Defendant shall pay the First and Second Plaintiff’s taxed or
agreed party and party costs of suit for the liability trial that commences on 16
February 2026, on the High Court scale, which costs include:
[33.2.1] The Plaintiff’s costs of obtaining the medico -legal reports and
addendum reports of the Plaintiff’s experts lis ted below relating to the
issue of liability, as well as the said experts’ costs of the preparation of
joint minutes: -
[33.2.1.1] Dr. Modisane, orthopedic surgeon, including the
radiology report annexed to his report and which he relied upon.
[33.2.1.2] Dr. N Ndamkou, obstetrician and gynaecologist.
[33.2.1.3] Dr. Dibote, Paediatrician.
[33.2.1.4] Dr. P Swart, a urogynaecologist.
[33.2.1.5] Professor Muthelo, a nursing expert.
[33.2.2] The reasonable preparation/qualifying and reservation fees (if
any) of the experts listed in paragraphs 33.2.1.1, 33.2.1.2 and 33.2.1.5
above, including the costs of consultations (if any) with the legal team.
[33.2.3] The reasonable preparation/qualifying and attendance fees of
Dr. N Ndamkou and Dr. Swart for their evid ence on 17 and 18
February 2026 respectively, including the costs of consultations with
the legal team.
[33.3.4] The costs occasioned by the employment of counsel on the
party and party Scale C, including the costs of the trial on 16, 17 and
18 February 2026.
[33.3.5] The costs of making up and distributing the various bundles as
agreed upon in the pre-trial minutes.
[33.2.6] The reasonable costs and expenses of accommodation and of
transporting the Plaintiff and D[...] in attending all medico -legal
examinations and consultations by the Plaintiff’s and the Defendant’s
experts, (where applicable), for purposes of preparing their reports for
the trial relating to the issue of liability, subject to the discretion of the
Taxing Master.
[33.3] The costs st ipulated above shall be paid into the trust account of the
Plaintiff’s attorney, the details of which are: -
MWIM ATTORNEYS TRUST ACCOUNT
FIRST NATIONAL BANK
ACC. NR. 6[…]
REF: - M[...]/MN0002
[33.4] The following provisions shall apply regarding the determination of the
Plaintiff’s above-mentioned taxed legal costs: -
[33.4.1] The Plaintiff’s attorney shall serve the notice of taxation on
the Defendant’s attorneys of record.
[33.4.2] Th e Plaintiff’s attorney shall allow the Defendant 30 (thirty)
calendar days to make payment of the taxed costs from the date of
settlement of taxation thereof.
[33.4.3] Should payment not be made in accordance with paragraph
4.2 above, the Plaintiff shall be entitled to recover interest at the
applicable legal rate of interest on the taxed or agreed costs calculated
as from 31 days from the date of affixing of the Taxing Master’s
allocatur or date of settlement of the issue of costs, to date of final
payment.
[33.5] The issue of the determination of the quantum of the First and Second
Plaintiff’s is postponed sine die.
BURNETT, E J A
CTING JUDGE OF THE HIGH COURT,
POLOKWANE; LIMPOPO DIVISION
APPEARANCES
FOR THE 1st and 2nd PLAINTIFF: - ADV. F PAUER
INSTRUCTED BY: - MWIM ATTORNEYS
FOR THE DEFENDANT:- ADV. E M MAHLANGU
INSTRUCTED BY:- THE STATE ATTORNEY (POLOKWANE)
DATE OF HEARING: - 16, 17 and 18 FEBRUARY 2026
DATE OF JUDGMENT: - 9 MARCH 2026