IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION)
Case no.: 2026-049305
In the matter between :
RED CROSS WAR MEMORIAL CHILDREN'S
HOSPITAL
and
MD
PD
In re:
AD
Coram: Pangarker J
Hearing dates: 10 and 11 March 2026
Applicant
First respondent
Second respondent
The minor child (patient)
1

Order granted: 11 March 2026
Reasons delivered electronically: 27 March 2026
Summary: Urgent application by Medical Superintendent of treating hospital in
terms of section 129 of Children's Act 38 of 2005 - Surgical intervention required
for necessary Syme and below knee amputations to minor child's legs - Parents
consistently refused to provide consent on the basis of their
religious/traditional/cultural beliefs - Hospital engaged with parents to accommodate
traditional beliefs - Legislative framework and best interests of minor child standard
considered - High Court's intervention as upper guardian of all minor children
REASONS FOR ORDER
PANGARKERJ
Introduction
[1] This application was instituted on an urgent basis. On 11 March 2026, after
considering the application and the applicant's counsel's submissions, I granted an
order in terms of section 129(9) of the Children's Act 38 of 2005 (the Children's Actlthe
Act) whereby this Court consents to the surgical intervention for the below knee
amputation of the left leg and Syme amputation of the right leg of the minor child, AD
(the minor child), and that the further medical treatment to/of the minor child be
determined by her treating medical team at the applicant, the Red Cross War Memorial
Children's Hospital (the hospital). Further orders were granted as more fully set out
below. Due to the urgency of the matter, I deferred the reasons for such order for later.
These are then the written reasons for the order which I granted on 11 March 2026.
2

[2] As this matter involved a minor child, the identities of the parents and child, who
is a patient at the applicant hospital, are redacted from these reasons. The child, AD,
is currently 6 years old.
The order granted on 11 March 2026
[3] The order granted on 11 March was in the following terms:
IT IS ORDERED THAT:
1. The matter is heard as one of urgency in terms of Rule 6( 12) of the
Uniform Rules of Court, and the forms and service provided for in the
rules are dispensed with to the extent necessary.
2. This Honourable Court, in terms of section 129(9) of the Children's Act
38 of 2005 ("the Children's Act''), consents to:
2. 1 the surgical intervention for the below-knee amputation of the left
leg and a Syme amputation of the right leg of the minor child, A ...
D ... ("the minor child'') born on 7 August 2019 as described in the
founding affidavit of Dr Jessica Browne ("the surgical
intervention''); and
2.2 the administration of any further medical treatment to the minor
child as determined by the minor child's treating medical team at
the appUcant which is in the best interests of the minor child,
3

including but not limited to a psychological evaluation,
assessment, therapy and counselling both pre- and post the
surgical intervention.
3. It is further directed that the minor child is to remain at the applicant
hospital until the surgical intervention and required rehabilitation,
including psychological counselling, be completed.
4. The first and second respondents are prohibited from removing the
minor child from the applicant's hospital during the period referred to in
paragraph 3 above.
5. The applicant's legal representative is required to serve a copy of this
Order on the respondents per email, text message or Whatsapp
immediately upon receipt of the Order.
[4] The application revolved around the urgent need for surgical intervention (leg
amputations) in respect of AD and her parents' continued refusal to provide their
consent for such urgent surgical intervention. AD's parents were the first and second
respondents in the application which first came before me on 10 March 2026 as an
unopposed application. Only AD's father was present at Court together with his sister,
AD's paternal aunt. The child's mother was absent as she spent every day at hospital
with her daughter.
Proceedings on 10 and 11 March 2026
[5] On 1 O March, the matter was called more than once but at approximately
15h00, it had to be postponed due to the unavailability of an interpreter to assist the
4

first respondent who is Xhosa-speaking, and as result of circumstances at Court on
the day which were beyond anyone's control. I requested the input of the Family
Advocate, Cape Town, in the form of a Memorandum to Court regarding the best
interests of the minor child, notwithstanding that the matter did not involve a care and
contact or guardianship dispute. The State Attorney, acting for the hospital, was
requested to urgently serve the application on the Family Advocate, and subsequently
Advocate Hofmeester attended to the matter and provided a Memorandum. AD' s
father was warned to attend Court on 11 March 2026 at 09h00 for the hearing.
[6) On 11 March, the Registrar was requested to contact the father to remind him
of the attendance at Court at 09h00. The Registrar reported back that AD's father
indicated to her telephonically that he was in George and would not attend the
proceedings. Counsel for the hospital later confirmed during the proceedings that her
attorney was informed by AD's mother that her husband would not attend Court on the
day. No opposing papers were delivered and the application thus remained
unopposed.
The Notice of Motion
[7] In its Notice of Motion, the hospital sought the following urgent relief:
1. That the matter is heard is one of urgency in terms of Rule 6(12) of
the Uniform Rules of Court, and the forms and service provided for in
the Rules are dispensed with to the extent necessary;
2. Directing that the applicant's Medical Superintendent be authorised to
consent to:
2. 1 the surgical intervention for the below-knee amputation of the
left leg and a Syme amputation of the right leg as described
in the founding affidavit of Dr Jessica Browne ("the surgical
5

intervention'? of the minor child, A ... D ... ('the minor child")
born.on 7 August 2019; and
2. 2 the administration of any further medical treatment to the
minor child as determined by the minor child's treating medical
team at the applicant which is in the base interests of the
minor child, including but not limited to psychological
evaluation, assessment, therapy and counselling both pre
and post the surgical intervention;
3. That the consent of the respondents be dispensed with in terms of
section 129(6) of the Children's Act 38 of 2005 ('the Children's Act);
4. In the alternative to paragraphs 2 and 3 above, that this Honourable
Court grants consent for the surgical intervention of the minor child, and
any further medical treatment to the minor child as determined by the
minor child's treating medical team at the applicant which is in the best
interests of the minor child including but not limited to a psychological
evaluation and assessment and therapy and counselling both pre and
post the surgical intervention, as contemplated in section 129 (9) of the
Children's Act, where the first and second respondents or refusing to
give their consent;.
5. Directing that the minor child remain at the applicant until the surgical
intervention and required rehabilitation including psychological
counselling be completed;
6. Prohibiting the first and second respondents from removing the minor
child from the applicant's hospital during the period referred to in
paragraph 5 above;
7. Granting such further and/or alternative relief as this Court may deem to
be in the best interests of the minor child.
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The hospital's case for urgent surgical intervention
[8] The deponent to the hospital's affidavit is Dr Jessica Browne, the Manager:
Medical Services and one of two Medical Superintendents of the hospital. AD suffered
from meningococcal septicaemia which is a blood infection caused by bacteria that
releases toxins which damage blood vessels, leading to clots, poor circulation and
necrosis1. In the case of AD, this condition caused necrosis of the tissue in her feet
which resulted in gangrene to both feet.
(9] AD was admitted to the hospital on 19 January 2026 and was critically ill at the
time. She presented with meningococcal septicaemia and had gone into septic shock.
She thus required urgent admission to the intensive care unit (ICU} where she was
intubated and ventilated for four days and required inotropic support. Dr Browne
explained that the diagnosis of meningococcal septicaemia was confirmed on a blood
culture. On 22 January 2026, it was noted that AD's feet had become progressively
discoloured, a condition indicative of general ischaemia and gangrene of both feet.
(1 O] The hospital ~ommunicated the child's condition to her parents. An assessment
was requested from general surgery to determine whether AD was a candidate for
revascularisation2 and the finding was that she was not a suitable candidate. It is
evident from photographs attached to Dr Browne's affidavit that AD's feet were so
discoloured and dark that there was no chance of a successful revascularisation and
no restoration of perfusion as her muscles were not viable.
[11] According to Dr Browne, the only medical treatment for AD in such
circumstances was surgical intervention in the form of amputations of both her legs,
as follows:
right leg
left leg
1 Tissue death
Syme amputation; and
below-knee amputation.
2 Medical procedure whereby blood flow to tissues or organs suffering from ischemia, is restored
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[12] Because of the significant risk of a further infection developing around the
necrotic tissue of the feet, which would inevitably result in an extension of the area of
the legs to be amputated, it was critical that AD received surgical intervention in the
form of amputation as described above, as soon as possible. However, the problem
lay in the fact that AD's parents refused to provide their consent for surgical
intervention based on their traditional and religious beliefs.
(13] AD's parents wished to explore traditional medicine/healing as an option
because, in their view, her condition could be cured without surgical intervention and
therefore, without amputation of her legs. The parents conveyed to the hospital that
the traditional healing would have to take place in the Eastern Cape, and this would
therefore entail that the hospital would have to discharge AD to enable her to travel to
the Eastern Cape for such purposes. However, as seen below, the parents were also
not against traditional healing taking place in Cape Town, but it would still have meant
that AD would have had to be discharged from hospital.
[14] In view of her serious medical condition, and that she was on strong pain
medication which included opioids, the hospital's multi-disciplinary treating medical
team was reluctant to discharge AD in such condition as the result could be fatal. This
decision was conveyed to her parents. AD was administered Heparin to prevent
ongoing coagulation.
[15] On 24 January 2026, AD was discharged from the ICU to the medical ward,
and on 25 January, she was assessed by the orthopaedic team which included
Associate Professor Anria Horn and Dr Sicelo Mkhize. The treatment plan was to
define where the vascularity on AD's feet stopped. Dr Browne explained that
demarcation of the infection was essential for the orthopaedic surgeons to determine
the level and the extent of AD's leg amputations.
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[16) At that stage, however, conflict arose between the parents and the hospital in
that AD's parents refused to consent to surgical intervention for the leg amputations of
their child. Her parents were consulted extensively and comprehensively advised
regarding the reasons why the only definitive medical treatment for AD's lower limb
gangrene was amputation of both legs, as set out above.
[17] The medical team also explained to the parents that to decide on the level of
amputation. it was necessary that the extent of the gangrene had to be assessed.
Notwithstanding all these detailed explanations by the hospital and its medical team,
the parents remained steadfast in their refusal to consent to the surgical intervention.
Considering such refusal, the surgical plan in respect of AD could not be documented.
[18] On 27 January, AD was assessed by Dr Krishna Thottekkat, a paediatrician
from PaedsPal which is a paediatric palliative care organisation in Rondebosch
attached to the hospital. It provides specialist consultative palliative care to babies and
children referred by the hospital and Mowbray Maternity Hospital. The focus is on
complex patients, where time is spent building generalist palliative care capacity to
guide practise. As at the date of the application, Dr Thottekkat was involved in AD's
pain management and other care services.
[19] At the time that Dr Browne deposed to the founding affidavit, and because of
the severe pain in her feet. AD was administered with the following pain medication:
Morphine, an opioid medication used to treat acute pain3;
Gabapentin. an anticonvulsant that treats nerve pain;
Clonidine, used for its pain relief properties; and
Paracetamol.
3 During the hearing on 11 March, counsel for the hospital advised that AD had been weaned off
morphine
9

[20] On 28 January 2026, the medical team noticed new areas of necrosis on AD's
limbs which indicated that the gangrene was progressing. AD was experiencing
uncontrolled pain which was being managed by the treating multidisciplinary team.
[21] On 10 February 2026, and pursuant to a family meeting, the parents again
advised the hospital of their decision to have AD treated by way of traditional healing
and traditional medicines. A tentative decision was made to discharge AD so that she
could travel to the Eastern Cape with her parents to meet with the family elders
regarding treatment with a traditional healer and to discuss surgical intervention.
[22] However, on 11 February, the orthopaedic surgeons assessed AD and decided
against discharging her and allowing her to travel to the Eastern Cape because of her
condition. The multi-disciplinary treatment team were of the view that such decision
was made in the best interests of AD.
[23] On 12 February, the hospital conducted an ethics meeting with the clinical
ethics representatives from the University of Cape Town (UCT) wherein AD's case was
discussed at length, and all possibilities were considered and ventilated. The meeting
concluded that it was not safe to discharge AD in circumstances where she was in
extreme pain and had necrotic feet. In short, the meeting held the view that her overall
condition did not warrant discharge from hospital.
[24] On 13 February, a clinical psychologist, Hilda du Plooy, from the hospital's
Division of Child and Adolescent Psychiatry, and Consultation Liaison: Psychiatry and
Psychology Services, received a request from the hospital's social workers to assess
AD. The idea was to provide a short term psychiatric and psychological assessment ,
focussing on intervention for AD and her family in the event of them experiencing
psychological, behavioural or adjustment difficulties related to her illness,
hospitalisation and treatment. What was required was a psychological assessment

hospitalisation and treatment. What was required was a psychological assessment
and counselling for bi-lateral lower limb amputation.
10

[25) It transpired that AD's mother refused to consent to Ms du Plooy evaluating her
daughter, as she was of the view that this was but another attempt by the hospital to
change the parents' minds regarding consent to surgical intervention. At this stage,
the parental consent was still being withheld. To add, the parents' refusal of consent
remained based on their view that AD's feet, and her overall condition, could be saved
by administering traditional medicine. Simply put, the parents wished to explore their
cultural beliefs and practises with the medical team. After some discussion, the
medical team's decision was to involve a traditional healer or cultural advisor to
accommodate and respect the parents' wishes.
[26] Dr Browne explained that the hospital was culturally sensitive towards ·the
family yet emphasised that AD's best interests should be prioritised. The hospital
administration and its medical staff then involved cultural mediators and traditional
healers in the hope to obtain the parents' consent to the surgical intervention as
described above.
[27] On 17 February, AD was transferred to the orthopaedic ward, and a meeting
was held with her parents to secure a traditional healer of the respondents' choice to
visit her at hospital. For a week up to 23 February, the hospital's social workers
consulted with the parents on the issue, but AD's father remained steadfast: his
daughter was to attend a traditional ceremony in the Eastern Cape to heal her and he
would not return her to Cape Town for a surgical intervention.
[28] Notwithstanding the father's decisive stance, the medical team and hospital
continued to engage with AD's parents. After further discussion with the father, the
hospital proceeded to invite a traditional healer of the parents' choice to the
orthopaedic ward to assess AD. The healer arrived at the hospital, assessed AD and
advised that he could cure her condition with oral medication, topical creams and

advised that he could cure her condition with oral medication, topical creams and
ointment. However, the hospital made it clear that it could not allow traditional healing
within its premises. Considering the hospital's stance, AD's father was of the view that
11

the process was incomplete as the hospital had refused to allow the healer to perform
what he needed to do.
[29] The hospital-family engagement did not end there. A second traditional healer,
who is also a psychologist, was arranged by PaedsPal to discuss the matter with AD's
father and particularly, the view that the traditional healing did not have to take place
in the Eastern Cape. This discussion eventually resulted in the parents inviting another
traditional healer to attend the hospital for a meeting on 23 February. However, this
healer cancelled the appointment on 22 February and accordingly failed to attend the
hospital.
[30) Undeterred, and on 23 February, the hospital's clinical team, social workers and
nurses met with AD's father to determine the position related to traditional healing,
considering the previou_s cancelled appointment. The medical and nursing teams and
social workers impressed upon the parents that any action taken would have to be in
the minor child's best interests and that while the hospital was prepared to provide
time to the parents to engage with traditional healers, given the seriousness of AD's
condit ion, there would only be a certain period of time before it (the hospital) would
seek legal advice in determining the child's best interests in the circumstances .
[31] During the afternoon of 23 February, another traditional healer attended on the
hospital to assess AD. As with the previous healer, he advised that he would use oral
traditional medication and lotion to cure AD's feet and there should then be an
improvement within four days after commencement of the treatment. Furthermore, the
traditional healer conveyed that he would be informed spiritually if there was no
improvement in her condition and in that case, there would be a change of plan. AD's
parents agreed to this plan and understo9d that the traditional healing treatment might
fail. As before, the difficulty which the hospital faced was that traditional healing was

fail. As before, the difficulty which the hospital faced was that traditional healing was
not allowed within the hospital premises.
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[32] The next day the hospital informed the parents of its decision not to allow
traditional treatment in/on its premises. The engagement with the parents' cultural and
traditional views on their daughter's healing did not end there as the hospital also
requested the detail of the parents' elders. The result was that on 25, February, Dr
Mkhize and a social worker, Vuyolwethu Dlwati, contacted Mr Dengane, the father's
uncle. The latter was advised that AD's condition could not be cured and that there
was a real risk that the infection could spread further up her legs.
(33] It was reported to Dr Mkhize and Mr Dlwati that Mr Dengane advised that the
family was aware of AD's medical condition and had seen photographs of her
gangrenous feet and legs. However, he expressed that the family _insisted on pursuing
traditional medicine before amputation, and if the traditional medicine did not improve
AD's gangrene or achieve the desired result, then the family would return the child to
the hospital. Mr Dengane made it clear to Dr Mkhize and Mr Dlwati that the family had
no intention of changing their minds on this aspect.
[34] Dr Mkhize and Mr Dlwati assured Mr Dengane that AD's medical team
respected the family's views and that the family (AD and her parents) would be
supported throughout. Ho~ever, at that stage, all indications were that the parents
would not change their view· about the refusal to consent to surgical intervention in
respect of the child.
[35] The clinical team implored the parents to consider providing their consent to
surgical intervention as they would have preferred to work with the parents to ensure
proper aftercare of AD, including fitting a prosthesis, rehabilitation, physiotherapy and
more. This would require the parents' full co-operation with the hospital. However, the
parents maintained their refusal to consent to surgical intervention. It is noted that Dr
Mkhize and Mr Dlwati deposed to confirmatory affidavits in respect of their involvement

Mkhize and Mr Dlwati deposed to confirmatory affidavits in respect of their involvement
and discussions with AD's family.
13

[36] Aside from what is stated above regarding AD's diagnosis and intended surgical
invention, the remaining significant aspects of Professor Horn's report may be
summarized as follows:
[36.1] In light of a recent systematic review, up to 8% of children treated for
meningococcal septicaemia require amputation of a limb.
[36.2] In AD's case, the definitive treatment for the lower limb dry gangrene was
amputation of the legs, and the latter was determined only after observing the
extent of the gangrene on her lower limbs.
[36.3] The gangrene was irreversible and there was a significant risk of infection
setting in.
[36.4] AD was physically well and not acutely ill and her pain management was
controlled by Dr Thottekkat.
[36.5] Professor Horn confirmed Dr Browne's averments that the hospital's surgical,
medical and social worker teams all engaged with the parents throughout on all
aspects regarding AD's diagnosis, treatment, the need for amputation and the
benefit to be expected.
[36.6] In respect of AD's left leg, the gangrene extended to hind foot level and the
lowest level of amputation possible was a below knee amputation. The
gangrene in the right leg extended to mid-foot with the heel pad spared. The
lowest level of amputation of the right leg was a Syme amputation or ankle
disarticulation, with the result that AD would be able to weight bear on the
amputation stump and derive significant functional benefit through a fitted
14

prosthesis. Weight bearing was not possible on the below knee amputation (left
leg).
[36. 7] AD was unable to stand on her feet and were she to develop an infection on
the right side/leg, the Syme amputation would not be possible due to
compromise of the tissue in her right foot.
[36.8] Professor Horn's view (supported by Dr Browne) was that the surgery should
be performed urgently. Within two weeks after amputation, AD's wounds would
have healed and rehabilitation could commence.
[37] Dr Browne referred to Ms du Plooy's report, which the latter confirmed under
oath in her confirmatory affidavit. According to the report, in cases of lower limb
amputation of a child patient, where the multi-disciplinary team observed trauma,
anxiety, mood or behavioural problems by the patient or her/his family, prior to or post­
amputation, psychological assessment and support are recommended. In the case of
AD, as indicated earlier, the multi-disciplinary team made such recommendations, but
the suggestion of a psychological assessment was rejected by her mother.
[38) Counsel on behalf of the hospital and Medical Superintendent submitted that
the application was urgent and that notwithstanding Dr Browne's averments, which
were supported by the multi-disciplinary medical team's confirmatory and supporting
affidavits, the father's cqnsent to surgical intervention of AD was still withheld. On the
day of the hearing (11 March 2026), we were informed that the mother had eventually
consented that AD should receive the surgical intervention determined necessary by
the treating medical team.
[39] However, by 09h00 on 11 March 2026, it was evident that AD's father had not
changed his mind and all indications were that he would not attend Court. It was safe
15

to therefore accept that he continued to refuse to consent to the surgical intervention.
During the hearing, counsel addressed the Court on the legislative framework at play
in the matter, as well as urgency, locus standi and the role of the High Court as upper
guardian of minor children. These aspects are considered below, after having regard
to the affidavits and annexures in support of urgent relief, the medical evidence and
submissions on behalf of Dr Browne and the hospital.
Locus standi
(40] There is no doubt that in respect of this matter, the provisions of the Children's
Act (the Act) loom large. It is evident that the hospital's continued engagement with
the parents and attempts to obtain their consent for the surgical intervention proved
fruitless, especially in respect of AD's father. The mother also resisted all attempts but
as mentioned above, on the day of the hearing, the Court was advised that she had
consented to the surgical intervention in respect of her daughter.
[41] In terms of section 31 of the Act, major decisions involving a child are taken by
holders of parental rights and responsibilities as defined in section 18(2) of the Act. In
terms of the latter section, parental responsibilities and rights include the responsibility
and right to care for the child. In the case of AD, the parental responsibilities and rights
thus fall on the shoulder of both her parents.
[42] Section 31(1)(a) makes it clear that a holder of parental rights and
responsibilities must, in the case of major decisions involving the child, as set forth in
section 31(1)(b), give due consideration to the views and wishes expressed by the
child, bearing in mind the child's age, maturity and developmental stage. Similarly, the
views of the other co-holder of parental rights and responsibilities must be considered
before a major decision is taken.
16

[43] A major decision which is likely to significantly change or influence a child's
health or well-being would include a surgical intervention for amputation of the child's
legs. It is undisputed that AD was a child under the age of 12 years. Part 3 of the Act
deals with protective measures relating to the health of children. In this regard, section
129( 1) of the Act finds application as a child may be subjected to medical treatment or
surgical operation only if consent is given therefor in terms of section 129(2) to (7) of
the Act.
[44] In the circumstances of this matter, neither section 129(2) nor (3) find
application as these sub-sections refer to a child over 12 years. Section 129 (7) and
(8) also do not apply. The remainder of section 129, which I set out below, finds
application in this matter:
129. Consent to medical treatment and surgical operation
(1) Subiect to section 5(2) of the Choice on Termination of PreanancvAct.
1996 (Act 92 of 1996), a child may be subiect to medical treatment or surgical
operation only if consent for such treatment or operation has been given in
terms of either subsection (2), (3), (4), (5). (6) or en
(2) ..
(3) ..
(4) The parent. guardian or care-giver of a child may, subiect to section 31.
consent to the medical treatment of the child if the child is-
( a) under the age of 12 years: or
(b) over that age but is of insufficient maturity or is unable to understand
the benefits, risks and social implications of the treatment.
(5) The oarent or guardian of a child mav; subiect to section 31. consent to a
surgical operation on the child if the child is-
(a) under the age of 12 vears: or
17

(b) over that age but is of insufficient maturity or is unable to understand
the benefits, risks and social implications of the operation.
(6) The sµperintendent of a hospital or the Person in charge of the hospital in
the absence of the superintendent may consent to the medical treatment of or
a surgical operation on a child if-
( a) the treatment or operation is necessary to preserve the life of the
child or to save the child from serious or lasting physical iniurv or
disabilit y: and
(b) the need for the treatment or operation is so urgent that it cannot be
deferred for the purpose of obtaining consent that would otherwise
have been required.
(7) ...
(8) ...
(9) A High Court or children 's court may consent to the medical treatment of
or a surgical operation on a child in all instances where another person that
may give consent in terms of this section refuses or is unable to give such
consent.
(10) No parent, guardian or care-giver of a child may refuse to assist a child
in terms of subsection (3) or withhold consent in terms of subsections (4) and
f5J by reason only of religious or other beliefs, unless that parent or guardian
can show that there is a medicall y accepted alternative choice to the medical
treatment or surgical operation concerned.
[45] In the absence of consent to the surgical intervention or operation, the
Superintendent of a hospital may consent to the medical treatment of or surgical
intervention/operation on a child in the circumstances set out in sub-section 6(a) and
18

(b). In AD's case, where the parents refused to consent to the surgical intervention and
where the multi-disciplinary team feared a significant risk of further infection around
the necrotic tissue of AD's feet, especially the right foot, her health and life was at risk.
[46] In the circumstances, given the real and imminent risk to AD's health and life
where the parents' consent to surgery was refused, the Medical Superintendent on
behalf of the hospital, stepped in and approached this Court, as she is allowed to do,
in terms of section 129(6) of the Act.
[47) Section 27(1) of the Constitutioh protects citizens' rights to have access to
health care services. In terms of section 28(1 )(c), every child has the right to basic
health care services. Significantly, section 28(2) states that a child's best interests are
of paramount importance in every matter concerning the child.
[48] The aim of the Children's Act is to give effect to children's rights as contained
in the Constitution and inter a/ia, to set out principles related to the care and protection
of children. The paramountcy of the best interests of the child in every matter
concerning the child is echoed in section 2(b )(iv) of the Children's Act, while one of the
further objects of the Act is to promote the protection, development and well-being of
children.
[49] With these objects and protections regarding children at the core of the
Children's Act, it is important to also note that section 15 of the Act provides for the
enforcement of a right in ~he Bill of Rights or in the Children's Act which has been
threatened or infringed. The section states as follows:
15 Enforcement of rights
(1) Anyone listed in this section has the right to approach a competent
court. alleging that a right in the Bill of Rights or this Act has been
19

infringed or threatened, and the court mav grant appropriate relief.
including a declaration of rights.
(2) The persons who mav approach a court. are:
(a) A child who is affected by or involved in the matter to be
adjudicated;
(b) anvone acting in the interest of the child or on behalf of
another person who cannot act in their own name:
(c) anyone acting as a member of, or in the interest of, a group
or class of persons; and (d) anyone acting in the public
interest
[50) Section 8(2), read with sections 15 and 129(6) of the Children's Act allow the
applicant, a public or State hospital4, and the hospitals' Medical Superintendent , to
approach the High Court with a view to protecting AD's right to life, health care and
basic health services. In addition, the above-mentioned legislative framework allows
for the hospital and/or Dr Browne to approach the Court in AD's best interests. I thus
agree with Dr Browne that as Medical Superintendent , she had a duty in terms of the
Children's Act, to act in AD's best interests and seek the protection of the child's rights.
(51] In view of the above discussion and findings, I conclude therefore that both the
hospital and Dr Browne had the necessary locus standi to launch the application. The
fact that Dr Browne is not cited as an applicant, is of no material consequence as she
not only represents the treating hospital where AD is/was a patient but, as mentioned,
the hospital's locus standi is established in terms of the provisions of sections 15(2)
and 8(2) of the Children's Act.
Urgency and medical evidence
[52] There was no answering affidavit filed aria the medical diagnosis and findings
in Professor Horn's report and Dr Browne's affidavit stood uncontroverted. Importantly,
4 Public health services
20

it was evident that at the time of launching the application, there was a significant risk
of infection setting in around the necrotic tissue of AD's feet. It was clear from Dr
Browne's affidavit, read with Professor Horn's report, that while the risk of infection
remained high, in such eventuality where infection spread further in AD's right foot, the
result could be a below the knee amputation instead of a Syme amputation. In those
circumstances, it followed that AD's mobility would be hugely impaired, if not non­
existent.
[53] The risk and threat of further infection and the spread of gangrene higher up
AD's legs, plus the consequences thereof were hugely prejudicial and potentially life
threatening to the young AD. Thus, the imminent risk to AD's health and life in the case
of an urgent amputation where the gangrene had already spread beyond the
demarcated areas, was impressed upon the Court during the hearing. Counsel
reminded me that AD was only 6 years old, and that any further delay in the matter
and the surgical intervention, elevated the serious risks for this young child.
[54] Generally, Courts regard matters involving minor children as inherently urgent.
Having considered the application and submissions, my view was that any further
delay would therefore mean that AD's constitutional rights to life, access to basic
health care5 and her right to dignity, would continue to be infringed while her father's
consent to surgical intervention was being withheld. For all these reasons, the
application was considered as extremely urgent.
[55] The _medical evidence was set forth in considerable detail in the application and
summarised above in the judgment. As mentioned, the evidence also comprised
photographs of AD's which clearly depict the extent of the dry gangrene on her legs.
[56] In support of the application, Dr Browne and Professor Horn attached a medical
review called "Systematic Review of Invasive Meningococcal Disease: Sequelae and
5 Section 28(1)(c) Constitution
21

Quality of Life Impact on Patients and their Caregivers~. It is apparent from this
medical article, that invasive meningococcal disease (IMD) commonly causes life
threatening meningitis or septicaemia.
[57) The authors of the review indicate that the seque/ae in survivors include severe
skin necrosis, amputation of limbs and scarring which require skin grafts. International
studies conducted in children, adolescents and adults indicate that IMD survivors are
affected not only by physical and neurological sequelae, and reduction in quality of
life, but also by psychological and behavioural sequelae. It is apparent from the
medical review that the disease has long-term, life-threatening consequences, which
are irreversible and that the sequelae of survivors manifest physically, neurologically
and psychologically.
[58] From the averments in Dr Browne's affidavit, as read with Ms du Plooy's report,
it is evident that AD and her parents would need psychological support, pre- and post­
amputation. Amputation of a limb is extremely serious, traumatic and would drastically
change the quality of AD's life, hence she and her parents, as her immediate
caregivers, would require psychological therapy to assist in any mental health
challenges and/or negative feelings arising from or regarding the amputation of her
limbs.
[59] In all circumstances, the evidence presented by the medical experts in the
matter, as well as the report by Ms Du Plooy, were accepted. The gravity of the
situation was made clear and appreciated by all concerned, including counsel, the
Family Advocate and the Court. In view of the evidence, I thus accepted that AD's
condition was irreversible and that the only acceptable and/or best medical treatment
available for her in the circumstances, was surgical intervention in the form of a Syme
amputation of the right leg and a .below knee _ampl)tation of the left leg.
6 Infect Dis Ther (20B) 7: 421-438, by KJ Olbrich, D Muller, S Schumacher, E Beck, K Meszaros and F
Koerber JB3)
22

The parents' refusal to consent to AD's surgical intervention
(60] Notwithstanding the fact that this was an unopposed application, it was a
difficult and grave matter which weighed heavily on all. No minor child should have to
undergo an amputation of her limbs, and no parent should have to hear that their
young child, who had barely started out on the journey of life, has a life-threatening
disease where amputation of her lower limbs was the only medical treatment available
for her. I was mindful that the impact on the child, parents and rest of the family, must
surely be profound and possibly devastating.
[61] It is therefore not an everyday occurrence for a hospital, represented by its
Medical Superintendent, to approach the High Court urgently seeking relief to allow
surgical intervention in respect a child and an order dispensing with the parental
consent necessary for such operation. Counsel for the hospital and the Family
Advocate emphasised the need for the High Court to step in. At the same time,
counsel7 remained mindful that parental authority must be respected and that AD's
best interests were pararnount and must be protected. After all, it is AD's right to basic
health care services, life, dignity, care and protection which were at risk because of
the parents' continued refusal of consent.
[62] As indicated above, section 129(1) of the Children's Act requires the consent
of both parents for the surgical intervention to be performed on AD. In addition, section
7(1) read with section 1 of the National Health Act also require that the health service
may only be provided with consent of the user or, as in the case of AD, the consent of
her parents. Section 7(2) of the NHA states that.:
(2) A health care provider must take all reasonable steps to obtain the user 's
informed consent.
7 Adv Mahomed for the hospital and Adv Hofmeester, Family Advocate
23

[63] It is accepted that up until the date of hearing, both parents refused to consent
to the surgical intervention and that AD's mother only provided her consent on the
hearing date. From the above, it was also the case that the consent was withheld on
the basis that the parents wished for AD to receive traditional healing to cure her
gangrenous feet and legs.
[64] Section 15(1) of the Constitution protects a citizen's right to religion,
conscience, thought, belief and opinion, and section 30 recognises a citizen's right to
participate in the cultural life of their choice. Significantly, these sections provide that
the exercise of these rights should not be in a manner inconsistent with any provision
of the Bill of Rights. On the other side of the scale, we have AD's constitutional rights
to dignity8 , life9 and basic health care services10, in addition to the recognition in
section 28(2), that her best interests are/were of paramount importance in all matters
concerning her.
[65) As illustrated above, the parents exercised their right to dignity, culture choice
and religion by insisting that AD underwent traditional healing to cure the gangrene.
The hospital, as a public health establishment11 was required by section 7(2) of the
NHA to take all reasonable steps to obtain the parents' consent to the surgical
intervention.
[66] As can be seen from the facts presented by Dr Browne, the hospital clearly
engaged constantly with the parents. The multidisciplinary medical team, as well as
the social workers and psychologist requested of the parents to provide their consent
given the serious nature of the disease, the fact that AD could not walk and was unable
to travel to the Eastern Cape. Furthermore, the parents were apprised of the diagnosis,
medical treatment, • progress, assessments and the benefits of amputation. It is
8 Section 10 Constitution
9 Section 11 Constitution
10 Section 28(1)(c) Constitution
11 Section 41 NHA
24

apparent that the hospital and staff were keenly aware of the need to obtain the
parents' consent, their traditional and cultural beliefs, and the need for their co­
operation pre- and post-amput~tion.
(67] In respecting the parents' dignity and beliefs, the hospital engaged with
traditional healers and the father's elder to accommodate such beliefs and invited
traditional healers to assess the child in hospital. In this regard, no less than three
opportunities were provided to the parents for traditional healing assessments. In view
of the insistence that traditional healing could only occur in the Eastern Cape, the
orthopaedic team conducted a further assessment to determine whether AD could
travel to the Eastern Cape to undergo traditional healing, and as seen from Dr
Browne's affidavit, supported by Dr Mkhize and Professor Horn, it was concluded that
it was unsafe for AD to travel.
[68] By all accounts therefore, and mindful of the urgency of the situation, the
hospital ensured that every attempt was made to involve the parents and obtain their
consent. In this regard, the hospital was also mindful of section 129(1) of the Children's
Act which requires parental consent for the child's medical treatment or surgical
operation. As illustrated by the conduct of the hospital's medical and nursing staff, the
social workers and psychologist, and PaedsPal, in my view, the hospital displayed a
level of sensitivity and respect for the family's religious and cultural beliefs which was
nothing short of admirable.
[69] However, the problem for the parents and the obstacles for the hospital, a public
health establishment as defined in section 1 read with section 41 of the NHA, were the
following:
[69.1] in terms of section 129(10) of the Children's Act, the parents were not allowed
to refuse or withhold consent in terms of sub-section (4) and (5) because of their
25

religious beliefs unless they could show that there was a medically accepted
alternative to the surgical operation (determined by AD's treating medical team);
(69.2) the proposed traditional healing by the two traditional healers, in the form of
oral traditional medicine, topical creams and ointment, for all intents and purposes, did
not fall under the banner of "health services" nor "municipal health services" as defined
in section 1 of the NHA12;
[69.3) neither of the traditional healers who assessed AD in the hospital ward provided
a medically accepted alternatfve choice to the surgical operation, and it was incumbent
on the parents, or at least the father, to have provided the hospital with a medically
accepted alternative choice, as required by section 129(10) to the hospital or its
Superintendent;
[69.4] all indications were that the hospital could not allow the practise of traditional
healing within its premises, as indicated to the parents and the traditional healers on
more than one occasion.
[70] Thus, in view of these factors and circumstances, the hospital satisfied the
requirements of sections 7(2) of the NHA and 129(1) of the Children's Act.
Furthermore, given the continued refusal of the father's consent based on his religious
and cultural beliefs, contrary to section 129( 10) of the Children's Act, the hospita 1 was
entitled to approach the Court on an urgent basis for relief as set out in the Notice of
Motion and any further or altern~tive relief.
12 In terms of the NHA, "health servicesn mean (a) health care services. including reproductive health
care and emergency medical treatment, contemplated in section 27 of the Constitution; (b) basic
nutrition and basic health care services contemplated in Section 28(1)(c) of the Constitution; (c)
medical treatment contemplated.in section 35(2)(e) of the Constitution; and (d) municipal health
services .
26

The High Court as upper guardian of minor children
[71] In paragraph 2 of the Notice of Motion, the hospital sought an order that in terms
of section 129(6) of the Children's Act, the Medical Superintendent was authorised to
consent to· the surgical intervention as described in the application. However, during
the hearing and because AD's father continued to refuse to provide his consent.
counsel requested the Court to consider granting the alternative relief sought in
paragraph 4 of the Notice of Motion, namely, that in terms of section 129(9) of the
Children's Act, the Court consents to the surgical intervention required for AD.
[72] After the hearing, and having considered the submissions, the Family
Advocate's Memorandum and the application, I indeed granted an order in terms of
section 129(9} of the Children's Act, along with further orders as set out above.
[73] The guiding principle in this matter is section 9 of the Children's Act as read with
section 28(2) of the Constitution. These sections state that in all matters involving
minor children, the best interest of the minor child is paramount. Applying this as the
overarching principle , I was moved to grant an order in terms of section 129(9) of the
Children's Act, rather than an order in terms of section 129(6).
[7 4] The decision to grant such order was based on several factors. Firstly, an order
in terms of section 129(9} was indeed sought as an alternative order, hence it was
always up to the Court to consider it as appropriate relief which was/is sanctioned in
terms of the Children's Act.
[75] Secondly, and significantly, the common law vests a H igh Court with the
authority and role as upper guardian of all minor children within its area of jurisdiction 13.
Ultimately, this Court was called on to strike a balance between respecting the religious
13 Calitz v Calitz 1939 AD 56 at 63; Oosthuizen v Road Accident Fund 2011 (6) SA 31 (SCA) para [15)
27

and cultural beliefs of the parents to allow their child to receive or undergo traditional
healing, versus the protection of the child's right to receive health services, her right
to life and dignity, and the protection of her best interests.
[76) The facts of the case and the continued refusal of the father to provide consent
presented a conflict between these competing rights of the parents to practice their
religion and the exercise of their custom, and AD's rights. Guided by the principle that
in all matters involving children, the best interests of the child is paramount, I refer to
Hay v B and Others14, a matter where the parents of a baby/infant who required an
urgent blood transfusion, objected to the acceptance of the blood transfusion as it was
contrary to their religious beliefs. Having to weigh up the balance between the
competing interests of the parents versus that of the infant, Jajbhay J had the following
to say:
"In terms of section 28(2) of the Constitution of the Republic of South Africa, Act
108 of 1996, (the Constitution) a child's best interests are of paramount
importance in every matter concerning the child. This is the single most
important factor to be considered when balancing or weighing competing rights
and interests concerning children. The duty to afford children protection falls on
the law enforcement agencies, all right- thinking people and ultimately the
Court, which is the upper guardian of all children. These are the principles which
should apply in dealing with the first and second respondents' objections to the
administration of the blood transfusion."
[77] While Hay v B was decided prior to the enactment of the Children's Act, and
therefore the section 129(10) limitation to a parents' religious and cultural objections
where consent to medical treatment and surgical operation in respect of their child was
required, I nonetheless align myself fully with the approach and dicta in Hay v B.
14 2003 (3) SA 492 (WLD) 492 at 4941 - 495 A
28

(78] A similar view was held in Life Health Care Group (Pty) Ltd v JMS (As Parent
and Guardian of the Infant Child MT)15, a judgment of the Gauteng Local Division,
Johannesburg, which dealt with an application by a medical expert and treating doctor
of an infant who faced imminent cardiac failure and respiratory distress and thus
required a lifesaving blood transfusion, except that the parents objected to their child
receiving a blood transfusion based on their religious beliefs. The Court in JMS, in
weighing up the competing interests of the parents and the bests interests of the infant,
found the parents' refusal to consent to the transfusion as unlawful and it exercised its
power in terms of section 129(9) of the Children's Act, and authorised the blood
transfusion.
[79] In my view, the parents' persistence that AD was to be removed to the Eastern
Cape for traditional healing; the father's verbalisation to the medical team that he
would not return AD to Cape Town after the traditional healing ceremony; the parents'
lack of providing a medically accepted alternative choice to the surgical intervention
and the father's continued refusal to consent to the surgical intervention, all informed
me that the father's objection based on religious and cultural beliefs and custom,
placed AD's health, dignity and life at risk. This was not a case where AD, the medical
team and the hospital, had time at their disposal. Thus, I was accordingly convinced
that the limitation presented by section 129(10) of the Children's Act on the parents'
rights in the Bill of Rights to exercise their religious beliefs and custom, was justified
by section 36 of the Constitution.
[80] While I would not lightly interfere with parents' rights to consent and care for
their child, this was a case where intervention in terms of section 129(9) was necessary
and justified. I was mindful that ~he medical eyidence presented that AD was physically

and justified. I was mindful that ~he medical eyidence presented that AD was physically
well, but her condition because of the meningococcal septicaemia was such that she
could not be discharged. There were further areas indicating that the infection had
spread on her limbs and there was thus the immense risk of further infection to her
lower limbs. The surgical interventi9n requested was, in the circumstances. the best
15 (2014) ZAGPJHC 299 para [11)- [16)
29

medical treatment available for AD. In view of the evidence, AD would still, post­
rehabilitation and with the provision of prosthetics and physiotherapy, be mobile.
[81] In all the above circumstances, I was therefore satisfied that the applicant made
out a proper case for an order in terms of section 129(9) of the Children's Act, and the
additional relief as set out in the order granted on 11 March 2026. In conclusion, the
State attorney and counsel for the applicant, as well as the Family Advocate are
thanked for their sensitivity in dealing with this matter. The multi-disciplinary medical
and nursing teams, social workers, psychologist and the hospital, are commended for
their approach to a very difficult matter; their approach to the parents' need to exercise
their religious beliefs and the understanding of the principle that AD's best interests
were (and are) of paramount importance, is appreciated by the Court.
Appearances:
For applicant:
Instructed by:
Adv S Mahomed
Ms N Mboto
State Attorney
Cape Town
For respondents: No appearances
Family Advocate: Adv J Hofmeester
Cape Town
M~~
JUDGE OF THE HIGH COURT
30