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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
CASE NO:2058/2019
In the matter between:-
LPM obo LM Plaintiff
and
THE MEC FOR HEALTH:
NORTH WEST PROVINCIAL GOVERNMENT Defendant
Coram: Mfenyana J
This judgment was handed down electronically by circulation to the parties’
representatives via email. The date and time for hand-down is deemed to be 31 March
2026.
ORDER
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates: NO IL_ __ _
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a. The defendant is liable for payment of 100% of the plaintiff’s proven or
agreed damages, in her representative capacity as the mother and natural
guardian of LM, born on 31 August 2013, consequent upon the hypoxic-
ischaemic brain injury, manifesting as cerebral palsy, which the minor child
suffered as a result of the negligent conduct of the medical and nursing
personnel at the Klerksdorp Hospital on 31 August 2013.
b. The issue of quantum is postponed sine die.
c. The defendant is ordered to pay the plaintiff’s taxed or agreed costs in
respect of the determination of the issue of liability on an attorney and client
scale, taxed on the high court scale, within 14 days of taxation or agreement,
including:
i. The qualifying preparation and reservation costs, travel and
accommodation, attendance of the plainti ff’s witnesses at
court, as well as their costs in respect of consultations, the
preparation of their reports, addend a, and joint expert
minutes, if any.
ii. The plaintiff ’s costs of attendance at medico-legal
examinations and related costs.
iii. The costs consequent on the employment of counsel.
JUDGMENT
Mfenyana J
Introduction
[1] The plaintiff instituted proceedings against the defendant on behalf of her minor
child, LM (“the minor child”), for damages arising from a brain injury suffered by
the minor child during birth at the Klerksdorp Hospital (the hospital).
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[2] The plaintiff alleges that the defendant owed her a duty of care to ensure that
its employees provided medical treatment with the diligence reasonably
expected of qualified medical practitioners and nursing staff. She further alleges
that the hospital staff, acting within the course and scope of their employment
with the defendant, were negligent in various respects in their treatment of her
and the minor child. The plaintiff , therefore, contends that the defendant
breached its duty of care towards her, which also extended to the minor child.
[3] The defendant disputes the plaintiff’s claim and seeks its dismissal.
[4] On 24 October 2023, following application and subsequent agreement between
the parties, I granted an order separating the issues of merits and quantum.
The matter thus proceeded only on the issue of merits, with the issue quantum
postponed sine die.
Preliminary issues
[5] From the beginning, the trial of this matter was marred by delays, irregularities
and a change of tack orchestrated by the defendant. This situation persisted
throughout the trial until its conclusion and remained unchanged despite
several postponements in the matter.
[6] Before the commencement of the trial, joint minutes were filed in respect of
various experts. Notably, with regard to the obstetrician-gynaecologists, two
sets of joint minutes had been filed, one between Dr Songabau for the plaintiff
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and Dr Manthata-Cruywagen for the defendant, and subsequently between Dr
Songabau for the plaintiff and Dr Mtsi for the defendant.
[7] When the trial commenced on 24 October 2023, Ms Sidzumo, counsel for the
defendant, informed the court that the defendant was not seeing eye to eye with
Dr Manthata-Cruywagen due to payment arrangements between them , which
led to the defendant abandoning Dr Manthata-Cruywagen’s report together with
the joint minute she had compiled with Dr Songabau. This appears to be the
reason why the defendant enlisted the services of Dr Mtsi, who duly engaged
with the plaintiff’s expert and compiled another joint minute as already noted.
[8] The defendant, thus, brought an application from the bar seeking to reintroduce
Dr Manthata-Cruywagen’s report as well as the joint minute between her and
Dr Songabau.
[9] The plaintiff opposed the application, citing prejudice as it had prepared its case
and arranged its affairs on the basis that the defendant would not be proceeding
on the basis of Dr Manthat a-Cruywagen’s report and the joint minute she
compiled with Dr Songabau. Mr Patel argued on behalf of the plaintiff that the
plaintiff had consequently consulted on that basis, disregarding these reports
and would need to reconsult with its witnesses to accommodate the new
developments, should the court be inclined to grant the application.
[10] For the purpose of fully ventilating the issues, I granted the application. It was
in the interests of justice for me to do so. In doing so, I took into account the
timing of the application and the fact that the defendant had ample opportunity
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before the hearing date to make all necessary arrangements to avoid a
postponement. I accordingly postponed the matter and ordered the defendant
to pay the costs occasioned by the postponement.
[11] When the matter resumed, nine months later the defendant’s goal post had
shifted. This time, Ms Sidzumo submitted that Dr Manthata- Cruywagen, (on
occasion of whose report the matter had been postponed on the previous
occasion) was not available and was not cooperating with the defendant.
However, despite having engaged Dr Mtsi on the same aspects, the defendant
preferred the angle taken by Dr Manthata- Cruywagen as it put a different spin
on the matter, counsel submitted. She asked that the court should subpoena
Dr Manthata-Cruywagen.
[12] On the o ther hand, Mr Patel, counsel for the plaintiff, argued that in the
circumstances described by the defendant, Dr Manthata-Cruywagen’s report
and the associated joint minute should be excluded. He argued that the
defendant’s conduct was deliberate and contemptuous as it was open to the
defendant to subpoena Dr Manthata-Cruywagen if it so wished.
[13] Having considered the submissions by both counsel, I ruled that the matter
should proceed.
[14] It further appears from the record that on 6 June 2024, the court granted an
order following an application by the plaintiff seeking to compel the respondent
to instruct Dr Manthata-Cruywagen to attend to the obstetrician-gynaecologist
joint minute.
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Factual matrix
[15] The plaintiff, a 19 -year-old pregnant woman, was admitted to Klerksdorp
Hospital on 28 August 2013 after being transferred from the Orkney Clinic (the
clinic) with lower abdominal pain. At about 00h05 on 31 August 2013, she
delivered the minor child vaginally. She avers that she underwent prolonged
labour in circumstances where a caesarean section (C-section) was indicated,
resulting in the minor child’s diagnosis of cerebral palsy due to birth asphyxia.
[16] It is common cause that the minor child was diagnosed with cerebral palsy and
mental retardation consequent upon suffering a hypoxic-ischaemic insult due
to birth asphyxia and/ or hypoxia. He also has epilepsy and presents with
developmental delays, speech deficits and behavioural problems.
[17] Expert reports were filed on behalf of both parties, and in specific instances,
which I deal with hereunder, joint minutes were prepared by the parties’
corresponding experts on key findings, including the pattern of the injury and
the probable time of injury.
[18] The remaining disputes relate to the care of the plaintiff and the minor child and
whether the medical staff of the defendant were in any way negligent during the
labour process.
[19] As it has become prevalent in matters of this nature, clinical records and other
relevant documents are in short supply.
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[20] The following experts prepared joint minutes:
20.1. Radiologists- Prof Andronikou (for the plaintiff) and Dr Kamolane (for the
defendant).
20.2. Midwives – Ms Zondo(for the plaintiff) and Prof. du Plessis(for the defendant).
20.3. Obstetrician- Gynaecologists- Dr Songabau (for the plaintiff) and Dr
Manthata-Cruywagen (for the defendant);
20.4. Obstetrician- Gynaecologists – Dr Songabau (for the plaintiff) and Dr Mtsi (for
the defendant.
20.5. Paediatricians – Dr Kara (for the plaintiff) and Dr Lombard (for the defendant).
Joint Minute of the radiologists – (Prof Adronikou and Dr Kamolane)
[21] In their joint minute, the radiologists agree on most aspects of the injury suffered
by the minor child. In addition, Dr Kamolane noted abnormalities in the Peri-
Rolandic area of the brain. They conclude that the Magnetic Resonance
Imaging (MRI) scan performed on the minor child on 27 September 2019
demonstrates features of a prior basal-ganglia-thalamus injury, in a brain of
term maturity, consistent with a perinatal acute profound hypoxic ischaemic
brain injury in a term infant, which, at the time the scan was performed, was in
the chronic stage of evolution. The MRI further records that there were no
definitive features of a congenital infection or malformation.
[22] The significance of the agreement between the radiologists is that the pattern
observed in the brain of the minor child at the age of 6 indicates that the minor
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child suffered a severe, sudden lack of oxygen and blood flow to the b rain
around the time of birth.
Joint minute of the midwives (Ms Zondo and Prof. du Plessis)
[23] The midwives agree that the plaintiff could be categorised as a moderate risk
patient due to lack of antenatal attendance, maternal anaemia, a urinary tract
infection, and a sexually transmitted disease on admission to the hospital.
[24] They also agree that the plaintiff was transferred to the hospital without delay
and was correctly referred to higher levels of care on observation of
tachycardia.
[25] They agree that the plaintiff’s latent phase of labour was excessively prolonged,
and her assessment and monitoring were not done in accordance with the
protocol.
[26] They further agree that labour was accelerated by administering oxytocin, and
the second stage of labour was not prolonged, but presented with difficulties,
including the hyperflexion of the legs (which is not standard practice with vaginal
delivery) and lack of maternal effort.
[27] The midwives further note that the minor child was born with low Apgar scores.
[28] No documentation was available for the immediate neonatal period, and no
progress reports, completion of the latent phase observation chart or
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assessment and progress of labour were provided. They deferred the care and
management of the neonate after birth to the paediatrician.
[29] The midwives disagree on whether fetal problems were observed during the
prolonged latent phase of labour, with Ms Zondo noting the lack of accurate
documentation and Prof du Plessis noting that on admission, the fetal heart rate
was normal and labour was allowed to continue, which would not have
happened if the fetal condition was compromised.
[30] The second point of disagreement is whether the fetal heart rate remained
without suspicion until the commencement of the second stage of labour. Ms
Zondo does not agree, while Prof du Plessis opines that the fetal heart rate as
plotted in the partograph at 23h00 on 30 August 2013 was normal at 142 beats
per minute (bpm), just half an hour before the commencement of the second
stage of labour.
[31] Finally, Ms Zondo notes that the plaintiff’s account indicates that some practices
by the nursing and medical staff amounted to ‘obstetric violence’ and caused
her trauma during childbirth, an issue Prof du Plessis declined to comment on.
Joint minute of the paediatricians( Dr Kara and Dr Lombard)
[32] Drs Kara and Lombard reached agreement on all aspects. In particular, they
agree that the minor child has dystonic cerebral palsy and impaired cognitive
function. She is partially ambulant and did not have any dysmorphic or
syndromic features.
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[33] Importantly, the paediatricians agree that there were no antenatal risk factors
for a hypoxic ischaemic injury. They further agree that there was fetal
tachycardia at approximately 22h00 on 28 August 2013, and antibiotics were
commenced. At 22h45, the CTG was described as ‘reactive’ and later confirmed
by a doctor at 00h45 on 29 August 2013.
[34] They also agree that there is no record of a sentinel hypoxic-ischaemic event
during the plaintiff’s labour, and that the minor child was delivered vaginally at
term, with an episiotomy on 31 August 2013 at 00h05. She was floppy,
unresponsive and gasping, with Apgar scores of 3/10 and 5/10. She was
resuscitated at birth and put on oxygen therapy. His weight, length and head
circumference were in keeping with an appropriate gestation for a term baby.
[35] Regarding the timing of the injury, both paediatricians opine and agree that the
injury was probably intrapartum, due to the (i) augmentation of labour, (ii)
substandard fetal monitoring as agreed by the obstetricians, (iii) fetal distress
on 30 August 2013, (iv) low Apgar scores and resuscitation at birth, and (v)
neonatal encephalopathy (with no record of any other cause of such outcome
due to inadequate records).
[36] Significantly, the paediatricians agree that the presence of a central patter n of
hypoxic-ischaemic injury and hypoglycaemia, as found in the minor child, when
combined with the neonatal encephalopathy, has an over 80% probability of
being due to intrapartum hypoxic-ischaemia.
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Joint minute between the obstetrician-gynaecologists (Dr Songabau and Dr
Mtsi)
[37] In their joint minute, Drs Mtsi and Songabau agree on various aspects of the
plaintiff’s pregnancy and labour as detailed hereunder:
Antenatal care
37.1. They agree that on probabilities, the plaintiff was a healthy 19-year-old, in her
first pregnancy, with no obvious pre-pregnancy or medical risk factors; her
blood test results were normal. She was assessed as a low-risk patient to
attend antenatal care and deliver at the local clinic. The pregnancy progressed
well and without complications up to full-term gestation; blood pressure and
haemoglobin were normal. With reference to the Guidelines for Maternity Care
in South Africa, 2007(Maternity Guidelines), the y both conclude that the
plaintiff’s antenatal care was satisfactory.
Intra-partum care
37.2. At approximately 22h00, on examination at the clinic, a yellowish vaginal
discharge was noted, ‘show’ was present, and the cervix was 1 cm dilated.
The plaintiff was diagnosed to be in the latent phase of labour with fetal
tachycardia at 173- 177bpm. Membranes were intact, and there was no caput
or moulding. The vaginal infection was treated with antibiotics, and she was
given Ringer’s Lactate and the doctor on call (Dr Maie) was notified to review
the patient. At 22h50, the tachycardia had persisted, and the fetal heart rate
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was at 163-165 bpm, prompting the nursing staff to notify the doctor on call.
However, Dr Maie could not be reached, and the nurses transferred the
plaintiff by ambulance to Klerksdorp Hospital for fetal tachycardia in the latent
phase of labour.
37.3. The plaintiff was admitted to Klerksdorp Hospital at 23h45, and an hour later
she was seen by a doctor, who confirmed that she was in the latent phase of
labour, with the cervix 2 cm dilated. The CTG was reactive. The latent phase
of labour continued from 22h00 on 28 August 2013, as noted by the nurses at
the clinic and later confirmed by the attending doctor at the hospital, until
19h00 on 30 August 2013. The obstetricians agree that there was poor
assessment and suboptimal fetal and maternal monitoring, which increased
the likelihood of an adverse perinatal outcome.
37.4. The doctors note that the fetal tachycardia, which, according to the available
CTG tracings, persisted for seven minutes at 19h20 on 29 August 2013, was
non-reassuring and pathological on 30 August 2013, sustained for 15 minutes,
with no accelerations and no decelerations. No contractions were recorded.
Notably, the obstetricians agree that fetal tachycardia, with reduced variability,
is a non-reassuring sign which warrants delivery, as these abnormalities are
indicative of fetal distress. They further agree that the care given to the plaintiff
in this regard was substandard and the plaintiff ought to have been indicated
for intrauterine resuscitation and an emergency C-section, which was not
done.
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37.5. They further note that there are contradictions between the fetal heart rate
shown in the CTG tracings and that recorded by the nurses. There was also
no continuous CTG monitoring while the plainti ff was on augmentation of
labour. According to the obstetricians, these factors directly increase the
probability of an adverse perinatal outcome.
37.6. The doctors note that the minor child developed early onset of neonatal
encephalopathy within 24 hours of delivery, which may be a marker of
intrapartum fetal hypoxia. The obstetricians deferred to the paediatrician for
issues relating to HIE and birth asphyxia.
37.7. Both doctors agree that there was no sentinel event to justify the poor outcome
of the minor child.
[38] The obstetricians further agree that in the active phase of labour, the plaintiff
also experienced substandard care for various other reasons, including the
inappropriate administration of oxytocin, as augmentation of labour was
contraindicated in the presence of fetal distress; misdiagnosis of cephalopelvic
disproportion(CPD), failure by the doctor on call to timeously review the patient
and indicate a C-section by 16h00 on 30 August 2013, lack of continuous CTG
monitoring during augmentation of labour, lack of senior supervision as the
doctor remotely managed the patient and remotely ordered Pitocin, which itself
caused more injury to the hypoxic foetus. The doctors added that this amounts
to malpractice and negligence.
[39] In conclusion, the obstetricians agree that the management of the minor child
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was complicated by several other factors, including poor record keeping,
substandard care at Klerksdorp hospital with the latent phase of labour
prolonged by 46 hours, with persistent fetal tachycardia and slow progress of
labour; poor intrapartum fetal and maternal monitoring, inappropriate use of the
partogram, misdiagnosis and incorrect interpretation of CTG tracings
suggestive of fetal distress, failure to intervene in the presence of persistent
fetal tachycardia and indicate intrauterine resuscitation and emergency C-
section.
[40] Regarding the timing of the injury, the obstetricians opine that the injury may
have occurred during the second phase of labour, shortly before delivery. This,
they agree is evidenced by various factors such as the description of the minor
child after birth as well as the neonatal course, the diagnosis of severe birth
asphyxia and Meconium Aspiration Syndrome, the fact that the minor child had
seizures within 24 hours of life and the radiological findings which are all in
keeping with moderate to severe hypoxic ischaemic encephalopathy which
occurred secondary to progressive and sustained intrapartum hypoxia. They,
however, concede that the timing of the injury cannot be stated with certainty,
as the MRI cannot confirm it.
[41] The doctors further note that if the combined experts agree that the brain injury
was preventable and was likely caused by intrapartum hypoxia, the
substandard management of the plaintiff ’s labour would be implicated, which
was the reason why the onset of fetal distress was missed and not in
accordance with the Maternity Guidelines.
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Report of Dr Manthata-Cruywagen and the joint minute between Dr Songabau
and Dr Manthata-Cruywagen
[42] Whilst the report of Dr Manthata- Cruywagen forms part of the court record, it
is, stricto sensu, not properly before the court, as there was no compliance with
Rule 38(2) for its admission into evidence. It therefore lacks evidentiary value
and thus cannot be considered. Furthermore, Dr Manthata- Cruywagen was not
called to testify.
[43] The same goes for the areas of disagreeme nt between Dr Manthata-
Cruywagen, as raised in the joint minute. As she was not called to testify, her
opinions as expressed in the joint minute remain inadmissible hearsay.
Evidence on behalf of the plaintiff
[44] Dr Songabau, the obstetrician-gynaecologist and Ms Zondo, the midwife, were
also called to testify.
[45] To a large extent, Dr Songabau confirmed his findings and the agreements
reached in the joint minute with Dr Mtsi.
[46] During cross-examination, he was questioned at length about his conclusion
that the yellowish vaginal discharge on the plaintiff was non-specific and had
no effect on the outcome of the minor child, which he maintained. He stated
that it is a common symptom and in the absence of other components, such as
a urinary tract infection, offensive smell and itchiness being noted, it has no
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effect on the outcome of the minor child. He added that an intervention was
made when the plaintiff was placed on antibiotics.
[47] In relation to his evidence that there was no proper monitoring and record-
keeping, it was put to Dr Songabau that the staff took their work so seriously
that they even noted seemingly insignificant observations, such as the yellowish
discharge. He answered that staff did not always document the progress of
labour and the baby’s condition as required, and further testified that there was
a discrepancy between the CTG and the partogram.
[48] Dr Songabau was further questioned about his erroneous reference to the
plaintiff as a 15-year-old primigravida, which he conceded. It was then
suggested that, given this basic mistake, his report might be riddled with further
errors
.
[49] Importantly, Dr Songabau testified that once it had been identified that there
were contractions but dilatation was stationary; augmentation of labour should
have been done at that stage, which in the present case was at approximately
19h00 on 30 August 2013. As such, the intervention at that stage was late. He
maintained that the plaintiff’s failure to attend antenatal care was immaterial,
given the absence of co-morbidities. Responding to the evidence that the
plaintiff was anaemic when she finally attended antenatal care, Dr Songabau
stated that anaemia has no bearing on the well-being of the baby.
[50] Ms Zondo’s testimony related to the management of the plaintiff’s labour and
poor record-keeping, which she stated was not available to prompt the
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midwives. She also testified to the areas of disagreement with Prof du Plessis.
Ms Zondo stated that there is no indication that labour was allowed to proceed
because the fetal heart rate was normal, as there was no accurate recording.
[51] Regarding whether the fetal heart rate did not remain without suspicion until the
second stage of labour, Ms Zondo testified that there was no adequate plotting
for the entire time, and there was no plotting of the partogram from 18h00 on
29 August 2013 to 11h00 on 30 August 2013.
[52] Lastly, she testified that according to the patient narrative, the practices used
by the nurses constitute obstetric violence practices. She, however, conceded
that she did not interview the plaintiff.
Defendant’s case
[53] On resumption of the matter, following a lengthy postponement, Mr Patel placed
on record that his instructing attorney had received a telephone call from the
defendant’s attorneys that the defendant was conceding liability and was
awaiting a response in respect of a proposed draft order transmitted to the
defendant’s attorneys.
[54] Ms Sidzumo informed the court that she held no instructions to concede liability,
but merely not to continue with her cross-examination of Dr Songabau, who
was under cross-examination on the previous occasion, and not to cross-
examine any of the plaintiff’s witnesses. She further placed on record that the
defendant would not be calling any witnesses. She disagreed with Mr Patel that
her discontinuation of cross-examination would render the matter uncontested
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and susceptible to judgment by default.
[55] In its plea, the defendant pleads that the plaintiff was not in labour at the time
of her admission and that her condition did not war rant a C -section. The
defendant further pleads that the plaintiff was admitted with an infection,
characterised by a yellowish vaginal discharge. The defendant further pleads
that the plaintiff and her unborn child were monitored, and the plaintiff was
advised regularly of the progress of labour . The defendant states that the
plaintiff was in labour for 22 hours, from 01h30 on 30 August 2013 until delivery
on 31 August 2013 and denies that the plaintiff’s labour was prolonged.
[56] Notably, the defendant pleads that the outcome of the minor child was due to
the plaintiff’s failure to employ sufficient maternal effort during the active phase
of labour; her failure to attend antenatal care until 28 weeks of gestation, at
which point it was already very late, and this could have put the minor child’s
health at risk.
[57] In the alternative, the defendant pleads contributory negligence on the part of
the plaintiff in failing to employ sufficient maternal effort and failing to attend
antenatal classes and in having an infection and thus exposing the minor child.
[58] I understand the defendant’s case, as can be gleaned from its plea, to be that
the plaintiff was monitored appropriately, that labour was not prolonged, that a
C- section was not warranted, and the outcome of the minor child was due to
lack of maternal effort.
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Status and purpose of the joint minutes prepared by the plaintiff’s and
defendant’s experts
[59] In Hal obo MML v MEC for Health, Free State 1, the Supreme Court of Appeal
(SCA) underscored the importance of joint minutes as follows: “It is trite that,
where experts agree on a matter of fact in a joint minute, the parties are bound
by that agreement and may not, without more, deviate from it without proper
explanation and consideration of prejudice”.
[60] In Bee v Road Accident Fund 2, the court held that where experts in the same
field reach agreement, a litigant cannot be expected to adduce evidence on the
agreed matters, and unless a trial court is dissatisfied with the agreement and
the parties had been notified of the need to adduce evidence, it would be bound
to accept the issues as agreed by the experts.
[61] Where medical certainty is virtually impossible, a court assessing expert
evidence must decide whether, and to what extent, the opinions are supported
by logical reasoning. It must be satisfied that the expert has weighed
comparative risks and benefits and reached a ‘defensible conclusion’.
[62] I cannot find any compelling reason, nor is there any suggestion that the
agreement, which form the “total body of evidence“ in this matter should be
disregarded. They, therefore, remain binding on the parties. As decreed in Bee,
those experts are not required to testify on the agreed issues unless such
1 2022 (3) SA 571 (SCA) para 49.
2 2018 (4) SA 366 (SCA).
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clarification is required by the court.
[63] Where there are conflicting expert opinions, “the court must determine which, if
any, of the opinions to accept, based on the reasoning and reliability of the
expert witnesses. The court must determine whether and to what extent an
opinion is founded on logical reasoning. An expert’s function is to assist the
court, not to be partisan. Objectivity is the central prerequisite (see Michael &
Another v Linksfield Park Clinic (Pty) Ltd & Another 2001 (3) SA 1188 (SCA)
paras 37-39; Jacobs & Another v Transnet Ltd t/a Metrorail & Another 2015 (1)
139 (SCA) paras 14-15). The expert must not assume the role of advocate. If
the expert’s evidence is to assist the court he or she must be neutral. The expert
should state the facts or assumptions from which his or her reasoning proceeds
(PriceWaterhouseCoopers Inc & Others v National Potato Co-Operative Ltd &
Another [2015] 2 All SA 403 (SCA) paras 97-99).”
3 … “The expert must
demonstrate to the court that he or she has relevant knowledge and experience
to offer opinion evidence. If such knowledge and experience is shown, the
expert can draw on the general body of knowledge and understanding of the
relevant expertise.”
4
[64] The only points of contestation were between the midwives on limited aspects
relating to the fetal heart rate and whether the plaintiff experienced obstetric
violence practices during labour.
3 AD and another v MEC for Health and Social Development, Western Cape Provincial Government
[2016] ZAWCHC 116 para 39.
4 Ibid para 42.
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Plaintiff’s submissions
[65] In its submissions, the plaintiff contends that the harm suffered by the minor
child is clearly demonstrated by the radiologists’ findings that the child sustained
an acute, profound hypoxic-ischaemic brain injury. Counsel submits on behalf
of the plaintiff that the evidence of wrongful conduct and causation on the
defendant’s part is overwhelming, demonstrated, inter alia, by the medical
staff’s failure to interpret the CTG tracings, which, according to the
obstetricians, were suggestive of fetal distress.
[66] Counsel further submitted that the failure to summon a doctor after 8 hours of
labour, as stipulated in the Maternity Guidelines, allowing the latent phase of
labour to be excessively prolonged, also proves the defendant’s negligence. In
addition, disregarding the doctor’s instruction at 17h00 on 30 August 2013 to
perform a C-section was the final blow.
[67] Concerning causation, the plaintiff relies on the decision of the Constitutional
Court in NVM obo KM v Tembisa Hospital & Another
5 for the proposition that
‘probable causation and risk reduction are closely linked’, and that ‘an increase
in risk is the probable cause of the harm’. The evidence in this matter has
established an increase in risk as the probable cause of harm to the minor child.
Thus, there is evidence of direct, and not merely probable causation occasioned
by an increase in risk, the plaintiff further argued.
5 [2022] ZACC 11.
22
[68] Counsel added that the experts agree that the substandard fetal and maternal
monitoring increased the risk of signs of fetal distress being missed, and the
misdiagnosis of CTG tracings further increased the probability of an adverse
outcome. Moreover, they agree that the inappropriate use of the partogram
increased the likelihood of injury due to birth asphyxia.
[69] In summing up, the plaintiff cited Ntsele v MEC for Health, Gauteng Provincial
Government6, submitting that on the probabilities, the facts justify an inference
that the minor child’s injury resulted from the negligence of the defendant’s
employees. Absent countervailing evidence disproving negligence, the only
logical and reasonable inference to be drawn from the defendant’s failure to
provide an exculpatory explanation is that its employees were negligent in not
providing the plaintiff the treatment she was lawfully entitled to in line with the
skill and diligence expected of medical professionals, the submission went.
Defendant’s submissions
[70] In the heads of argument, it is submitted that the plaintiff has not established
that the conduct of the hospital staff was wrongful, negligent and caused the
harm to the minor child, as wrongfulness is not sufficient for delictual liability.
The defendant further avers that the plaintiff has failed to prove that the hospital
staff did not have the necessary skill and that the defendant did not ensure that
the hospital staff treated the plaintiff and her unborn child with the skill, care and
diligence reasonably expected of medical practitioners in similar circumstances.
6 [2013] 2 All SA 356.
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[71] It is further submitted that the plaintiff has not proved that the alleged prolonged
labour caused the minor child’s brain injury, or that a caesarean section would
have produced different and favourable results that would have prevented the
sudden injury. The defendant further avers that the plaintiff has also failed to
establish a contravention of the Constitution, as alleged in the particulars of
claim.
[72] In what appears to be a reliance on the judgment of the SCA in AN v MEC for
Health, Eastern Cape(AN)7, counsel submits that the two matters are similar.
No attempt is made to indicate what those similarities are. It is, however, evident
from the facts of both matters, looked at side by side, that there are more
distinguishing factors than there are similarities. Save for the lack of monitoring
and, to some extent, the nature of the injury, I could not find any other
similarities. Importantly, the sole issue for determination in AN was whether the
lack of monitoring caused the brain injury to the minor child. The experts also
agreed that there was a sentinel event.
[73] In the present case, the experts agree that there was no sentinel event to justify
a hypoxic-ischaemic injury. The experts attribute the adverse outcome to a host
of acts and omissions in the care of the plaintiff and the minor child, including
the following: excessively prolonged latent phase of labour, which ran into days;
sustained fetal tachycardia, misdiagnosis of fetal distress and CPD;
augmentation of labour when it was contraindicated ; failure to refer for
intrauterine resuscitation and emergency C-section.
7 [2019] ZASCA 102; [2019] 4 All SA 1 (SCA).
24
[74] The defendant further contends that because the plaintiff did not testify, there
are gaps in the factual narrative relating to various issues, such as the yellowish
discharge, her monitoring by the hospital staff and why she was not monitored.
In this regard, the defendant relies on Tshishonga v Minister of Justice and
Constitutional Development and Another
8, that an adverse inference must be
drawn from her failure to testify, and there was an intimation that she would be
called as a witness
9.
[75] The defendant also assails that the plaintiff ’s failure to call the radiologist to
testify. While conceding that there was agreement between the parties ’
respective radiologists, the defendant falls short of explaining why it did not call
its radiologist to testify on the aspects it wished to bring before the court. There
is, therefore, no merit to this contention.
[76] The remainder of the defendant’s heads of argument concerns the evidence of
the two witnesses who testified for the plaintiff. As regards Dr Songabau, the
defendant argues that his evidence on the monitoring of the plaintiff and the
minor child is misleading, as it suggests there was no monitoring, whereas his
addendum report states that the monitoring was poor. Counsel submits that,
according to the observation chart (which forms part of the record), monitoring
occurred from 05h00 on 29 August 2013 to 11h00 on 30 August 2013, and
again from 13h00 on 30 August 2013 until delivery. The fetal heart rate on
admission was recorded at 133 to 143 and 173 to 177.
8 [2006] ZALC 104; [2007] 4 BLLR 327 (LC); 2007 (4) SA 135 (LC); (2007) 28 ILJ 195 (LC).
9 M. v MEC for Health, Eastern Cape [2018] ZASCA 141.
25
[77] She further submits that Dr Songabau was untruthful because he downplayed
the importance of antenatal care and the yellowish discharge observed on the
plaintiff on her arrival at the hospital. Counsel then undertakes a linguistic
analysis of the terms ‘poor’ and ‘substandard’ monitoring.
[78] To the extent that these submissions contradict the agreement between the
experts, they are of no consequence and fall to be disregarded.
[79] The defendant argues that, because Ms Zondo did not interview the plaintiff,
her evidence that the plaintiff experienced obstetric violence practices is
hearsay, since the plaintiff did not testify.
[80] Curiously, counsel for the defendant questions why the plaintiff’s witnesses did
not testify about the augmentation of labour, which the defendant classifies as
a ‘positive step’. This is bizarre, if not detrimental to the defendant’s case. Both
Drs Mtsi and Songabau, in their joint minute, agree that the augmentation of
labour constituted substandard care as it was contraindicated in the presence
of foetal distress and misdiagnosis of CPD.
Discussion
[81] The key question in this matter is whether the medical and nursing staff at
Klerksdorp hospital were negligent in their care and treatment of the plaintiff
and her minor child, and if so, whether such negligence contributed in any way
to the outcome of the minor child.
[82] The onus of proving negligence rests with the plaintiff, who must prove on a
26
balance of probabilities that the defendant had a legal duty that it breached.
This would satisfy both the requirements of unlawfulness and negligence. In
Kruger v Coetzee 10, the Appellate Division set out the test for negligence as
follows:
“ For the purposes of liability culpa arises if –
(a) a diligens paterfamilias in the position of the defendant –
(i) would foresee the reasonable possibility of his conduct
injuring another in his person or property and causing him
patrimonial loss; and
(ii) would take reasonable steps to guard against such
occurrence;
(b) and the defendant failed to take such steps.”
[83] This was later confirmed in Botes v van Deventer 11, another decision of the
SCA, where the court held that the nature of damages that might occur need
not be precisely foreseeable, as long as it can be foreseen that the plaintiff will
suffer damages.
[84] If sufficient evidence exists giving rise to an inference of negligence on the part
of one or more of the medical and/or nursing staff of the defendant, it is not
necessary to prove that the inference is the only reasonable inference. What is
required is for the plaintiff to satisfy the court that the inference is the most
readily apparent and acceptable inference from a number of possible
inferences.
12 In respect of professionals such as doctors and nurses, they are
required to adhere to the level of skill and diligence exercised by members of
10 1966 (2) SA 428 (A).
11 1966 (3) SA 182 (AD).
12 AA Onderlings Assuransie- Assosiasie Bpk v De Beer 1982 (2) SA 603 (A).
27
the profession to which they belong, failing which they would be negligent.’13
[85] With regard to causation, the inquiry centres on two questions: first, whether
the harm would have occurred “but for” the defendant’s wrongful conduct; and
second, whether the wrongful act is sufficiently, closely, and directly linked to
the loss. “A plaintiff is not required to establish the causal link with certainty but
only to establish that the wrongful conduct was probably a cause of the loss,
which calls for a sensible retrospective analysis of what would probably have
occurred, based upon the evidence and what can be expected to occur in the
ordinary course of human affairs rather than an exercise in metaphysics.”14
[86] When app lied to the facts of this case, the general consensus among the
experts is that the injury probably occurred intrapartum shortly before delivery.
The plaintiff was in labour from 22h00 on 28 August 2013 until 00h05 on 31
August 2013; the hospital staff did not adequately monitor the plaintiff and the
foetal condition. They essentially left the plaintiff to her own devices. Having
diagnosed her with foetal tachycardia, the doctor on call did not review her
condition as the doctor did not arrive despite being called by the nurses . They
incorrectly interpreted the CTG tracings and failed to diagnose fetal distress .
Consequently, they administered oxytocin when it was contraindicated; they
failed to diagnose or exclude CPD. They failed to indicate the plaintiff for
intrauterine resuscitation and an emergency C-section.
13 Van Wyk v Lewis 1924 AD 438.
14 Minister of Safety and Security v van Duivenboden [2002] ZASCA 79; 2002 (6) SA 431 (SCA) at
para 25; See also: Oppelt v Department of Health 2016 (1) SA 325 (CC) para 45.
28
[87] The submission by the defendant that (for a limited time), the fetal heart rate
was within normal range, on its own, is not an indication of a good outcome as
suggested by the defendant. This submission does not consider the variability,
accelerations and decelerations, and maternal contractions. A reasonable
professional in the position of the staff at Klerksdorp hospital could not have
assumed this as sufficient to guarantee the minor child’s well-being. A
reasonable person in the position of the defendant’s employees would have
foreseen the possibility of harm occurring and would have taken steps to avoid
such harm. The defendant’s employees failed to take such steps.
[88] Concerning the issues identified by the defendant as potential gaps owing to
the failure of the plaintiff to testify, these are medical issues for which the plaintiff
bears no expertise. In the circumstances of this case, they were, in my view,
adequately addressed by the objective medical evidence and documentation
as well as the agreements in the joint minutes.
[89] As far as the differing views between the midwives are concerned, the question
is whether either of the two versions is supported by any evidence. Ms Zondo’s
version is that there were no records and that she could not merely assume that
there were no fetal problems observed. Prof. du Plessis, on the other hand,
bases her assumption on the fact that labour was allowed to progress.
[90] There is no evidence to suggest that labour was allowed to proceed based on
the foetal heart rate.
[91] On the second disagreement, Prof du Plessis’s assumption is based on a
29
recording of the fetal heart rate done half an hour before the commencement of
the second stage of labour, which was within the normal range. She can
therefore not vouch with certainty that this remained the case until the
commencement of the second stage of labour, particularly in light of the various
incidents pointed out by Ms Zondo before the commencement of the second
stage of labour, where there is no record of the fetal heart rate.
[92] Regarding Ms Zondo’s evidence about obstetric violence practices, this is
based on the patient narrative, which forms part of the record. The defendant
did not dispute this evidence and elected to abstain from comment. Ms Zondo
was also not cross-examined on this issue or any part of her evidence. The
undisputed version of the plaintiff’s expert should therefore prevail.
[93] In my view, the issue of whether the plaintiff’s failure to attend antenatal care
contributed to the outcome of the minor child is specifically excluded by the
agreement between the paediatricians that there were no antenatal risk factors
for a hypoxic ischaemic injury. This is confirmed by the agreement of the
obstetrician-gynaecologists. Similarly, the suggestion of a sentinel event
mentioned for the first time in the heads of argument does not accord with the
overall agreements between the experts. Importantly, the paediatricians and
obstetrician-gynaecologists specifically agree that there was no sentinel event
to justify the poor outcome of the minor child.
[94] From the evidence in this matter, it is clear that there were warning signs which
were sustained for some time and were not heeded by the staff at Klerksdorp
hospital. There were several missed opportunities for timely diagnosis and
30
intervention. All these factors, taken as a whole, lend credence to the
conclusion that the brain injury to the minor child was probably a result of the
negligence of the employees of the defendant at Klerksdorp hospital.
Costs
[95] Costs fall within the court’s discretion, to be exercised judiciously. The plaintiff
contends that a punitive cost on the attorney and client scale is warranted, as
the matter could have been finalised expeditiously if the defendant had
timeously placed Dr Manthata-Cruywagen in possession of the CTG tracings
when preparing her initial report.
[96] In this regard, the defendant argues that it was entitled to defend the matter as
the initial report by Dr Manthata-Cruywagen provided a defence which it could
not proceed with due to matters beyond its control. Nothing could be further
from the truth. Despite being in possession of Dr Manthata- Cruywagen’s
report, the defendant enlisted the services of Dr Mtsi, who compiled a report
with Dr Songabau. There is no reason why the defendant could not have
proceeded on that basis, bearing in mind that both Dr Manthata-Cruywagen
and Dr Mtsi were appointed by the defendant.
[97] The defendant’s conduct throughout these proceedings has been shocking to
say the least, and warrants a punitive costs order to signal the court’s
disapproval. As confirmed in Public Protector v South African Reserve Bank,
attorney-and-client costs are justified where a party’s conduct is vexatious,
fraudulent, or amounts to an abuse of process. Here, the defendant’s conduct
31
reflected a lack of bona fides and preparedness, and, to some extent, an ill-
conceived and constantly shifting stratagem to frustrate the process.
[98] In addition, although the defendant’s own experts agreed with the plaintiff’s
experts on the key findings, the defendant persisted with its defence, which to
this day remains unclear. After a lengthy postponement, occasioned by the
defendant’s unreadiness, it was still not ready to proceed when the matter
resumed. A further adjournment after Dr Songabau’s evidence likewise did not
spur the defendant to prepare, and it effectively chose not to participate
meaningfully in the trial.
[99] Given these factors, including the complexity of the matter and the resources
required to dispose of it, I am inclined to agree that a punitive costs order is
warranted.
Order
[100] In the result, I make the following order:
a. The defendant is liable for payment of 100% of the plaintiff’s proven or
agreed damages, in her representative capacity as the mother and natural
guardian of LM, born on 31 August 2013, consequent upon the hypoxic-
ischaemic brain injury, manifesting as cerebral palsy, which the minor child
suffered as a result of the negligent conduct of the medical and nursing
personnel at the Klerksdorp Hospital on 31 August 2013.
b. The issue of quantum is postponed sine die.
32
c. The defendant is ordered to pay the plaintiff’s taxed or agreed costs in
respect of the determination of the issue of liability on an attorney and client
scale, taxed on the high court scale, within 14 days of taxation or agreement,
including:
i. The qualifying preparation and reservation costs, travel
and accommodation of the plaintiff’s expert witnesses, as
well as their costs in respect of consultations, the
preparation of their reports, addend a, and joint expert
minutes, if any.
ii. The plaintiff ’s costs of attendance at medico-legal
examinations and related costs.
iii. The costs consequent on the employment of counsel.
_______________________________ ____
S MFENYANA
Judge of the High Court
North West Division, Mahikeng
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APPEARANCES
For the plaintiff
Counsel: M Patel
Instructed by M.G. Mali Attorneys Inc.
For the defendant
Counsel: WN Sidzumo
Instructed by State Attorney Mahikeng
Date reserved: 20 August 2025
Date of judgment: 31 March 2026