IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON)
CASE NO. 875/2019
REPORTABLE
In the matter between:
THINGAZA NGCOBONDWANA PLAINTIFF
and
MEC FOR HEALTH, EASTERN CAPE DEFENDANT
__________________________________________________________________
JUDGMENT
__________________________________________________________________
Noncembu J
[1] The plaintiff’s husband died at Frere Hospital on 18 June 2019 after having
undergone surgery to rectify abdominal distension and bowel obstruction
(laparotomy), which was performed on 17 June 2019. Consequent upon his passing,
the plaintiff instituted the current action, where she claims damages for loss of
support and general damages against the defendant. The claim is lodged on behalf
of her two minor children and herself.
[2] By agreement between the parties, the issues were separated, and the matter
proceeded on the issue of liability only, with quantum postponed sine die.
[3] At the outset, I deem it convenient to set out the particulars of claim which
crystallise the plaintiff’s claim. They are formulated as follows:
(a) The defendant, duly represented by his employees who were acting within the course
and scope of their employ to the defendant, entered into an oral alternatively, tacit
agreement with the deceased, in terms of which he undertook to provide medical and
surgical services, care, advice and supervision to the deceased who was suffering from a
gastro-related illness complicated by severe abdominal pains;
(b) Alternatively, by accepting the deceased as a patient, the defendant was under a duty of
care to administer the aforementioned services with the professional care and diligence as
can be reasonably expected of a medical facility;
(c) In breach of the agreement, alternatively, the duty of care owed; on 17 June 2019 and at
Frere Hospital, the deceased, who was a known epileptic and on treatment, was denied
proper medical care when he needed it, and the defendant was negligent in that –
(i) his employees failed to attend to the deceased as a special case in need o f
special attention because of his condition when he presented himself for treatment;
(ii) they failed to screen the deceased for pre-existing conditions;
(iii) as a result, the deceased’s pre -existing epilepsy was missed, he underwent a
surgical procedure after which he was placed in a high bed with no side bars, when it
was inappropriate for him in such circumstances;
(iv) shortly after surgery, the deceased had an epileptic fit and fell from the bed on
which he was sleeping, and he died;
(v) the heal thcare professionals who attended to the deceased during admission
failed to properly screen and manage his epilepsy adequately;
(vi) they failed to conduct resuscitation on him when he subsequently fell from his
bed and passed out;
(vii) they failed to conduct proper monitoring post-operatively;
bed and passed out;
(vii) they failed to conduct proper monitoring post-operatively;
(viii) they failed to provide the requisite medical and surgical service with due
professional skill and diligence as can be expected of health care professionals; and
(ix) as a result of the defendant ’s negligence, the deceased passed away in
circumstances that could have been avoided.
[4] In reply to the particulars of claim, the defendant, in his amended plea,
conceded that he had a legal duty to provide medical care and advice to the
deceased with professional skill and diligence as required, but denied that he had
entered into any agreement with the deceased as alleged. He also denied that his
employees failed to administer medical care and treatment to the deceased with the
requisite professiona l skill, care, and diligence, alleging that the deceased died of
natural causes and therefore his death could not be avoided. In amplification of the
plea, the defendant pleaded the following facts:
(a) The deceased was transferred from Cala Hospital, where he received treatment, to Frere
Hospital on 16 June 2019 for further treatment and care due to medical complications;
(b) Prior to his transfer, he had complained of abdominal distension and had been diagnosed
with intestinal obstruction, which required urgent surgery at Frere Hospital;
(c) On his admission at Frere Hospital on 17 June 2019, the deceased's medical history was
investigated, and it was found that apart from his epileptic condition, he had previously
undergone an abdominal laparotomy following a gunshot wound in 1996;
(d) The deceased signed a consent form for another laparotomy to be performed in order to
rectify the abdominal distension and bowel obstruction he presented, and he was
accordingly prepared for theater for the procedure to be performed.
(e) On 18 June 2019, a laparotomy was successfully performed on the deceased
commencing at 01h25 to 02h25;
(f) The deceased was removed from theater in a satisfactory condition on the same day at
03h00 and was transferred to the hospital ward, p laced on a bed with the raised safety rails,
and continuously monitored for postoperative care by a duty nurse;
(g) On 19 June 2019, at about 18h00 and at about 23h00, the deceased complained about
pain, and 2 separate doses of morphine were administered;
(h) Later during the morning on the same day at 02h25, the deceased suddenly and
unexpectedly jumped out of bed and over the bed safety rails in the presence of the duty
nurse, who could not restrain him from this sudden and unexpected action. A doctor was
immediately summoned to attend to the situation.
(i) No bleeding was observed on the deceased, and he was placed back on the bed with the
assistance of the nurses.
assistance of the nurses.
(j) 5 minutes later at 02h30, the deceased started vomiting, gasping and groaning;
(k) After a further 5 minutes, the doctor arrived, and re suscitation was immediately
commenced involving chest compressions, and breaths, with a cardiac monitor attached.
The deceased was breathing at six breaths per minute, and his abdomen appeared tense
and distended.
(l) After 10 minutes of continuous resuscitation, it was observed that the deceased no longer
had dull eye reflexes, and his pupil no longer reacted to light; resuscitation was stopped as
the deceased had, in fact, died.
(m) It is denied that the defendant suffered an epileptic fit as a result of which he fell from the
bed and consequently died as alleged;
(n) A post mortem report performed on the deceased on 22 June 2019 concludes that the
deceased died of septicaemia due to small bowel obstruction, caused by bowel adhesion, all
of which have not been assigned to the surgery performed on the deceased;
(o) It is denied that the deceased suffered an epileptic fit as a result f which he fell and died
as alleged;
(p) It is further denied that the medical staff who attended to the deceased at Frere hosp ital
were negligent, or that they failed to properly screen the deceased on admission and to
properly manage his epilepsy adequately;
(q) It is also denied that the medical and nursing staff at Frere Hospital failed to
conduct proper monitoring of the deceased post-operatively.[5] The plaintiff filed
a replication to the defendant’s plea, where she disavowed any knowledge of the
deceased’s previous surgical history. She contended that if such history is found to
have existed by this court, the defendant’s e mployees failed to manage the
diagnosis thereof properly and in terms of accepted standards and guidelines in
cases of patients with previous laparotomy and or intestinal obstruction.
[6] She also denied that septicaemia was the cause of the deceased’s de ath as
pleaded by the defendant, alleging that if it is found to have been the cause, the
development thereof was caused by the defendant’s employees in that they did not
properly monitor and screen the deceased for the existence of such pre - and post-
operatively.
[7] The allegation by the plaintiff was that the failure to investigate the source of
the deceased’s pain post -operatively, which could have led to the discovery that
septicaemia was the cause thereof, amounted to negligence on the part of the
defendant’s employees. In the alternative, it was contended that in the event this
court should find that septicaemia, and not falling from a bed as alleged by the
plaintiff, was the cause of death, such was due to the failure of the defendant’s
plaintiff, was the cause of death, such was due to the failure of the defendant’s
employees to properly investigate the plaintiff’s condition on admission, and
therefore missing the diagnosis of septicaemia when by exercise of reasonable care
and skill they ought not to have missed it.
Factual background
[8] It is common cause that the plaintiff’s husband (the deceased) was attended
at Cala Hospital on 16 June 2019, where it was established that he needed urgent
surgical treatment to rectify intestinal obstruction and abdominal distension. As
such, he was transferred to Frere Hospital, w here he was admitted for the said
procedure to be performed.
[9] The plaintiff gave evidence that the deceased had complained of pain, and
she asked his sister, Zoliswa Ngcobondwana, to take him to Cala Hospital as she
(plaintiff) was looking after a baby. She later followed and found the deceased in the
hospital, vomiting, saying that he was going to be taken to Frere Hospital. The
deceased was indeed taken by ambulance to Frere Hospital, and his sister went
along with him. Whilst at Frere Hospital, the deceased told the plaintiff via telephone
that he was to be taken for surgery on the following day (17 June 2019).
[10] On the following day, the plaintiff could not get hold of the deceased when she
tried calling him, until around 22h00, when he told her that the surgery had been
successful. They conversed over the phone for about an hour.
[11] The next day, 18 June 2019, she received a telephone call from her in -laws
very early in the morning, and she was taken to their place, where she was informed
that her husband had passed away. When she enquired how that had happened,
she was told that he had fallen from his bed around 3 in the morning.
[12] On making enquiries at the hospital, she was told that the body of the
deceased had been taken to forensics. Beyond that, she could not get any answers
as to what had happened. When she could not get answers from the hospital, she
thought that perhaps her husband had suffered an epileptic seizure and fallen, as a
person who suffered from epilepsy. The family then conducted a funeral for the
deceased.
[13] She is seeking compensation as the deceased was the sole breadwinner at
deceased.
[13] She is seeking compensation as the deceased was the sole breadwinner at
their home. She is now strug gling to support her two children; one of whom is doing
her third year at Walter Sisulu University (WSU), whilst the youngest is doing grade
1. She told the court that before his passing, the deceased had been employed by
Red Guard as a security officer. S he, however, did not know how much he earned,
nor could she produce any pay slip or other documentation confirming his
employment.
[14] The plaintiff denied that her husband suffered from dementia, as was
recorded in his medical files, but admitted that h e was a smoker and partook in
alcohol.
[15] Zoliswa Ngcobondwana, who is the sister of the deceased, confirmed that she
received a call from the plaintiff on 16 June 2019 informing her that the deceased
was not well. On arrival at their home, she found th e deceased bending down,
vomiting, and having hiccups. She organised a vehicle and took him to Cala
Hospital. At the hospital, the deceased was examined by a doctor who took X -rays
and said that there was a problem with his bowel, something about his intes tines
being intertwined. The doctor called Frere Hospital and said that the deceased was
going to be transferred there, as there was a doctor there who was going to help
him.
[16] She went together with the deceased in the ambulance to Frere Hospital,
where the deceased was admitted. At Frere Hospital, she was busy with the
paperwork at the reception whilst the deceased was being admitted into the ward.
She therefore never went inside the ward. A day after the deceased was admitted,
they received the news that he had passed away. They went to the hospital, where
they were assisted at the helpdesk and then referred to the mortuary. They never
entered the ward where the deceased had been admitted.
[17] She could not explain why the deceased was recorded as having been
unemployed on one of the defendant’s documents (page 14 of the defendant’s trial
bundle), which document was purportedly completed by her. According to her
evidence in court, the deceased was employed as a security officer at the time of his
demise.
[18] Ebenezer Nyarko is a relative of the deceased, an attorney by profession,
who lives in Berea, East London. He visited the deceased at Frere Hospital after he
had undergone his surgery on the morning of 18 June 2019. The deceased was in
high s pirits, saying that the operation was a success and he would be able to go
home in the next two days or so. He observed that the deceased’s bed was too high
and commented to one of the nurses there, who responded by saying that they
knew what they were doing.
[19] Very early on the following morning, they received a call from the hospital,
informing them that the deceased had passed away. They proceeded to the
hospital, where they found that the deceased had already been removed from his
ward and taken to Woodbrook, presumably for a post -mortem examination. On
enquiring, they were given conflicting stories about what had happened. One nurse,
whom he believed had not been present before, said that the deceased had died on
the operating table. They told her t hat they had seen the deceased after his
operation, and he was okay. This made Mr Nyarko suspect foul play.
[20] Professor (Prof) Franco Plani is a trauma surgeon and critical care practitioner
at Chris Hani Baragwanath Hospital. His expertise as a trauma surgeon was not
placed in issue. According to Prof Plani, the deceased had received sub -standard
care at Frere Hospital, which probably led to his untimely demise. He based this on a
number of factors, which are summarised below.
[21] Based on the infor mation he had gleaned from the deceased’s hospital
records, he testified that the deceased patient was an epileptic defaulter who clearly
needed to be placed on anti -seizure medication from the time he was admitted at
Frere Hospital for further care and tr eatment (which included the laparotomy surgery
to rectify his abdominal distention and bowel obstruction). His evidence was that,
given that the patient’s history of epilepsy was recorded in his referral letter from
given that the patient’s history of epilepsy was recorded in his referral letter from
Cala Hospital, the epileptic drug (Epanu tin) should have been administered to him
intravenously from the morning of 15 June 2019 to control possible seizures. He
considered the failure to do so to have amounted to sub-standard care.
[22] He also criticized the fact that no epilepsy was mention ed in the assessment
notes of the patient on 16 June 2019, despite the referral letter making it clear that
the deceased was an epileptic patient. According to him, in medical practice, if
something has not been recorded, it means that it did not happen. H e joined issue
with the fact that after the surgery was completed, the patient appeared to have been
in a satisfactory condition, and yet again, no mention was made about his epilepsy or
treatment.
[23] He critici sed the administering of the drugs propofo l and isoflurane to the
patient by the anaesthetist before the surgery, claiming that both drugs were
associated with the possibility of triggering epileptic fits. Also, he questioned the fact
that no records existed of any anti -seizure medication having b een administered by
the anaesthetic team to the deceased.
[24] He acknowledged that the surgery performed on the deceased was an
uncomplicated procedure consisting of a resection and stapled anastomosis, but he
questioned the fact that no mention was made of any perforation of the small bowel
or peritonitis in the surgical notes. He noted that the patient was discharged from the
theatre in a satisfactory condition, that the nasogastric tube and catheter were
removed, and he was introduced to a fluid diet, alert and responsive, mobili sing
independently out of bed and a waiting referral to commence physiotherapy, but he
questioned that no further notes were available to corroborate explanations around
his last hours and resuscitation phase.
[25] In his opinion, the post -operative care and emergency response to the
deceased’s alleged fall were profoundly inadequate. There were no records
documenting the critical events surrounding his deterioration, including the absence
of a proper resuscitation record, the failure to secure the airway through intubation,
and an unclear timeline of medical intervention.
and an unclear timeline of medical intervention.
[26] He disputed Dr Zondi and Dr Promnitz’s opinions (defendant’s experts) that
the patient died from complications arising from sepsis and peritonitis. This was
based on the fact that no blood culture or blood speci men was done as evidence to
prove the said findings. He opined that the patient may have felt like vomiting after
being given morphine and that, possibly having been started on fluids very early after
the surgery, may have aspirated, since it was mentioned that he was given chest
compressions and breaths, presumably with a face mask on, given that there was no
mention of intubation having been attempted.
[27] He also criticised the findings and conclusions of the post -mortem report
performed by Dr Zondi on the deceased, stating that no reasons were provided as to
why a limited post -mortem was conducted, why the deceased’s skull was not
opened, and his brain was not examined. According to him, a traumatic brain injury
could have been the cause of the deceased’s death after he fell from the bed.
[28] He also took issue with the classification of the deceased’s death as having
been due to natural causes, stating that, in terms of regulations, death resulting from
complications in surgery or after surgery cannot be classified as natural causes.
[29] Dr Gregory Paul Promnitz testified on behalf of the defendant. He is an expert
physician specialising in the management of complex internal medicine in respect of
both acute and chronic conditions. He told the cour t that he had been involved in
intensive care unit complications following surgery in private practice for many years.
He also told the court that specialist physicians are often referred to as ‘doctors of
doctors’, as they are consulted by general practit ioners, trauma surgeons, and
general surgeons in cases where patients present with multiple unclear diagnoses.
[30] He said that as a physician, he has the expertise to give an opinion on the
management of epilepsy. He is often consulted intra - and post-operatively, where no
neurologist physician takes over the function of chronic treatment. In his view, a
trauma surgeon is not qualified to give an expert opinion on the management of
epilepsy.
[31] With regards to the cause of death, Dr Promnitz opined, after seeing the
epilepsy.
[31] With regards to the cause of death, Dr Promnitz opined, after seeing the
findings of the post-mortem report, that the deceased died from peritonitis secondary
to a small bowel perforation, which could have occurred postoperatively or been
present at the time of surgery. He noted in his supplementary report that the
peritonitis and resultant infection would have caused the development of acute
pulmonary oedema, as documented in the post-mortem report, most likely secondary
to the Adult Respiratory Distress Syndrome, resulting in hypoxia and the
cardiorespiratory arrest.
[32] He said that following surgery, the deceased initially appeared to be
recovering well. However, the subsequent ground vomiting was indicative of a
gastrointestinal bleed, and gasping was more likely due to hypoxia (low oxygen
levels). By the time a clinician attempted resuscitation, the deceased was already in
cardiac arrest with no measurable blood pressure. According to him, with 6 breaths
per minute, as was the position during the resuscitation, he was unlikely to survive.
[33] With regar d to the recorded incident of the deceased jumping out of his
hospital bed, he testified that such behaviour was consistent with confusion, likely
arising from dementia or alcohol withdrawal, both of which were noted in the
deceased’s medical history from Cala Hospital. He told the court that the patient was
described as having a background of epilepsy, alcohol use, and possible dementia,
all of which are consistent with cognitive decline and personality changes.
[32] Regarding the management of the decea sed’s epilepsy, he testified that it
was not clinically appropriate to administer the patient’s chronic anti -epileptic
medication (Epanutin 300mg) orally due to the patient’s vomiting, bowel obstruction,
and abdominal distention at the time of admission to Free Hospital. He stated that
the only safe route of administering same would have been intravenously, but that
would have required prior serum level testing (blood test) to avoid the risk of toxicity
or sub-therapeutic dosing. Such test results, he continued, would take 24 to 48 hours
to return, and thus would not have been available prior to the deceased being taken
to emergency surgery.
[33] In his opinion, any person who has not had a virgin operation has a high
chance of bowel infection. He opined t hat, given the fact that the deceased had
undergone a laparotomy for a gunshot wound in 1996, the wound could have
perforated and resulted in adhesions, thus making the surgery complicated. He said
that complications under those circumstances are unpredic table and therefore could
not be prevented.
[34] On the question of resuscitation, he pointed out that the clinical records
clearly reflect a 10-minute period of resuscitation with a doctor present, during which
no seizure or epileptic activity was recorded. He testified that the success rate of
resuscitation in such clinical settings was very low, ranging between 20% and 40 %,
and even lower in public hospitals. According to him, the decision whether to
intubate and continue with resuscitation is at the discretion of the attending medical
practitioner. In his view, there was no basis for suggesting that the deceased’s life
could have been saved by different resuscitation methods.
[35] In his report, he also referred to the histology report of the sp ecimens
submitted at the time of the surgery, which stated that there was small bowel tissue,
of which the area of stricture showed transmural infarction and necrosis. Recording
that the serosal surface showed dense acute inflammatory exudate. This, accord ing
to him, was suggestive of peritonitis being present. He did underscore, however, that
this result would only have become available several days after the death of the
deceased.
[36] The post-mortem report compiled by the late Dr Zondi, a Chief Medical Officer
based at Forensic Pathology Services in Woodbrook, was admitted as part of the
defendant’s evidence in line with the parties’ pre -trial minute dated 29 March 2021.
Dr Zondi passed away in 2024 and was therefore not available to testify in court. A n
opposed application to have the said report admitted was later withdrawn by
opposed application to have the said report admitted was later withdrawn by
consent, when it became apparent that the parties had in fact agreed in the pre -trial
minute that same would be admitted as evidence in court without further proof, on
the basis that it was what it purported to be, without admission of the truth of the
contents thereof.
[37] Dr Zondi worked as a district surgeon for the Eastern Cape Department of
Health, trained in conducting post -mortem examinations to determine the cause and
manner of death through autopsy. Following the passing of the deceased on 19 June
2019, he conducted a post -mortem examination on the cause of the deceased’s
death on 23 June 2019, after which he compiled the post-mortem report.
[38] In the report, he made the following chief post -mortem findings: ‘History of
bowel obstruction due to bowel adhesions, ischaemic bowel, dilated small bowel,
perforated small bowel, pale kidneys, pale liver, acute peritoneal.’ He thereafter
recorded the cause of death as ‘Sepsis due to perforated small bowel due to small
bowel obstruction due to adhesion.’
The issues
[39] Broadly summarised, the issues for determination by this court are: whether
the defendant’s employees ( medical staff at Frere Hospital) breached their duty o f
care and were negligent in their execution of duties in providing treatment to the
deceased pre -, intra -, and post -operation; and whether such negligence was the
cause of the death of the deceased (causation).
The applicable legal principles
[40] It is trite law that the plaintiff bears the onus of proving his/ her case on a
balance of probabilities in civil matters. In the present matter, the plaintiff is required
to prove not only that the defendant’s employees provided substandard care to the
deceased and therefore acted negligently, but also that their conduct caused the
death of the deceased.
[41] The lay witnesses who testified on behalf of the plaintiff mainly served to give
a factual background to the circumstances leading to the admission of the deceased
in Frere Hospital, and what transpired after he had undergone the laparotomy. More
than that, they could not assist much in respect of what happened and/or how the
deceased died. Other than formulating suspicions based on what they were told,
they did not know how the deceased died or what caused his death. The only key
witness on whose testimony the plaintiff’s case rested, therefore, is their expert. Prof
Plani. On this score, it must be noted that, like Dr Promnitz, Prof Plani did not see
the deceased. His evidence and formulated opinions were based on the deceased’s
clinical records and documents, which were provided to him.
[42] The defendant, on the other hand, relied on the post -mortem report compiled
by Dr Zondi, as well as Dr Promnitz, t heir expert, who also relied on the clinical
records and documents provided to him.
[43] It is therefore not surprising that there were no joint expert minutes filed in
respect of this matter, given that the litigants engaged different experts who belong
to different fields of expertise. Invariably, this anomaly complicates the assessment
of the evidence of the respective experts in the matter. This gets compounded by the
fact that none of the medical officials who treated or attended to the deceased at
Frere Hospital were called by either of the parties to testify in these proceedings.
[44] The guiding principles under these circumstances were laid down by the
Supreme Court of Appeal (SCA) in Lourens v Oldwage, 1 where the court, with
reference to Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another ,2
stated the following:
‘What was required of the trial judge was to determine to what extent the opinions advanced
by the experts were founded on logic al reasoning and how the competing sets of evidence
by the experts were founded on logic al reasoning and how the competing sets of evidence
stood in relation to one another, viewed in light of probabilities.’
1 Lourens v Oldwage 2006 (2) SA 161 (SCA)(21 September 2005) at 175H.
2 Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA)
(13March 2001) (Linksfield Park Clinic).
[45] In Linksfield Park Clinic3 the SCA cautioned as follows:
‘It would be wrong to decide a case by simple preference where there are conflicting views
on either side capable of logical support. Only where the expert opinion cannot be logically
supported at all, will it fail to provide “the benchmark” by reference to which the defendant’s
conduct fails to be assessed.’
[46] This matter, therefore, turns on the expert evidence that was presented by
both parties. The guiding principle in this regard is that the function of an expert is
not to decide the case or advocate for a party, but to assist the court by providing
specialised knowledge and opinion on matters beyond the court’s ordinary
experience. This entails explaining technical or scientific matters and providing
reasoned opinions so that the court can evaluate them independently.
[47] In AM v MEC for Health,4 this function was described in the following terms by
Wallis JA:
‘The functions of an expert witness are threefold. First, where they have themselves
observed relevant facts, that evidence will be evidence of fact and admissible as such.
Second, they prov ide the court with abstract or general knowledge concerning their
discipline that is necessary to enable the court to understand the issues arising in the
litigation. This includes evidence of the current state of knowledge and generally accepted
practice in the field in question. Although such evidence can only be given by an expert
qualified in the relevant field, it remains, at the end of the day, essentially evidence of fact on
which the court will have to make factual findings. It is necessary to enabl e the court to
assess the validity of opinions that they express. Third, they give evidence concerning their
own inferences and opinions on the issues in the case and the grounds for drawing those
inferences and expressing those conclusions.’ (Footnotes omitted.)
[48] The Learned Judge of Appeal stated further: ‘The need for clarity as to the
[48] The Learned Judge of Appeal stated further: ‘The need for clarity as to the
facts on which an expert's opinion is based has been stressed in a number of cases.
3 At para 39.
4 AM and Another v MEC for Health, Western Cape 2021 (3) SA 337 (SCA)(31 July 2020) at para 17.
In Price Waterhouse Coopers v National Potato Co -operative Ltd, the following
passage from a Canadian judgment5 was cited with approval:
“Before any weight can be given to an expert's opinion, the facts upon which the opinion is
based must be found to exist. As long as there is some admissible evidence on which the
expert's testimony i s based, it cannot be ignored; but it follows that the more an expert
relies on facts not in evidence, the weight given to his opinion will diminish. An
opinion based on facts not in evidence has no value for the Court .” (Emphasis
intended)
[47 The learned Judge of appeal continued:
‘The opinions of expert witnesses involve the drawing of inferences from facts. The
inferences must be reasonably capable of being drawn from those facts. If they are tenuous
or far -fetched, they cannot form the foundation fo r the court to make any finding of fact.
Furthermore, in any process of reasoning, the drawing of inferences from the facts must be
based on admitted or proven facts and not matters of speculation. As Lord Wright said in his
speech in Caswell v Powell Duffryn Associated Collieries Ltd:
“Inference must be carefully distinguished from conjecture or speculation. There can
be no inference unless there are objective facts from which to infer the other facts
which it is sought to establish. . .. But if there are no positive proved facts from which
the inference can be made, the method of inference fails, and what is left is mere
speculation or conjecture.” 6 (Footnotes omitted)
[48] The Learned Judge continued further:
‘Where the facts are central to the opinions of the experts, courts should require
that those facts be led in evidence before the experts express their opinions .
Primarily, that is for the benefit of the court, which is thereby placed in a position
where the expert's opinion can be asses sed, and, if need be, queried or elucidated,
in the light of the factual material before it. It is also conducive to fairness in cross -
in the light of the factual material before it. It is also conducive to fairness in cross -
examination of the experts on behalf of the defendants. Where the case comes on
appeal, it facilitates a reading of the r ecord. Lastly, if this principle is borne in mind
5 Aiddrington (Estate of) c. Wightman, 2011 QCCS 1788 (CanLII) paras 326-328.
6 Ibid paras.20-21; HAL obo MML v MEC for Health , FS 2022 (3) SA 571 (SCA) ([2021] ZASCA 149)
paras.212-213.
and objections are upheld to leading the expert evidence without a proper factual
foundation being laid, that should avoid situations, such as that in Madikane, where
the case was conducted entirely on the basis of expert evidence without any factual
foundation at all for the opinions being expressed.’ 7 (Emphasis intended)
Discussion
[49] As stated earlier, the court in this matter is faced with not only opposing
expert opinions but also the fact that the evidence tendered is from experts who
come from different fields of expertise. In this regard, counsel for the defendant
criticised the evidence of Prof Plani on the basis that he failed to defer when
questioned on aspects that do not pertain to his field of expertise.
[50] This was premised on the fact that, according to Prof Plani, the deceased
could have died as a result of a traumatic brain injury caused by having fallen from
his bed, which fall he attributed to a possible epileptic fit, given that he was a known
epileptic. The criticism in this regard was that he is not an expert in the management
of epilepsy, a field in which a specialist physician, in this instance Dr Promnitz, was
more qualified.
[51] Of course, one cannot make light of t he fact that Prof Plani is a specialist
surgeon and therefore an expert in surgical procedures. However, the difficulty with
his proposition, as proffered in the above regard, is that no clinical evidence was
presented before the court to suggest that the deceased suffered an epileptic seizure
at any stage before, during, or after his surgery. In the absence of any factual
evidence in that regard, anything else becomes speculation.
[52] In short, Prof Plani’s hypothesis of sub-standard care on the part of the hospital
7 At para 215
staff at Free Hospital was premised on three main factors: (a) the failure to properly
manage the deceased's chronic condition of epilepsy, which presupposes that the
deceased fell as a result of an epileptic seizure, causing injuries that led to his
ultimate demise; (b) the failure to intubate the deceased at the critical moment,
including the failure to call for assistance; and (c) the failure to open the deceased’s
skull and thus offering limited post mortem findings by Dr Zondi.
[53] Concerning (a), his main cause of concern emanated from the fact that no
record of epilepsy was made in the deceased’s clinical notes in Frere Hospital; the
anaesthetist team used seizure -inducing drugs on the deceased; and the deceased
was not given any anti -seizure medication before his surgery. In my view, the
pertinence of these factors, however, diminishes when one takes into account that a
referral letter from Cala Hospital specifically mentioned that the deceased was a
known epileptic defaulter. Accordin g to Dr Promnitz, at times they receive transfers
of unresponsive patients, and therefore, the referral letter is very important and is
intended for the receiving and treating doctors so that they know what they are
dealing with. According to him, therefore, the treating doctor would have been aware
of the deceased’s epilepsy condition as the letter would have formed part of his file.
[54] Furthermore, Dr Promnitz, provided logical reasons why the deceased's
epileptic drug, Epinatum, could not be administ ered, both orally and intravenously,
prior to his surgery. Lastly, and most importantly in this regard, Prof Plani also
conceded under cross -examination that there was no clinical evidence to suggest
that the deceased had suffered an epileptic seizure, whi ch could have been the
cause of his fall. The proposition, therefore, that the deceased suffered an epileptic
seizure is not based on any factual evidence, other than mere speculation and
conjecture.
seizure is not based on any factual evidence, other than mere speculation and
conjecture.
[55] As to (b), the evidence of Dr Promnitz was that o n the clinical records, it is
recorded that a doctor was called within 5 minutes, and the deceased was
resuscitated for about 10 minutes. In his opinion, there is no evidence to suggest that
a different form of resuscitation would have resulted in a differ ent outcome, as the
important thing was to provide some sort of ventilation by creating an airway, which
was done in this case. According to Dr Promnitz, intubation was not always the only
way of going about that process.
[56] Prof Plani also criticised the fact that senior medical officers were not called to
assist during the resuscitation. This, in my view, cannot be said to have amounted to
sub-standard care, given that the necessary resuscitation was done, and the short
period within which the deceased passed on.
[57] As to (c), it is significant to note that the post -mortem examination has no
bearing on the treatment of the patient/ deceased, prior to his passing, because, as
the term itself indicates, it is done post -mortem. Therefore, the inadequa cy or
otherwise thereof cannot be said to have a bearing on the quality and standard of
care that was afforded to the patient while he was still alive.
[58] In this regard, Prof Plani indicated, correctly so in my view, that the pathologist
sees the organ s (that is what is recorded in the postmortem report and forms the
basis of the recorded findings in the current matter) without seeing or knowing the
ins and outs of what was involved. He has a non -speaking patient, and he can see
the consequences without knowing whether it could have been prevented or not.
[59] It is indeed regrettable that Dr Zondi’s evidence could not be tested through
cross-examination due to his earlier demise. However, from what I can understand of
Prof Plani’s criticisms of his re port, it is not that he denies the findings based on the
observations made (the organs observed) and the consequences thereof; his major
criticism is of the fact that more was not done. In fact, he acknowledged that a
pathologist does not have the clinical records when he examines a body. It follows
therefrom that he cannot be influenced by the findings contained in those records, as
his findings are based on his own observations.
[60] I also find it compelling in this regard that Dr Promnitz, in his earli er report
[60] I also find it compelling in this regard that Dr Promnitz, in his earli er report
before he had sight of the post -mortem report, hypothesized that the cause of the
death of the deceased was complications relating to the recent surgery resulting in
intra-abdominal sepsis. Notably, the post -mortem report, which was received much
later, confirmed the cause of death to be sepsis due to perforated small bowel due to
small bowel obstruction due to adhesion.
[61] I find the following remarks by the SCA in AM v MEC for Heath,8 with reference
to Mitchell v Dixon,9 to be apposite in this regard:
‘The relationship between a plaintiff and a defendant that possesses specialised skill and
knowledge may consequently require a standard of care from the defendant that is different
from what that standard would otherwise be. It is, however, not expected of such a
defendant to exercise the highest possible degree of professional skill. 10 What is expected is
the general level of skill and diligence which is possessed and would ordinarily be exercised
by a reasonable member of the branch of the profession to which he or she belongs under
similar circumstances.’
[62] Applied to the facts of the present matter, liability will only be imposed if it is
found that the death of the deceased was reasonably foreseeable an d that the
hospital staff had failed to provide the level of skill and competence that could
otherwise be expected to be provided by a reasonable health care worker in similar
circumstances.
[63] Put differently, the version of the plaintiff is that the deceased died from
possible head injuries sustained when he fell from a high hospital bed due to a
possible epileptic seizure while he was unattended, and a failure to resuscitate him
after his fall (premised on the fact that he was not intubated), all of which could have
been prevented had he been provided the requisite standard of skill and care
expected of the calibre of medical professionals in Frere Hospital.
8 AM and Another v MEC for Health, Western Cape 2021 (3) SA 337 (SCA).
9 Mitchell v Dixon 1914 AD 519 at 525.
10 Mitchell v Dixon 1914 AD 519 at 525
[64] This version, in my view, falls short for a number of reasons, some of which I
deal wit h later in the judgment. I have already dealt with the allegation of poor
management pre -operation, which mainly stems from the failure to record the
epilepsy condition of the deceased in his clinical records, and the consequences
allegedly flowing therefr om (giving the patient epilepsy inducing drugs for
anaesthetic purposes, the failure to administer anti -epilepsy drugs prior to the
surgery, and the alleged seizure suffered post-operation as a consequence thereof).
[65] There was no evidence tendered be fore the court to support the proposition
that the deceased was not monitored/ attended to after his surgery. In fact, the
evidence of Mr Nyarko, who visited the deceased after his surgery, was that when he
had concerns about the height of the deceased’s b ed when he was with him, he
voiced his concerns to the nurse who was in attendance there. This, in my view,
supports the defendant’s version that the defendant was attended to by a duty nurse
at all relevant times after his surgery.
[66] Counsel for the p laintiff made much of the fact that, besides not being
intubated, there was no intervention of a senior staff member during the resuscitation
of the deceased. In my view, this aspect was adequately dealt with in the evidence of
Dr Promnitz, who testified t hat whether or not the patient was intubated was not the
issue, as the important thing was the creation of an airway, ensuring that the patient
was ventilated, something which was done in the present matter. The evidence
before the court was that a doctor was called within 5 minutes, who began
resuscitating the patient for 10 minutes, at which point the patient passed away. The
question in my view then becomes, did the attending doctor display the highest
possible degree of professional skill? Maybe not, bu t there is nothing before me to
suggest that he lacked the general level of skill and diligence that is possessed and
suggest that he lacked the general level of skill and diligence that is possessed and
would ordinarily be exercised by a reasonable doctor under similar circumstances.11
[67] Delictual liability can only arise if it is established on a balance of probabilities
that the defendant’s employees were negligent. Once negligence has been
11 AM v MEC for Health, fn 8 supra.
established, the element of causation must still be proved. The test for negligence
was set out in Kruger v Coetzee12 where the following was stated:
‘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; and
(b) the defendant failed to take such steps.’13
[68] In establishing negligence in the current matter, the plaintiff essentially relied
on the evidence of Prof Plani. What became apparent in his testimony was that he
was highly concerned with the fact that there were limited post -mortem findings. He
stated that peritonitis takes a day or two to develop. According to him, it did not make
sense that the day following the surgery, there was a perforation, expressing a
concern with the fact that the post -mortem report does not state if the perforation
was on the suture line or somewhere else.
[69] He did concede under cross -examination, however, that it was not impossible
for peritonitis to develop immediately after surgery, stating that, depending on the
immune system of the patient, it could occur in under 24 hours. He expressed a
concern, though, that absent a full post -mortem report, one would not know if the
perforation was new or old.
[70] He also acknowledged that multiple adhesions are frequently found in post -
operative abdomen, especially after gunshot wounds, which often cause extensive
peritoneal contamination. He noted a concern that there was no mention of any other
areas of concern, or whether or not the rest of the bowel was mobilised.
12 Kruger v Coetzee 1966 (2) SA 428 (A).
13 Ibid at 430E-F.
[71] Although the two experts disagree on the cause of death of the deceased,
their evidence does bear certain similarities wit h respect to some of their opinions
and conclusions. In regard to the perforation, Dr Promnitz testified that it could have
occurred post -operatively or could have been present at the time of surgery. Like
Prof Plani, he told the court that he was unable t o establish exactly when the
perforation had occurred.
[72] In the opinion of Dr Promnitz, the original cause of the bowel obstruction was
most likely the gunshot wound to the abdomen, which the deceased had sustained
previously. The said wound would have caused intra-abdominal adhesions, which in
turn caused the obstruction. According to him, this presented a high chance of bowel
infection, as the gunshot wound would have perforated, resulting in adhesions,
making the surgery complicated and unpredictable.
[73] He further opined that where there is a previous surgery, surgeons are often
reluctant to enter, given the risk of perforation, which risks become much higher
post-operatively. According to him, the deceased probably had complications arising
from the gunshot wound. When asked as to why this was not picked up at the time of
the surgery, his response was that it was difficult for a surgeon to get into the other
parts of the abdomen, besides the area they are working on.
[74] From the above, what crystallises is that it was common cause between the
experts that adhesions post -operative abdomen, especially after a gunshot wound,
causing peritoneal contamination (peritonitis), was not an uncommon phenomenon.
Furthermore, both experts could not deny that there was bowel perforation, although
they both could not say whether this had occurred pre - or post-operatively, or where
it was located. Dr Promnitz proposed to give an explanation why it was not possible
or easy to establish the location of the perforation during the surgery, which
proposition I have no reason not to accept.
[75] With the above in place, I find that a compelling case has been made for the
defendant, that the cause of death of the deceased was sepsis due to pe rforated
small bowel due to small bowel obstruction due to adhesion, and that such could not
have been prevented under the circumstances. Notably, a similar proposition was
made by Dr Promnitz in this regard even before he had sight of the post -mortem
report. In the opinion of Dr Promnitz, the fact that the intracranial contents were not
examined during the post -mortem examination was unlikely to have changed Dr
Zondi’s report to any great extent because, on the documentation that was provided,
there was no history of any head trauma.
[76] Having considered all of the above factors, I am unable to find that the plaintiff
has established negligence on the part of the medical staff at Frere Hospital on a
balance of probabilities. Absent such negligence, it f ollows, therefore, that there can
be no nexus between the death of the deceased and the conduct of the medical staff
at Free Hospital.
[77] In the result, the plaintiff’s claim cannot succeed.
Costs
[78] The general rule in respect of costs is that they follow the result and they are
at the discretion of the court. I can find no reason why the general rule should not
apply in the present matter.
Order
[79] Consequently, the following order shall issue:
The plaintiff’s claim is dismissed with costs.
______________________
V P NONCEMBU
JUDGE OF THE HIGH COURT
APPEARANCES
Counsel for the Plaintiff : Z B Ncalo with S Zimema
Instructed by: K Dlakavu Ncoliwe Attorneys
C/O Luvuyo Solvern Attorneys
King William’s Town
Counsel for the Defendant: S Phoshera
Instructed by: Office of the State Attorney
East London
Date of hearing: 30 - 31 O ctober 2023, 20, 21,
22, 24 January 2025, and 26
September 2025
Date judgment delivered: 19 February 2026