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[2026] ZAGPJHC 392
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Member of Executive Council for Health for Province Gauteng v Pohlman obo Luyt (33632/2014) [2026] ZAGPJHC 392 (15 April 2026)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
Number: 33632/2014
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED: YES/NO
15/04/26
In
the matter between:
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
HEALTH FOR THE PROVINCE GAUTENG
Applicant
and
GERBRECHT
ELIZABETH POHLMAN
obo
MORNE FRANCOIS LUYT
Respondent
This
Judgment was handed down electronically by circulation to the
parties/their legal representatives by email and by uploading
to the
electronic file on Case Lines. The date for hand-down is deemed to be
15 April 2026
Summary:
Interlocutory application
-
leave to file further expert addendum
report- Whether the application raises new material. Ruling on the
issue of the plaintiff’s
evidence conclusively dealt with by
the court- no need to revisit.
In
a protracted medical negligence action, the defendant is seeking
leave to file a further addendum expert report following the
filing
of a further addendum report by the plaintiff’s substitute
expert radiologist. The defendant contended that the application
was
necessitated by the substitute expert's comments in his addendum
regarding the possibility of hypoglycaemic injury appearing
on the
MRI and alleged hypoxia prior to the collapse of the minor child.
Held:
Rule 36(9) requires full and timeous disclosure of expert opinions
and does not allow for incremental reconstruction of a
party’s
case by successive addenda.
Held:
the issue raised in the defendant’s application is not new,
having previously been addressed by other experts.
Held:
the comments by the substitute expert radiologist were general and
did not introduce new factual or medical conclusions warranting
a
responsive addendum.
Held:
that it was impermissible to seek to revisit the process regarding
the transfer of the minor child from the neonatal intensive
care unit
to another ward, as this matter had already been conclusively
determined by the court.
Held:
granting permission to file the further addendum would breach the
principles of procedural fairness and would delay the finality
of the
proceedings.
JUDGMENT
MOLAHLEHI,
J
Introduction
[1].
The applicant (the defendant in
the main action) in this interlocutory application seeks leave to
serve and file an addendum report
by its paediatric expert, Professor
K Bolton, dated 12 September 2025. The application, which is opposed
by the respondent (the
plaintiff in the main action), concerns a
claim of medical negligence. For clarity, the parties in this
application are referred
to as the plaintiff and the defendant.
[2].
At the start of the hearing, the
plaintiff withdrew the challenge to the authenticity of the founding
affidavit on the basis that
the deponent, Mr Rametse, the plaintiff’s
attorney, lacked the necessary knowledge to provide the court with
the facts under
oath. The opposition to the condonation application
for the late filing of the replying affidavit was also withdrawn. The
court,
considering the interests of justice, granted condonation for
the late filing of the replying affidavit.
Background
facts
[3].
This matter, which has been ongoing since 18 April 2018
through a lengthy case management process, including several
interlocutory
applications, concerns the action initiated by the
plaintiff against the defendant in September 2014. The plaintiff’s
claim
is based on damages arising from the defendant’s alleged
negligence during the plaintiff’s labour and birth of her son,
including his stay in hospital in November 2010.
[4].
The case of the plaintiff is that
her son, born on 30 November 2010 at the defendant’s Tambo
Memorial Hospital, suffered a
severe brain injury while in the care
of the defendant. The complaint regarding the failure to provide
proper care for the child
includes the period when he was
hospitalised for treatment. The cerebral palsy the child developed
has left him with a permanent
disability to the extent that he will
never be able to look after himself.
[5].
The plaintiff’s cause of
action is generally based on the complaint that Tambo Memorial
Hospital, having accepted and admitted
the plaintiff and her son as
patients, failed to provide them with the necessary medical care for
their health and well-being.
This includes the allegation that the
hospital did not supply adequate care before and after the birth of
the minor child. The
specifics of the cause of action as detailed by
the plaintiff are outlined in her particulars of claim.
[6].
The trial commenced with the
testimony of Ms Pohlman, who described her observations when the
minor child was transferred from the
neonatal intensive care unit
(NICU) on 6 December 2010 to ward 4 of the hospital. The core of her
testimony is that the child did
not receive oxygen in ward 4 before
he collapsed.
[7].
The second witness to give
evidence after the plaintiff was Professor Davies. During his
cross-examination, on 7 January 2025, the
defendant’s counsel
attempted to put forward a version to him that had never been
presented to the plaintiff during her cross-examination.
The version
that the defendant sought to introduce through cross-examination was
that the child did receive oxygen in ward 4 before
collapsing. The
plaintiff’s counsel objected, prompting the defendant to submit
an interlocutory application for the plaintiff
to be recalled for
further cross-examination. The court dismissed the application.
The
application to file the addendum
[8].
This
application is based on a request by the defendant to serve and file
Dr Bolton’s expert report. He prepared the report
and the
addendum after the plaintiff appointed Dr Alheit as her radiology
expert witness, following Prof Lortz’s withdrawal.
Prof Lortz
withdrew because he closed his practice after sustaining injuries in
a fall. In other words, the plaintiff appointed
Dr Alheit as a
substitute for Prof Lortz.
[9].
The plaintiff
served and filed Dr. Alheit’s report on 10 September 2025 and
the addendum on 12 September 2025. The addendum
addressed the Bitmap
(BMP) format MRI images. Subsequently, on 18 September 2025, a
radiology joint minute was prepared by Dr Weinstein
and Dr Alheit.
[10].
In response, Prof Bolton prepared an
addendum report addressing the issue of hypoxia after reviewing the
MRI scan performed on the
minor child. The MRI scan, dated 14 March
2018, was conducted when the minor child was 5 years and 10 months
old. The defendant's
case in this regard is that it qualifies for
leave to file the addendum report by Dr Bolton, based on the comment
made by Dr Alheit
in his addendum report, wherein he observed:
“
The
dominant MRI features are consistent with Periventricular
leukomalacia of prematurity (PVL) now visualised in the chronic stage
of evolution on the MR scan performed at the age of 5 years and
months . . . .
Another
aspect to consider is the possibility of episodes of hypoglycaemia.
The imaging features of neonatal hypoglycaemia are injury
of the
pulvinars and more prominent injury of the occipital lobes, as
described above. This aspect, however, must be assessed in
light of
the clinical records.”
[11].
Dr Alheit further observes:
“
Possible
hypoxia occurring during the period that the baby was in an Incubator
in Ward 4 at the time of his collapse. Ms Pohlman,
in her evidence
given in Court, is of the opinion that Morne was being nursed without
supplemental oxygen when he turned blue and
collapsed in Ward 4 on
the afternoon of 6th December, 2010. This is possible but improbable.
She bases her opinion on her recollection
that he had no oxygen
cylinder visible next to the incubator and that he had no pipes
positioned in his nose. She recalls that
he was being nursed in a
closed incubator and that he had an intravenous infusion (a "drip")
running However, to speculate,
whether or not, supplemental oxygen
was being administered requires a brief explanation of the modes used
for supplementing oxygen
to newborn babies. Too much oxygen is as
dangerous for a premature baby as is too little oxygen. The decision
of whether to supplement
oxygen and the percentage required is made
utilizing clinical and oxygen is utilizing clinical and oxygen
saturation monitoring.
Depending on the required concentration of
oxygen needed, the following methods of supplementation are
utilised.”
[12].
In his motivation for the acceptance of
his “Further Addendum to Medical
Opinion”, Prof Bolton states the following:
“
This
Further Addendum to my original report has become necessary to
respond to two issues that have recently come to my notice,
namely:
·
The suggestion by the expert radiologist
for the plaintiff (Dr Alheit) that there are features suggestive of
hypoglycaemic damage
on MRI.
·
The suggestion by the plaintiff, Ms
Pohlman, in her evidence, that Morné, was nursed without
supplementary oxygen in Ward
4 at Tambo Memorial Hospital.”
[13].
The plaintiff objects to the submission
of Prof Bolton's addendum report on the following grounds:
“
3.1.31
Professor Bolton has been a designated expert in this case for the
Defendant for many years.
3.1.32
It is inconceivable to think that the Defendant would not have
discussed the Plaintiff's evidence with its experts during
her
testimony and/or before her cross-examination.
3.1.33
As is dealt with in more detail below, Professor Davies (on behalf of
the Plaintiff) raised the issue of hypoglycaemia and
Professor Cooper
(on behalf of the Defendant) dealt therewith. Both these doctors
prepared reports on, inter alia, this issue,
and also a joint minute
on it. During this debate, Professor Bolton was silent. This silence,
once again, is deafening.
3.1.34
Whether "features suggestive of hypoglycaemic damage on MRI"
are visible on MRI, is for the radiologists to say.
3.1.35
Professors Davies and Cooper had regard to the clinical records when
they prepared their respective reports and joint minute.”
The
plaintiff’s representatives further argue in the heads of
argument that the addendum, which the defendant seeks to introduce,
does not constitute a genuine expert opinion within the narrow scope
of “new issue,” but that the report attempts to
construct
a factual narrative regarding the transport incubator, oxygen supply,
and the transfer process.”
The legal principles
[14].
Expert notices and summaries are governed
by Rule 36(9) of the Uniform Rules of the Court, which states that a
party may not call
an expert to testify without timely delivery of a
notice and a summary. It also specifies that if an expert materially
changes
an opinion, that change must be communicated immediately to
the other party.
[15].
Regarding the matter of substituting an
already appointed expert witness and the issue of introducing a
different expert witness,
Erasmus- Superior Court Practice states:
“
Once an expert has
been identified, that witness becomes part of the procedural matrix
of the trial. A party who wishes to introduce
a different expert must
do so only with the consent of the opposing party or leave of the
court, failing which the evidence is
inadmissible.”
[16].
In other words, a substitute expert must be properly
appointed, and his or her addendum must be correctly filed with the
court.
If the substitute expert introduces new material in the
addendum, procedural fairness requires that the opposing party be
given
an opportunity to respond to any new points raised. The court
has discretion under rule 36(9) and its inherent jurisdiction to
ensure fairness by granting permission for the other party to respond
to the substitute expert’s addendum when it presents
genuine
new material. Typically, the court will grant permission for the
responsive addendum unless there are strong reasons to
believe that
allowing it would be unfair or cause significant disruption.
[17].
The fundamental principle under rule 36(9) of the Rules is
that the parties must disclose expert medical opinions fully,
clearly,
and promptly. It is not intended to serve as a means for
creating delaying tactics or stratagems aimed at frustrating the
finalisation
of proceedings through successive addenda or undermining
rulings that may have been made regarding the matter.
[18].
In the present matter, there is no dispute as to whether the
substitute expert, Dr Alheit, and his addendum report are properly
before the court. The issue to consider is whether Dr Alheit’s
report raised new material justifying granting leave for the
defendant to file an addendum in response to Dr Alheit's addendum.
Discussion
[19].
It is well established that expert evidence should be limited
to matters requiring specialised skill and must be disclosed promptly
to clearly define the issues for adjudication and prevent the
incremental rebuilding of a party’s case.
[20].
In the present case, the defendant’s reliance on
hypoglycaemia does not raise a new issue arising after the delivery
of the
original expert reports, particularly that of Prof Bolton; it
was already raised by the neonatologists from both parties, Prof
Davies and Prof Cooper. This issue should have been fully discussed
at that stage or shortly thereafter, rather than after such
a
prolonged period. The original addendum by Prof Bolton was made on 3
January 2017, followed by another on 3 May 2022.
[21].
The defendant’s argument that Prof Bolton’s
addendum is justified by a comment in Dr Alheit’s expert
addendum
is unfounded. Dr Alheit simply stated that hypoglycaemia was
an issue for clinicians to consider, which does not amount to a
definitive
expert opinion or introduce new factual or medical
conclusions. Such a general remark cannot properly be regarded as
genuine new
material warranting a responsive addendum.
[22].
It is also important to note that the clinical records were
available for some time, particularly when Prof Bolton prepared his
original report. The same applies to the parties’
neonatologists, Prof Cooper and Pro Davies, who have already
considered
and debated the minor child’s glucose levels and
monitoring, including the presence or absence of hypoglycaemic
episodes.
[23].
Furthermore, the matter of transferring the minor child from
Ward 4 has already been definitively decided by this Court, which
dismissed
the application to recall the plaintiff for further
cross-examination. To the extent that the defendant’s addendum
seeks
to revisit or indirectly challenge that ruling, it contravenes
the principles of finality and proper litigation grounded in the
rules.
[24].
It is clear from a proper reading of the defendant’s
papers that the leave to file the addendum is sought simply because
Dr
Alheit mentioned the issue of hypoglycaemia in his addendum. This
issue had received attention long before he was appointed as an
expert witness in this case.
[25].
Allowing the defendant to submit the addendum at this stage
and under these circumstances would be procedurally unfair and would
go against the rules and purpose of admitting an expert’s
supplementary reports, as well as fair trial principles in general.
It would clearly undermine this court's decision regarding the status
of the plaintiff's evidence.
[26].
In the circumstances, I find that the defendant (applicant)
has failed to establish a proper case for the relief sought, and
therefore,
the application must fail.
Costs
[27].
The application having failed, the only
issue for determination is the costs, which must be decided in
accordance with the provisions
of rule 67A of the Rules. This rule
deals with awards of costs as between party and party costs. It
provides the court with the
discretion to determine the maximum fees
that legal representatives can recover under such awards. In
determining the party and
party costs order under Rule 67A (3), the
court shall “indicate the scale in terms of Rule 69, under
which costs have been
granted. The scales are “A”, “B”,
and “C”.
[28].
In
Mashavha
v Enaex Africa (Pty) Ltd
[1]
,
the court held that:
“
The
court sets a maximum recoverable rate for that work having regard to
the importance, value and complexity of the matter (Rule
67A (3)
(b)). The court may also take into account any failure to observe the
provisions of rules 30A, 37, 37A and 41A; any over-long
written
argument, oral argument, examination or cross-examination of
witnesses; or any other misconduct that might justify
a
personal costs order (a costs order made against a person other than
one of the litigants – usually a legal representative,
or
someone else acting in an official capacity, who has seriously
misconducted themselves). It may also be relevant that
the case
fell within the jurisdiction of the Magistrate’s Court, and
might have been better determined there. Rule 67A (2)
identifies
these considerations, and emphasises their relevance to the making of
a costs order under the rule.”
[29].
As shown above, the defendant persisted
with an application to admit an addendum expert report without proper
justification, and
on matters that were neither new nor first raised
by the plaintiff’s substitute expert witness. The attempt to
introduce
the addendum is unfounded, as it was made solely because Dr
Alheit raised the issue of hypoglycaemia in his addendum. There is
also no merit in the claim that the issue came to Prof Bolton's
attention for the first time after the plaintiff’s substitute
expert witness submitted the addendum. The issue had already been
discussed by the parties’ neonatal experts.
[30].
The other matter concerning the
transfer of the minor child from the NICU to ward 4 was definitively
addressed by this court in
the interlocutory, in which the defendant
sought to recall the plaintiff's first witness for further
cross-examination. Essentially,
the application was unnecessary,
delayed the finalisation of the case, and was procedurally unfair.
Furthermore, the application
resulted in additional expenses for the
plaintiff in an already protracted litigation involving serious and
complex issues of medical
negligence, which demanded a comprehensive
response.
[31].
In light of this analysis, I am
satisfied that employing two counsel was reasonable, justified, and
the costs should be based on
the highest party and party scale.
Order
[32].
In the premises, the following order is
made:
1.
The late filing of the replying
affidavit is condoned.
2.
The defendant’s point in limine
regarding the alleged lack of knowledge on the part of the deponent
to the founding affidavit
is dismissed.
3.
The application for leave to admit the
defendant’s addendum expert report is refused with costs,
including costs of two counsel,
on the party-and-party Scale C.
E
MOLAHLEHI
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
JOHANNESBURG
Counsel
for the Plaintiff:
Instructed
by:
Adv
MJ Fourie with Adv JA du Plessis
Shane
White Attorneys
Counsel
for the Defendant:
Instructed
by:
Adv
URD Mansingh
State
Attorney Johannesburg
Heard:
Delivered:
20
January 2026
15
April 2026
[1]
2025 (1) SA 466
(GJ) at para 6