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REPUBLIC OF SOUTH AFRICA
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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST HIGH COURT MAHIKENG
YES / NO
YES/ NO
YES/ NO
YES/ NO
CASE NO: 1792/2024
In the matter between:
KERENG ANDREW MORAKILE
KATLEGO MACDONALD CHOWF.
And
LIFE PEGLERAE HOSPITAL
DR. SAM AMOAKWA-ADU
DRIKENNACLETUSOKEKE
DR SHUPING MOKGOSI
Coram: TSAUTSE AJ
Date considered: 6 March 2026
1st PLAINTIFF
211d PLAINTIFF
1st DEFENDANT
2nd DEFENDANT
3rd DEFENDANT
4th DEFENDANT
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives via email. The date and time for the hand-down of the judgment is deemed to
be 10h00 on 14 May 2026.
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JUDGEMENT
TSAUTSEAJ
Introduction
[I] This is an exce ption application by the fou11h defendant to the plaintiffs' particulars of
claim on the bas is that they fail to disclose a cause of action, in particular for want of a pleaded
causa l nexus betwee n the co nduct of the fourth defendant and the death of the deceased. For
convenience, the parties are refe rred to as cited in the main action.
[2] The plaintiffs oppose the excep tion and contend that, on a sensible reading of the
pleadings and annexures as a whole, they have sufficie ntly pleaded both the ex istence and
sco pe of the fou rth defe ndant's lega l duty, as we ll as a factu al and legal nexus betwee n his
conduct and the harm suffere d.
Applicable principles on except ion
[3] The exce ption is taken on the basis that the particu lars of claim fail to disclose a cause
of act ion, as contemplated in Rule 23( 1) of the Uniform Rules of Court. ln adjud icating such
an exce ption, the court must acce pt as true all properly pleaded factual a llegatio ns. The enqui ry
is whether, on every reaso nable interpr etation of those facts, no cause of action is disclosed. If
any reaso nable readin g of the pleadin g sustains a cause of action, the exce ption cannot succeed.
[4] The approac h to exce ptions has been art iculated in num erous dec isions. ln Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standa rds Author ity SA 2006 (1) SA 46 1
(SCA) , the Supreme Court of Appea l emphasised that excep tions mu st be approac hed sensib ly,
as a mechanism to weed out cases lacking legal merit. and that an over-technical approac h
undermines their utility. P leadings, toge ther wit h any annexures, must be read as a whole, and
the co urt is not engaged in a game of puzz les by iso lating indiv idual allega tions fro m their
broade r context.
[5] The determination of whether a pleadin g is exc ipiable req uires an exa mination of
whether it disc loses a cause of action. The concept was au thoritat ively defined in McKe nzie v
Farmers ' Co-operat ive Meat Industries Ltd 1922 AD 16 at 23 as:
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" ... every fact which it would be necessary for the plaintiff to prove, if traversed, in order to
support his right to judgment of the Court. It does not comprise every piece of evidence which
is necessary to prove each fact, but every fact which is necessary to be proved. "
[6] The plaintiffs are accor dingly required to plead the material facts (jacta probanda)
which, if estab lished, sustain the ir claim; they are not requi red, at exce ption stage, to plead the
evidentia ry deta il (jacta probantia). This principle was reaffi rmed in Strydom NO and Others
v Van Zyl (345 /2022) [2023 ] ZANWHC 55, where Pete rsen J rejecte d a tec hnical object ion to
particulars of claim, holding that where a claim is sufficie ntly clear, any defic iencies may be
cured by furt her particulars for trial. Th is high I ights that exce ptions are not di recte d at inelega nt
drafting, but at the abse nce of a lega lly cognisab le cause of actio n.
The background of this matter
Backgrou nd
[7] On or about 16 April 202 1, the decease d, the daughter of the first plaintiff, und erwent
a caesa rean section perfor med by the seco nd defenda nt at the first defe ndant's hosp ital,
pursuant to an agreeme nt in terms of which the procedure would be conducted w ith the
requisite skill, care and diligence expected of a spec ialist obstetrician and gynaeco logist.
[8] Fo llowing the proce dure, the decease d deve loped complications arising from a small
bowe l injury incurred dur ing the c-sec tion, necessita ting a return to theatre where a laparo tomy
was performed by the third defe ndant.
[9] Thereafter, the deceased was ad mitted to the Intens ive Care Unit (ICU), where she was
placed under the care and superv ision of the fo urth defenda nt. The plaintiffs ' claim agai nst the
fourth defendant arises fro m the alleged negligent post-o perative manage ment of the deceased
during her admission in the ICU fo llowing the seco nd surgical interven tion.
during her admission in the ICU fo llowing the seco nd surgical interven tion.
[ IO] It is alleged that the fourth defe ndant was the doctor on duty in the Intensive Care Unit
(ICU) , that he issued instructions regardi ng the deceased 's treatme nt, including inotrop ic
support, ventilatory manage ment and blood invest igations, and that he rema ined the treat ing
ICU physician until the time of her demise.
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[11] Tt is further alleged that, durin g periods of clinica l deterioration , nursing staff made
urgent attempts to contact the fourth defe ndant , which were unsuccessfu l as calls did not go
throu gh. The fourth defe ndant is alleged to have continued manag ing the deceased 's care
remotel y, without conduct ing a beds ide assessme nt or physical exam ination.
Duty of Care and Doctor-Patient Relationship
[ 12] The plaintiffs ave r that, on these al legat ions, a doctor - patient relationship arose by
opera tion of law and, alternat ive ly, by virtue of the contract ual arra ngement betwee n the first
and fourt h defendants , in terms of which the fourth defendant und ertook to provide ICU cover
for pati ents such as the deceased.
[ 13] In Moho M v Dr Shaik & Others 202 1 ZAGPPHC 484 , the court held that a doctor
patient relationship arises where a medical practition er accep ts and beco mes invol ved in the
treatment of a patient, thereby giving rise, by operat ion of law, to a duty of care.
[1 4] Once such a relationship is establi shed, the practition er owes a duty to exercise the
deg ree of skill, care and diligence reasonably expecte d of a specia list in that pos ition. This
includes reasonab le avai lab ility, persona l assessment of a critically ill patie nt, and proper
handover where the practition er is unava ilab le. The complaint aga inst the fourt h defendant is
not that he ought to have perform ed surgery, but that , as the ICU physic ian, he failed to monitor,
review and appropriate ly esca late care, and failed to ensure con tinui ty of care throu gh adequate
handover.
Causation -Applicable Legal Principles
[1 5] The fourt h defe ndant argues that the plainti ffs have failed to plead a causal
nexus betwee n his co nduct and the deceased 's deat h. To determine this issue, it must be noted
that causat ion in South African law entai ls a two-stage inquiry, compri sing factua l and lega l
causat ion. As co nfirm ed by the Co nstitut iona l Court in Lee v Minister of Correctional
Serv ices 2013 (2) SA 144 (CC), factual causation is genera lly assessed through the "but
for" (cond itio sine qua non) test. This test is appl ied w ith approp riate flexibi lity, guided by
common sense and the particular facts of eac h case. Critica lly, the Court cautio ned against a
rigid or mechanica l appl ication of the test, particula rly in matters invo lving systemic
omiss ions or comp lex patterns ofneg ligence, where inflex ible deduct ive logic might otherw ise
resu lt in an injustice.
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[ 16] The seco nd part of the enqui ry, which is Lega l causation, in turn, determin es whether a
sufficiently close or direct link ex ists betwee n the conduct and the harm to justify the
impositio n of liab ility. This inquiry is gove rned by a flexible criterion informed by reaso nable
foreseeab ility, remo teness, and broader po licy consideratio ns. As em phasised in Lee v Minister
of Correctional Services (supra) , causation is ultimate ly an eva luative matter for the trial co urt
to deter mine base d on the totality of the ev idence. Conseque ntly, an overly rigid or mec han ical
application of the "but-for" test is inappropr iate , partic ularly in complex cases involving
medica l or systemic omissions.
[ I 7] The fourth defen dant argues that the autopsy attributes the deceased 's deat h to septic
compli catio ns fo llowing a sma ll-bowe l injury during the caesa rean sec tion and that, because
he took no part in the surgery or subsequent laparo tomy, his conduct can never satisfy factua l
or lega l causation. This, however, misconceives the plaintiffs' pleade d case.
The Plaintiffs' Case on Causation
[ 18] The plaintiffs do not claim that the four th defe ndant directly caused injury to the bowe l.
Howeve r, they asse rt that by the time the deceased was placed under his care in the ICU, she
was already in sep tic shock. They arg ue that her cond ition worse ned and that his neg ligent
fa ilures in manag ing her critica l state, such as his unava ilab ility, his fai lure to respond urgently
when called, and his lack of proper coverage and handover , significa ntly co ntributed to the
progressio n of the sepsis and ulti mate ly led to her death.
[ 19] On those facts , it is at least reaso nab ly arguable that, but for the fourth defendant's
negligent omiss ions in the ICU, the decease d would probab ly have survive d, or at least enjoyed
a mater ially better chance of survival. In Lee v Minister of Correctional Services (supra) the
majority accepted that a plaintiff can succeed on causation where the defen dant's om ission
materially increased the risk of harm in circu mstances where, but for the negligent systemic or
superv isory failure, the harm wou ld proba bly not have occ urred.
[20] The plai ntiffs' allegat ions that the pat ient's blood pressu re was "alarm ingly
dec reas ing", that urgent ca lls to the four th defe ndant went unanswere d, that orders were given
by other doc tors via WhatsA pp w ithout prope r examination, and that the patient died shortly
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thereafter, are all material fac ts from which the trial court co uld find factual and legal causatio n
after hearin g expert ev idence.
[2 1] The fourth defe ndant's contention that " logic dictates" the decease d wou ld have died
in any event is, in truth , a factual defence which goes to the merits, not to the sufficiency of the
pleadin gs. Whether his prese nce, timely review and appropriate interve ntion would have
altered the course of the septic shock is a matter that can only be reso lved at trial on the bas is
of medica l and expert ev idence, includin g the ICU reco rds and the autopsy repo rt, which the
plaintiffs have express ly incorporated. At the exce ption stage the question is not whether
causation w ill be proved, but whether the pleaded fac ts are capa ble of sustaining such an
inference and I plainly find that they are.
Application to the pleadings and order
[22] Read ho listically and toge ther wit h the annexures, the particulars of claim allege that:
22. 1 the deceased was in a critical, post-o perative septic state in the ICU;
22 .2 the fourth defendant was the ICU phys ician on call, responsible for her post-ope rative
care;
22.3 he accepte d this responsibility and issued treatment instructions for her manage ment;
22.4 he was then unavai lab le and did not atte nd when urgently ca lled durin g a period of
deterioration, and failed to ensure an adequate ly briefed cove r docto r;
22.5 other doctors, not in possess ion of full inform ation, gave teleph onic instructions;
22.6 the decease d 's conditi on con tinued to deteriorate and she died a few hours after these
eve nts;
22.7 but for the fourth defe ndant's neg ligent unava ilability, failur e to attend and fa ilure to
hand over prop erly, the decease d would probably not have died, or at leas t her prospects of
surv ival would have bee n signifi cantly better.
[22] These allegations set out all the mate rial facts which the plaintiffs must ultimately prove
to sustain a deli ctual claim in neg lige nce aga inst the fourth defendant, namely:
• condu ct (in the form of a neg ligent omission),
• wro ngfuln ess (arising from the breach of a lega l duty flowing from the docto r- patient
relationship and his role as ICU phys ician),
• causation (in that such omi ssio n probably contribu ted to the death, alternative ly resulted in a
loss of a chance of surv iva l), and
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• damages (including loss of support and related heads).
[23] They accordingly go beyond bare legal conclusions or bald assertions and are sufficiently
particularised to inform the fourth defendant of the case he is required to meet. ln Burger NO
v Ne! (991 /2024) [2025] ZA NWHC 205, the court reaffirmed that an excep tion must be
determined on the pleadings as they stand, and not on extraneous facts or evidentiary material.
It follows that the fourth defendant 's reliance on the autopsy findings , and his attempt to draw
inferences therefrom to negate causation, are matters for trial and cannot defeat a properly
pleaded cause of action at exception stage.
[24] The plaintiff s have pleaded facts which, if proved , establish a legally cognisab le claim of
negligent post-operative care against the fourth defendant. Those facts include the existence of
a doct or-patient relationship , the scope of the attend ant duty, and alleged omissions in the
management of the deceased durin g her admiss ion in the ICU. The determi nation of whether
such omiss ions caused or cont ributed to the decea sed's death, and the precise basis upon which
any duty arises, are matters for trial and cannot be resolved at exception stage.
[25] In these circumstances, it cannot be said that, on every reasonable interpretation of the
particular s of claim, no cause of action is disclosed against the fourth defendant. The pleaded
facts are capable of sustain ing the conc lusion that the fourth defendant 's conduct contributed
to the harm suffered. The excipient has therefore failed to discharge the onus resting upon him.
I therefore of the view that the exception accordin gly falls to be dismissed.
Order
l. The fourth defendant's exceptio n is dismissed.
2. The fourth defenda nt is directed to deliver his plea within fifteen ( 15) days.
3. Costs of the except ion shall be costs in the cause.
T. TSAUTSE
ACTING JUDGE
NORTH WEST DIVISION, MAHIKENG
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Appearances:
For the Plaintiff: Adv V. Vilakazi
For the 4th Defendant: Adv L. Mtukushe
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