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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 2361/2018
In the matter between:
B[...] Z[...] Y[...] Plaintiff
and
DR. S. MDUNA Defendant
JUDGMENT
MHAMBI AJ
Introduction
[1] In this action, the plaintiff claims damages against the defendant relating
to the alleged medical negligence.
[2] This claim emanates from the plaintiff’s presentation at the practice of the
defendant for the choice termination of pregnancy, commonly known as
“abortion”. The defendant is the medical practitioner with an independent
practice at Mthatha.
[3] The plaintiff has alleged in the particulars of claim that upon her
presentation at the medical practice of the defendant on 28 May 2015, she
entered into an oral agreement with the defendant relating to the choice
termination of pregnancy. The plaintiff’s medical negligence claim is based on
the breach of the aforesaid oral agreement by the defendant. The plaintiff
alleged several respects for the alleged breach.
[4] The plaintiff further alleged in her particulars of claim that the
defendant’s conduct complained of, is the result of her being found permanently
sterile by the surgery.
[5] The defendant denies negligence and the subsequent liability. The
defendant pleaded that the plaintiff was on 28 May 2015, attended by Dr.
Mfolozi, who at the time was a locum doctor, and not by himself.
[6] It is Dr. Mfolozi who examined the plaintiff; to that extent, he prepared
an examination plan for the plaintiff. The defendant further denied that the
plaintiff’s damages, as claimed, and alleged that those were the result of the
conduct of Dr. Mfolozi.
[7] It is common cause that:-
(a) The plaintiff was attended at the medical Centre of the defendant
on the date concerned.
(b) The plaintiff presented herself for choice termination of pregnancy.
(c) The plaintiff was attended by Dr. Mfolozi
(d) The defendant did not attend and examined the plaintiff, nor did
the defendant prescribe medication for the plaintiff.
[8] It is trite that; for the plaintiff to succeed with its claim against the
defendant in a case where it is alleged that the defendant was negligent in doing
something or failed to do something, it must prove that there was a duty of care
owed to it by the defendant, which the defendant has breached and that the
breach has caused harm to occur, which resulted in damages. Thus, the onus
rests on the plaintiff to prove all the elements of the delict in order for its claim
to prevail.
[9] Put differently, the elements a plaintiff must establish, on a balance of
probabilities, to hold a defendant liable for delictual damages are trite. Our law
recognizes five elements, and if a plaintiff fails to establish one of these, the
claim cannot succeed. The five elements a plaintiff, seeking to succeed with a
claim in delicts, must establish are: (1) the conduct (either act or omission); (2)
wrongfulness; (3) fault (negligence); (4) causation; and (5) that harm was
suffered. Without the convergence of all these elements, delictual liability will
not ensue.
[10] In Kruger v Coetzee,1 the Supreme Court of Appeal stated the following:
“(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.”
[11] In Le Roux and Others v Dey ,2 the Constitutional Court stated the
following:
“In the more recent past our courts have come to recognize, however, that in the
content of the law of delict: (a) the criterion of wrongfulness ultimately depends on a
judicial determination of whether – assuming all the other elements of delictual
liability to be present –it would be reasonable to impose liability on a defendant for
the damages flowing from specific conduct; and (b) that the judicial determination of
that reasonableness would in turn depend on considerations of public and legal policy
in accordance with constitutional norms. Incidentally, to avoid confusion it should be
borne in mind that, what is meant by reasonableness in the context of wrongfulness
has nothing to do with the reasonableness of the defendant’s conduct, but it concerns
1 1966 (2) SA (A) 430
2 [2011] (3) ZACC SA 274 (CC) at para 122.
the reasonableness of imposing liability on the defendant for the harm resulting from
the conduct.”
[12] In Country Cloud Trading CC v MEC Department of Infrastructure
Development,3 the Constitutional Court stated the following:
“Wrongfulness is an element of delictual liability. It functions to determine whether
the infliction of culpably caused harm demands the imposition of liability or,
conversely, whether ‘the social, economic and other costs are just too high to justify
the use of the law of delict for the resolution of the particular issue’. Wrongfulness
typically acts a brake on liability, particularly in areas of the law of delict where it is
undesirable and overly burdensome to impose liability”.
[13] At the start of the trial, both counsel addressed the court on an application
to separate the issues in terms of rule 33(4); consequently, it was ordered that
the issue relating to liability is separated from the issue of Quantum in terms of
rule 33 (4) of the uniform rules of this court. The matter proceeded on liability
(merits) only.
[14] As indicated above, the onus is on the plaintiff to prove all the elements
of the delict complained of. Further, in determining whether the plaintiff has
discharged the onus placed upon it, the court must consider all the facts and the
3 [2014] ZACC 28; 2015 (1) SA 1 (CC) at para 20.
circumstances of this case since the plaintiff must prove its case on a balance of
probabilities.
[15] In GC v JC and Others, 4 the Supreme Court of Appeal stated the
following:
“The onus to prove these requirements rests on the plaintiff. Where a defendant is
proved to have initiated a prosecution without reasonable grounds, it does not follow
that he acted dishonestly, nor does it necessarily imply that she did so animo
inuriandi. However, in the absence of any other evidence the natural inference is that
the plaintiff has established both. The defendant thus bears an evidential burden to
rebut this inference regarding her state of mind, including any mistake that would
exclude her liability”.
[16] The evidence of the plaintiff is summarized as follows: she was attended
at the medical practice of the defendant on 28 May 2015. It was the first time
she was visiting the defendant’s medical practice, and as such, she had no
knowledge of the defendant.
[17] This issue is common cause between the parties, including how the
defendant recognized the address and how the defendant got to know the
medical practice of the defendant.
[18] She testified that upon her arrival, she was attended by a doctor she did
not know. The doctor concerned was a male doctor. She was examined, and
4 Case No 205/2019) [2021] ZSCA 012 (3 February 2021) para 40
according to her evidence, she advised the doctor that she was 16 weeks, 5 days
pregnant. The doctor gave her a note to take to the dispensary. She was given 6
tablets and advised on how to use those tablets. She was adamant that, at all
material times, the doctor who treated her was the defendant.
[19] She testified that she was negligently treated by the defendant in a
manner that resulted in her having a subtotal hysterectomy surgery, which was
necessitated by the irreparable uterine tear (rupture). She was rendered
permanently sterile by the surgery. The conclusions of fact in her testimony are
consistent with the expert report prepared on her behalf by Dr. Ngonyama, an
obstetrician and gynecologist.
[20] The defendant testified that, on the date concerned, he was not on duty in
his medical practice. Present in the medical practice was Dr. Mfolozi, who was
the locum doctor at the time. He denied having attended to the plaintiff, and
denied liability as the plaintiff alleged in pleadings and in her testimony.
[21] He explained locum as the doctor working at the place and in the stead of
another doctor, using the medical facility of that doctor, but working on his own
(locum) benefit. The locum works independently, albeit using the facilities of
another doctor. His evidence is consistent with his amended plea and the initial
plea.
[22] Notably, I have summarized both parties’ evidence, limited only to the
issue (s) to be determined. I have not included evidence not relevant to the
issue to be determined.
[23] This court has to analyze whether the plaintiff has discharged the onus to
establish the defendant's liability. This will be considered from the case made
in the pleadings and oral evidence by the plaintiff; similarly, the pleadings of
the defendant will be considered to weigh whether they, including oral
evidence, have discharged the evidential burden to rebut the liability alleged by
the plaintiff.
[24] The defence of the defendant from his pleadings is clear to say:-
24.1 At all material times in particular on 28 May 2015, the plaintiff
was attended by a locum, Dr. Mfolozi, and not by the defendant.
24.2 A copy of the plaintiff’s medical file to such effect is annexed
hereto, marked “A”. The front page of the medical file was
completed by the defendant’s receptionist, and the second page
was completed by a locum.
24.3 Further, a copy of a medical certificate booking off plaintiff for the
period 28 May 2015 to 30 May 2015, completed by the locum, is
annexed hereto, marked “B”.
24.4 Defendant is not liable for the action of the locum.
24.5 It is further admitted that a medical doctor is under a legal duty to
treat, care and/or advise a patient with the professional skill, care
and diligence that are to be expected of a qualified practitioner and
for such services to be rendered without negligence on his or her
part, as alleged in para 3.3, but defendant repeats his denial that he
did not attend on plaintiff.
24.6 The remainder of the allegations are denied. (sic the defendant’s
plea).
[25] This should be viewed with the fact that the particulars of claim make a
case of negligence against the defendant.
[26] The plaintiff, having been served with the defendant’s amended plea, in
fact from the initial plea, elected not to amend its particulars of claim, it remains
with a case against the defendant. This was despite the defendant’s denial and
substantiation that it was the locum who attended the plaintiff. This is an error
that weighed heavily against the plaintiff, as will be demonstrated later in this
judgment.
[27] On that, this court has no option but to hold on to the common principle
that ‘a party is bound by his or her founding papers’. The Constitutional court
once remarked and held that:-
“Holding parties to pleadings is not pedantry. It is an integral part of the principle of
legal certainty, which is the element of the rule of law, one of the values on which our
constitution is founded.5
[28] The question then is; whether it would be reasonable to impose a legal
duty on the defendant, in circumstances that are clear to say he did not attend to
the plaintiff, nor did he prescribe medication to the plaintiff. That, in my view,
is not a bare denial for it to be rejected, the defendant substantiated its denial
and mentioned the person who attended to the plaintiff on the date concerned.
[29] In this context, it would not be reasonable to impose liability on the
defendant; I find no wrongfulness or negligence on the defendant. I am unable
to find wrongfulness or negligence on Dr. Mfolozi, too, as no case has been
made against him, nor was vicarious liability, if it exists in this case, pleaded in
the particulars of claim.
[30] It is both fundamentally unfair and inherently unreliable for a court to
make findings against a party based on a legal issue not advanced in the
pleadings. It is fundamental to the litigation process that legal matters be
decided within the boundaries of the pleadings. It is undesirable for a court to
make a finding of liability on an issue not joined in the pleadings; such a finding
5 South African and Allied Workers Union and Another v Garvas and Others, 2013 ( 1) SA 83 (CC) at para
114.
cannot stand. I am bound not to decode issues falling outside the pleadings.
Minister of Safety and Security v Slabbert6.
[31] The question is whether the defendant had a legal duty to avoid harm or
risk to the plaintiff. The defendant needs to have a positive act towards the
plaintiff.7 In the circumstances of this case, I find that the defendant owed no
legal duty to avoid injury or harm to the plaintiff.
[32] Ms Mantyi–Mfino, counsel for the plaintiff, argued that the defendant had
negligently or fraudulently misrepresented to the plaintiff that he was the doctor
attending her, whereas she was attended by the locum. I disagree with this
submission as it was not the case made on the particulars of claim. It is
impermissible for a party to plead a particular case and seek to establish a
different case at a trial.8
[33] In conclusion, the plaintiff has failed to discharge the onus of establishing
an act of delict towards the defendant. I am unable to find a wrongful act
attributable to the defendant; liability can therefore not arise towards the
defendant.
6 [2010] 2 ALL SA 474 (SCA)
7 Hollivell v Johannesburg Municipal Council 1912 AD 659 at 652, the court held that, “ For the decision of the
present dispute it is sufficient to say that where, in consequence to some positive act, a duty is created to do
some other act or exercise special care so as to avoid injury to others, then the person concerned is under Roman
Dutch Law liable for damage caused to those whom such duty by an omission to discharge it,”
8 Notyawe v Makana Municipality and Others, 2020 (2) BCLR 136 (CC)
[34] The claim of the plaintiff should fail; costs should therefore follow the
result.
Order
[35] In the result, I make the following order;
1. The plaintiff’s claim is dismissed with the costs.
M MHAMBI
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Plaintiff : P. Mantyi – Mfino
Instructed by : S. Z. Jojo Inc.
Mthatha
Counsel for the Defendant : M. Jozana
Instructed by : M.P. Mbuyiswa and Associates
Mthatha
Heard on : 28, 29 and 30 April 2026
Judgment Delivered on : 26 May 2026