THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 017/2022
In the matter between:
NSS obo AS APPELLANT
and
MEC FOR HEALTH, EASTERN CAPE PROVINCE RESPONDENT
Neutral citation: NSS obo AS v MEC for Health, Eastern Cape Province
(Case no 017/22) [2023] ZASCA 41 (31 March 2023)
Coram: VAN DER MERWE , SCHIPPERS and GORVEN JJA, and
OLSEN and MALI AJJA
Heard: 15 March 2023
Delivered: 31 March 2023
Summary: Evidence – statement by party that opponent’s expert opinion
can be handed in as evidence – not a ‘fact admitted’ on the record of proceedings
within the meaning of s 15 of the Civil Proceedings Evidence Act 25 of 1965 –
decision on expert evidence for the court – party cannot bind court to opinion of
opponent’s expert – court entitled to make findings contrary to opinions of
experts.
2
________________________________________________________________
ORDER
________________________________________________________________
On appeal from: Eastern Cape Division of the High Court, Mthatha
(Nhlangulela DJP sitting as court of first instance):
1 The appeal is upheld with costs, including the costs of two counsel.
2 The order of the high court is set aside and replaced by the following order:
‘The applicat ion for an order that the p laintiff is not entitled to adduce
evidence in order to disprove the contents of Prof Lotz’s report dated 30 July
2015, and Dr Alheit’s report dated 27 July 2018, is dismissed with costs,
including the costs of two counsel.’
________________________________________________________________
JUDGMENT
________________________________________________________________
Schippers JA (Van der Merwe and Gorven JJA and Olsen and Mali AJJA
concurring)
[1] The appellant (plaintiff), the mother and natural guardian of her minor son
(the child), sued the respondent (defendant) in the Eastern Cape Division of the
High Court, Mthatha (the high court) for compensation on behalf of the child who
in 2006 , sustained perinatal asphyxia during labour , wh ich rendered him a
cerebral palsy quadriplegic.1 In the particulars of claim the plaintiff alleges that
the defendant’s employees at St Patrick’s Hospital, Mthatha, breached an
agreement to provide her with obstetric, maternal and neonatal care with
1 The plaintiff also claimed compensation for injuries suffered in her personal capacity.
3
reasonable skill and diligence; alternatively, that they were negligent in failing to
provide her with such care, resulting in irreversible and thus permanent injury to
the child.2
[2] The trial of the plaintiff’s action is pending in the high court. It could not
proceed when, during the presentation of her case, the high court made an order
which prevents the plaintiff from adducing crucial expert evidence in support of
her claim, on the basis that that evidence was precluded by the provisions of the
Civil Proceedings Evidence Act 25 of 1965 (the Act). The appeal is with its leave.
[3] The basic facts are uncontroversial and can be shortly stated . In terms of
the Uniform Rules of Court, t he plaintiff gave notice of her intention to present
expert evidence by two specialist paediatric radiologists, Prof J W Lotz and Dr B
Alheit, and delivered summaries of their opinions and reasons . In a report dated
30 July 2015, and based on a magnetic resonance imaging (MRI) scan, Prof Lotz
opined that the ‘MRI features are diagnostic of an acute profound hypoxic
injury in a term brain in a chronic stage of evolution’. 3 This injury results from
a combined insult of hypoxia (lack of oxygen) and ischaemia (not enough blood
pressure due to circulatory collapse) to the brain.
[4] Dr Alheit expressed a similar opinion in respect of this MRI scan in his
report dated 27 July 2019:
‘The MRI features, in the appropriate clinical context, are considered as diagnostic of an acute
profound (central) hypoxic ischaemic injury of the brain, as seen from 35 -36 weeks ’
gestation onwards, now visualised in the chronic stage of evolution on the MR scan done at the
age of 9 years and 4 months.’4
2 Section 28(2) of the Constitution provides:
‘A child's best interests are of paramount importance in every matter concerning the child.’
3 Emphasis in the original.
4 Emphasis in the original.
4
[5] The defendant sought to turn these opinions to her advantage, by informing
the plaintiff’s attorney in correspondence dated 5 April 2018 and 21 August 2019,
that both the expert summaries of Prof Lotz and Dr Alheit were ‘admitted’; and
that they could ‘be handed in as evidence in the case’. In this correspondence the
defendant specifically recorded her ‘admission’ that the child had sustained an
acute hypoxic ischaemic injury (HII) , ie the injury was sudden, unexpected or
without warning . In what follows, I refer to all of this as ‘the purported
admission’.
[6] An acute profound HII must be distinguished from a partial prolonged HII.
According to the reports by both experts, an acute profound HII is essentially a
severe asphyxial event (deficient supply of oxygen) that occurs suddenly and
progresses rapidly in term neonates, resulting in a primarily central pattern of
injury involving the deep grey matter of the brain. The cause of an acute profound
HII is generally referred to as ‘a sentinel event’. Partial prolonged partial H II
develops over a period of time, allowing compensatory redistribution of blood
flow to occur, which results in a different pattern of injury to the white matter or
peripheral structures of the brain. The importance of the distinction is that experts
in m any cases have opined that the onset of an acute profound HII is often
undetectable, as a result of which claimants have been non-suited for failing to
prove causation.5
[7] The plaintiff delivered a supplementary report by Dr Alheit dated
21 August 2019 (the supplementary report) , in which he stated that he had
expressed the opinion in his report of 27 July 2019 ‘without knowledge of the
clinical background’, and that he subsequently became aware that the child did
5 M obo M v Member of the Executive Council for Health, Eastern Cape [2017] ZAECMHC 6; Magqeya v MEC
for Health, Eastern Cape [2018] ZASCA 141; AN v MEC for Health, Eastern Cape [2019] ZASCA 102; The
Member of the Executive Council for Health, Eastern Cape v Zimbini Mpetsheni oho Luyanda Mpetsheni [2020]
ZASCA 169; The Member of the Executive Council for Health, Eastern Cape v DL obo AL [2021] ZASCA 68.
5
not suffer an intrapartum sentinel event. The significance of this is stated in the
report as follows:
‘5. This type of injury was originally claimed to be the result of a sentinel event. While the
final circulatory collapse may occur suddenly, earlier experimental research has shown that
repeated transient episodes of asphyxia over a 2 -hour period, compromise the ability of the
heart to tolerate additional insults, which then result in specific hypoxic ischaemic injury of the
central grey nuclei. The events that lead up to the circulatory c ollapse can more accurately be
divided into “external” sentinel (obstetric emergency) and “internal” sentinel events.
6. The “external” sentinel events are identified and well described in the literature (abruptio
placenta, uterine rupture, cord rupture, cord prolapse, shoulder dystocia and maternal cardiac
arrest). These events are by and large unpredictable and lead to a sudden severe lack of blood
supply to the foetus which could lead to APHII.
7. However, the l arge majority of cases with hypoxic ischaemic encephalopathy do not
suffer external sentinel events during labour. In one published study of children, who developed
HII in the absence of a sentinel obstetric emergency event, gradual emergence of a non -
reassuring foetal condition, which emerged 81 to 221 minutes prior to delivery, was described.
(Murray et al Am J Perinatal 2009). The eventual circulatory collapse, necessary for HII to
develop in these children, can be regarded as an internal sentinel event.’
[8] It appears that the supplementary report elicited the following response by
the State Attorney in a letter to the plaintiff’s attorney, dated 21 August 2019:
‘5. Defendant has . . . placed on record that the nature of injury being sudden, unexpected and
without warning, is admitted.
6. We hereby give notice that any attempt by plaintiff to disprove the above nature and
description of the injury, mentioned whether through evidence or otherw ise, will be objected
to by defendant in terms of the provisions of section 15(1) of the Civil Proceedings Evidence
Act 25 of 1965.’
[9] Dr A lheit confirmed the supplementary report in evidence. In short, h e
explained that the injury pattern described in his report of 27 J uly 2019 could
result without an obstetric sentinel event; that although the injury is described as
an acute profound HII, that does not necessarily mean that there was an abrupt
6
interruption of the blood supply, but one which could develop over a period of
time; and that this view is supported in the literature.
[10] The plaintiff then called Dr A Redfern, a paediatrician , as an expert, after
which the case was postponed. Subsequently Dr Alheit filed a third report dated
8 March 2021, in which he expressed the following opinion. The MRI features
are diagnostic of a basal ganglia and thalamus (BGT) central HII of the brain. If
there is a history of an intrapartum sentinel event, then this injury pattern could
be due to an acute profound hypoxic ischaemic event. In the absence of a recorded
obstetric emergency sentinel event, it is not possible to determine the timing,
during labour, of the injury from the MR I features alone. The timing and
mechanism of injury should be addressed by obstetricians and neuro -
paediatricians.
[11] When the trial resumed on 15 November 2021, the defendant applied for
an order that the p laintiff was not entitled to present evidence to disprove th e
‘facts’ set out in the reports by Prof Lotz and Dr Alheit, dated 30 July 2015 and
27 July 2019, respectively. The basis of the application was that the defendant
had admitted these reports in terms of s 15 of the Act. It provides:
‘Admissions on record
It shall not be necessary for any party in any civil proceedings to prove nor shall it be competent
for any such party to disprove any fact admitted on the record of such proceedings.’
[12] The high court (Nhlangulela DJP) granted the application and made the
order sought by the defendant. Given that this order was made in the course of
proceedings and at first blush seems interlocutory, the first question is whether it
is appealable. The general rule is that a judgment or order is appealable if it is a
decision which has three attributes: it must be final and not susceptible to
alteration by the court of first instance; it must be definitive of the rights of the
parties; and it must have the effect of disposing of a substantial part of the relief
7
claimed in the main proceedings.6 However, this Court has held that the rule is
not cast in stone and the three attributes are not exhaustive. 7 More recently, the
classification of an order is not determinative of whether it is appealable;8 rather,
the question is whether it is in the interests of justice that an order be corrected.9
[13] Thus, in NDPP v King,10 Nugent JA said:
‘[W]hen the question arises whether an order is appealable, what is most often being asked is
not whether the order is capable of being corre cted, but rather whether it should be corrected
in isolation and before the proceedings have run the ir full course. . . . [T]wo competing
principles come into play when the question is asked. On the one hand justice would seem to
require that every decision of a lower court should be capable not only of being corrected, but
also of being corrected forthwith before it has any consequences, while on the other hand the
delay and inconvenience that might result if every decision is subject to appeal as and when it
is made might itself defeat the attainment of justice.’11
[14] Applied to the present case, it is beyond question that the interests of justice
require that the high court’s order be corrected forthwith. I t was wrongly made
for the reasons set out below. The defendant is seeking to eliminate all evidence
which suggests that the HII which the child sustained, was not sudden or without
warning. Fundamentally, the order irr eparably prejudices the child, who is
permanently disabled and whose best interests are paramount, by preventing the
plaintiff from placing evidence which might be held to be decisive before the trial
court in support of her claim.12 Solely for this reason, the order is appealable.
6 Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532I -J. Although this case was decided under the
now repealed Supreme Court Act 59 of 1959, the position is no different under the Superior Courts Act 10 of
2013. See DRDGOLD Limited and Another v Nkala and Others [2023] ZASCA 9 and the authorities collected in
para 27.
7 Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1986 (3) SA 1 (A) at 10F; Phillips v SA Reserve
Bank 2013 (6) SA 450 (SCA) para … 457D-E.
8 Health Professions Council of South Africa and Another v Emergency Medical Supplies and Training CC t/a
EMS [2010] ZASCA 65; 2010 (6) SA 469 (SCA) para 19.
9 Government of the Republic of South Africa and Others v Von Abo [2011] ZASCA 65; 2011 (5) SA 262 (SCA)
para 17.
10 National Director of Public Prosecutions v King [2010] ZASCA 8; 2010 (2) SACR 146 (SCA); 2010 (7) BCLR
656.
11 Ibid para 50.
12 See fn 2.
8
[15] The order re nders Dr Alheit’s evidence on the supplementary report
inadmissible (that an acute profound HII could ensue without an obstetric sentinel
event). It further precludes the plaintiff from adducing any expert medical
evidence in support of Dr Alheit’s opinion. In the latter regard, the plaintiff
intends to present evidence by Dr Yatish Kara, a neuro-paediatrician, and
Dr Ashraf Ebrahim, a specialist obstetrician and gynaecologist. In Dr Kara’s
opinion, the view that the HII in this case probably occurred in the last 30 minutes
of labour (based on the MRI scan finding of BGT injury), is not supported in the
literature, which states that the pattern of injury can occur over hours (a prolonged
period); and that one cannot time an injury based solely on MRI scan findings.
Similarly, Dr Ebrahim is of the view that since there is no evidence of a perinatal
sentinel event, the time of the injury cannot be determined with certainty, save to
say that it probably occurred during labour ; and that BGT injury is the most
prevalent injury pattern in a neonatal HII without a perinatal sentinel event.
[16] A further reason which renders the order appealable is that the
administration of justice has been impeded, in that the high court has foreclosed
its own assessment of Dr Alheit’s evidence (and that of Dr Kara and Dr Ebrahim).
The court is duty-bound to assess expert evidence, together with all the other
evidence adduced by the parties to the litigation. 13 It must be satisfied that the
expert’s opinion is based on facts and underpinned by proper reasoning. 14 But
here, the high court has already excluded from its assessment of the expert
evidence, the possibility that in the absence of a sentinel obstetric event, the
pattern of injury sustained by the child could have occurred over a prolonged
period, and was not sudden. I revert below to the duty of a court when assessing
expert evidence.
13 HAL obo MML v MEC for Health, Free State [2021] ZASCA 149 (HAL) para 226, citing with approval Huntley
v Simmons [2010] EWCA Civ 54 para 9.
14 Ibid.
9
[17] That brings me to s 15 of the Act. It fi nds no application in this case, for
the simple reason that the purported admission is neither an admission, nor a
formal admission within the meaning of s 15. On first principles, an admission is
a statement adverse to the party making it. 15 The purported admission is not an
admission by the plaintiff, of a fact which she does not dispute. Neither is it an
admission by the defendant – it is not an acknowledgement of a fact detrimental
to her cause.
[18] The purported admission is not a formal admission. Section 15 deals only
with a ‘ fact admitted on the record of . . . proceedings’ (a wider concept than
pleadings). Such an admission is generally made in pleadings. Thus, rule 22(2)
of the Uniform Rules requires a defendant in her plea to admit or deny, or confess
and avoid, all the material facts alleged in the combined summons. The latter rule
must be read together with rule 22(3), which states that every allegation of fact in
the combined summons that ‘is not stated in the plea to be denied or to be
admitted, shall be deemed to be admitted’. 16 A formal admission may also be
made orally or in court by the litigant or her representative. 17 The purported
admission (made in correspondence) was not admitted on the record of
proceedings before us and is accordingly not a formal admission as contemplated
in s 15 of the Act.
[19] A party must intend to make a formal admission. The requisite intention is
determined subjectively. The admission is binding on its maker and normally
cannot be withdrawn or contradicted unless certain legal requirements have been
met. 18 A formal admission is regarded as conclusive proof of an admitted fact ,
15 18 LAWSA 3 ed para 157; C W H Schmidt and H Rademeyer Bewysreg 4 ed (2000) at 204 (Bewysreg); Law of
Evidence Lexis Nexis 3 ed 1-7.
16 Principles of Evidence at 507 para 26.4.
17 Hoffman and Zeffert The South African Law of Evidence 3 ed at 1066 ( The South African Law of Evidence);
P J Schwikkard and S E Van der Merwe Principles of Evidence 4 ed (2015) at 507 para 26.4.
18 Ibid at 506 para 26.2.1.
10
‘rendering it unnecessary for the other party to adduce evidence to prove the
admitted fact, and incompetent for the party making it to adduce evidence to
contradict it’.19 It is this effect of a formal admission that is regulated by s 15 of
the Act.20
[20] Since a formal admission has important and serious evidential implications
for its maker, the latter must intend the admission to be an admission of fact which
she does not wish to dispute.21 Thus, this Court has held that ‘it must clearly and
unequivocally appear from the pleadings that the alleged admission has been
made expressly, or by necessary implication , or according to rule 22(3) by
omitting to deny or deal with the relevant allegat ion of fact in the plaintiff’s
claim’.22
[21] In the present case and as already stated, there is simply no formal
admission by the plaintiff on the record that the child suffered an acute profound
HII, which can be regarded as conclusive proof of that fact. The reports by
Prof Lotz and Dr Alheit are nothing more than opinions base d on their
interpretation of an MRI scan of the brain, performed on 15 July 2015. Section 15
of the Act is not engaged at all.
[22] The defendant however sought refuge in MEC for Health, Eastern Cape v
DL obo AL,23 in which this Court referred to an argument by the appellant in that
case, that the court below had misdirected itself . It was submitted that the court
disregarded two of the appellant’s expert reports, which by agreement had been
admitted into evidence, and preferred the evidence of the respondent’s expert,
despite the latter’s evidence being contrary to the former’s reports. For that
19 Gordon v Tarnow 1947 (3) SA 525 (A) at 531; Ibid at 506 para 26.2.1.
20 Principles of Evidence at 507 para 26.4; The South African Law of Evidence at 1066; Bewysreg at 505.
21 Ibid.
22 AA Mutual Insurance Association v Biddulph and Another 1976 (1) SA 725 (A) at 735.
23 The MEC for Health, Eastern Cape v DL obo AL fn 5 para 22.
11
submission the appellant relied on s 15 of the Act . Molemela JA remarked that
she was not aware of any authority that had deviated from the trite principle
enunciated in that provision. To the extent that this remark could be understood
as meaning that s 15 applies to expert opinions, it should not be followed.
[23] The purported admission must be seen for what it is: an opportu nistic
attempt by the defendant to utilise to her own advantage the opinions by the
plaintiff’s expert witnesses – untested by cross-examination – under the guise of
a ‘fact’ admitted by the defendant in terms of s 15 of the Act. Little wonder then,
that t he defendant was constrained to submit that the word ‘fact’ must be
interpreted as meaning ‘information used as evidence or as part of a report’, 24
wrenched from its context in s 15.
[24] What is more, a party cannot bind the court to the opinion of her opponent’s
expert witness, by merely conceding that that opinion is correct. Indeed, this
illustrates why an expert’s opinion is not a fact, within the meaning of s 15 of the
Act. Put simply, the decision on the opinion is for the court, not the witness. For
this reason, it is open to the judge to make findings contrary to the opinions of
experts, even where the ir reports are agreed. 25 In S v M ,26 Kriegler J aptly
described the position thus:
‘A court’s approach to expert evidence has been dealt with on many occasions. The court is
not bound by expert evidence. It is the presiding officer’s function ultimately to make up his
own mind. He has to evaluate the expertise of the witness. He has to weigh the cogency of the
witness’s evidence in the contextual matrix of the case with which he is seized. He has to gauge
the quality of the expert qua witness. However, the wise judicial officer does not lightly reject
expert evidence on matters falling within the purview of the expert witness’s field.’27
24 The definition of ‘fact’ relied on was that in the Oxford SA Dictionary 2016 at 977.
25 T Hodgkinson Expert Evidence: Law and Practice (1990) at 352.
26 S v M 1991 (2) SACR 91 (T).
27 Ibid at 99J-100A, emphasis in the original.
12
[25] It is a settled principle that in order to evaluate expert evidence, the court
must be apprised of and analyse the process of reasoning which led to the expert’s
conclusion, including the premises from which that reasoning proceeds. 28 The
court must be satisfied that the opinion is based on facts and that the expert has
reached a defensible conclusion on the matter.29 The purported admission by the
defendant cannot, and does not, absolve the court from this duty. Even if experts
agree on a matter within their joint expertise, that is merely part of the total body
of evidence. The court must still assess the joint opinion and decide whether to
accept it.30
[26] Otherwise viewed, it would mean that when a party admits the correctness
of an expert’s opinion and the reasons for it, as the defendant purported to do in
this case, both the opposing party and the court are bound by that admission.
Despite being the arbiter of the dispute, the court may then not reject the expert’s
opinion, even if it is wholly indefensible. Such an approach is untenable, and at
odds with the rule that experts have a principal and overriding duty to the court ,
not to the party by whom they are retained, to contribute to the just determination
of disputes.31
[27] In the result, the following order is issued:
1 The appeal is upheld with costs, including the costs of two counsel.
2 The order of the high court is set aside and replaced by the following order:
28 Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft Für Schädlingsbekämpfung MBH 1976 (3) SA 352
(A) at 371F-G.
29 HAL fn 13 para 220.
30 Ibid para 229. This however is subject to the qualification that where experts agree on factual issues and the
applicable approach to technical analysis, the litigants are bound by such agreement, unless it has been withdrawn
and no prejudice results, or any prejudice caused can be cured by a postponement or an appropriate costs order.
See Bee v Road Accident Fund [2018] ZASCA 52; 2018 (4) SA 366 (SCA) para 73; HAL fn 13 para 229.
31 National Justice Compania Naviera SA v Prudential Assurance Co Ltd: ‘The Ikarian Reefe’ [1993] 2 Lloyd’s
Rep 68 at 81-82.
13
‘The application for an order that the plaintiff is not entitled to adduce
evidence in order to disprove the contents of Prof Lotz’s report dated 30 July
2015, and Dr Alheit’s report dated 27 July 2018, is dismissed with costs,
including the costs of two counsel.’
__________________
A SCHIPPERS
JUDGE OF APPEAL
14
Appearances:
For appellant: P A C Rowan SC and S J Sephton
Instructed by: Z Y M Ndzabela Incorporated, Butterworth
Matsepes Incorporated, Bloemfontein
For respondent: P J De Bruyn SC and S Gagela
Instructed by: The State Attorney, Mthatha
The State Attorney, Bloemfontein