Pandie v Isaacs (A135/2013, 1221/2007) [2013] ZAWCHC 123 (4 September 2013)

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[2013] ZAWCHC 123
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Pandie v Isaacs (A135/2013, 1221/2007) [2013] ZAWCHC 123 (4 September 2013)

THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT)
Appeal Case No: A135/2013
Trial Case No: 1221/2007
In the matter between: Not reportable
OMAR FARIED PANDIE
APPELLANT
And
RETHAAN ISAACS
RESPONDENT
Coram
: BLIGNAULT, SALDANHA & ROGERS JJ
Heard: 26 JULY 2013
Delivered: 4 SEPTEMBER 2013
______________________________________________________________
JUDGMENT
______________________________________________________________
ROGERS J:
Introduction
The appellant and respondent were the defendant and
plaintiff in the court below and I shall refer to them as such. The
plaintiff
sued the defendant, who is a gynaecologist and
obstetrician, for damages for performing a sterilisation procedure
on her on 4
November 2004 to which she had allegedly not consented.
The sterilisation procedure in question is known as a bilateral
tubal
ligation. The trial judge upheld the claim and awarded her
damages of R410 172,35 comprising R4 000 for past medical

expenses, R200 000 as general damages, R198 172,35 for
future medical expenses and R8 000 for loss of future earnings.
With the leave of the trial judge the defendant appeals
to a full bench. In his appeal the defendant attacks the judge’s
findings both on liability and quantum.
Factual overview
The plaintiff was 32 at the time the sterilisation
procedure was performed. The sterilisation was carried out as an
adjunct to
a caesarean section during which the plaintiff’s
fourth child was born. The operation was performed at the Chris
Barnard
Memorial Hospital (‘the CBMH’ or ‘the
hospital’). There is no complaint by the plaintiff regarding
the
performing of the caesarean section. Her case is that she did
not consent to the sterilisation.
The plaintiff’s pleaded case was understood by
the parties to advance the following causes of action in the
alternative,
namely that the performing of the sterilisation without
the plaintiff’s consent, informed or at all, constituted an
assault;
that it was a wrongful and negligent delictual act; that it
was a breach of the plaintiff’s contract with the defendant;

and that it was a breach of the
Sterilisation Act 44 of 1998
and of
certain guidelines published by the Medical and Dental Professions
Board of the Health Professions Council of South Africa
(‘the
HPCSA’). The two main assertions in the pleadings which formed
the foundation of these causes of action were
[a] that in the
consultations which preceded the performance of the operation on 4
November 2004, including the consultation
on 3 November 2004, the
plaintiff in oral discussion with the defendant made clear that she
did not want to undergo sterilisation;
and [b] that the defendant
had been negligent in not personally checking, before doing the
operation, whether the plaintiff had
signed the written consent to
sterilisation required by the
Sterilisation Act.
There
was a sharp factual dispute between the plaintiff
on the one hand and the defendant and a nursing sister Desiree du
Plessis (‘Du
Plessis’) on the other as to what happened
on the day of the operation (4 November 2004) and in the plaintiff’s
prior
consultations with the defendant (particularly on 3 November
2004). I shall identify these areas of dispute in my factual
overview.
The plaintiff fell pregnant with her fourth child in
February or March 2004. The father was Anwar Prinsloo (‘Prinsloo’)

to whom she had been married for about ten years. She already had
three children by that time, born in 1991, 1996 and 1998. The
second
and third children were delivered by caesarean section. The
plaintiff testified that Prinsloo was an abusive husband and
that
the marriage had irretrievably broken down. She also testified,
however, that the pregnancy was planned as a last attempt
to repair
the marriage. On the other hand, the psychologist who testified on
her behalf, Mr Graeme Lewis (‘Lewis’),
said that she
told him that she and Prinsloo were intending to get divorced but
then discovered that she was pregnant; that in
terms of their Muslim
faith the divorce had to be deferred until 100 days after the birth
of the child; and that she saw the
pregnancy as a last opportunity
to restore the marriage. (In the event the plaintiff and Prinsloo
did get divorced after the
birth of the fourth child.)
The plaintiff first consulted the defendant (on the
referral of her GP) on 9 March 2004 for reasons unrelated to
pregnancy. When
he saw her again on 7 April 2004 he ascertained that
she was pregnant. Further antenatal consultations took place on 5
May 2004,
2 June 2004, 5 July 2004, 2 August 2004, 31 August 2004,
29 September 2004, 21 October 2004 and 3 November 2004 (the day
before
the operation). During these consultations it was agreed that
the plaintiff’s baby would be delivered by caesarean section.
It is common cause that the question of sterilisation
arose at the consultation on Wednesday 3 November 2004, a
consultation also
attended by Prinsloo. (Prinsloo was not called as
a witness.) The plaintiff testified that the defendant had raised
this question
with her during two earlier consultations; that on
both occasions she had said she did not want to be sterilised; and
that she
repeated this somewhat irritably when the defendant raised
it again on 3 November 2004. The defendant, by contrast, said that
this was the first time he raised the matter with her; that he asked
her whether she wanted more children, to which she replied
in the
negative; that he explained the medical reasons for considering
sterilisation following what would be her third caesarean
section;
that he told her what a tubal ligation would entail; and that she
then said she wished to be sterilised.
Towards the end of the consultation, and after the
discussion of sterilisation, the defendant wrote out in the presence
of the
plaintiff and Prinsloo a letter for her to hand to the
hospital on admission the next day. He gave this to her in a sealed
envelope.
She did not see its contents. The letter informed the
hospital that the plaintiff was being admitted for an elective
caesarean
section and tubal ligation (the letter used the
abbreviations ‘C/S’ and ‘T/L’).
The medical evidence established that it was sound
practice for a gynaecologist to draw to the attention of a patient
who was
to undergo a third caesarean section the increased risks
associated with further pregnancies and to recommend a
sterilisation.
These risks were not, however, of a kind that would
make it proper for the gynaecologist to press the case for
sterilisation
if the patient was reluctant or wanted further
children.
The hospital records reflect that the plaintiff was
admitted to the hospital at 10h56 on Thursday 4 November 2004 (this
was probably
on the 8
th
floor). She was accompanied by
her husband. She was taken by an assistant nurse, Ms Z Samsodien
(‘Samsodien’), to
the maternity ward on the 11
th
floor. The plaintiff gave Samsodien the sealed letter from the
defendant. What happened thereafter is a matter of some controversy.

What is common cause is that Samsodien prepared the consent form for
the plaintiff’s signature on the basis that the plaintiff
was
consenting to a caesarean section and a sterilisation by way of
bilateral tubal ligation – one can assume that Samsodien
did
so on the basis of the defendant’s letter. It is also common
cause that in final form the references on the consent
form to
sterilisation and bilateral tubal ligation were crossed out and
initialled.
The plaintiff’s evidence was that when Samsodien
presented her with the consent form referring to sterilisation she
refused
to sign it until those parts of the form were deleted. The
defendant’s case, based on the evidence of Du Plessis, was
that
the plaintiff signed the form as completed by Samsodien; that
the plaintiff subsequently told Samsodien she no longer wanted the

sterilisation; that Samsodien consulted Du Plessis about this
development; and that the two of them returned to the plaintiff,
at
which point the deletions were made and initialled by the plaintiff.
Du Plessis testified that she told the plaintiff to inform
the
defendant when she saw him in the labour ward (which was on the 12
th
floor next to the theatre) that she had decided not to have the
sterilisation. Du Plessis also testified that she told Samsodien
to
bring this fact to the attention of the nursing staff in the labour
ward. All of this was denied by the plaintiff. (Although
the
defendant’s counsel put to the plaintiff in cross-examination
what Samsodien would supposedly say, Samsodien was not
called as a
witness.)
One of the hospital records, called a Nursing Progress
Report, records against the time 11h30 that the plaintiff was
admitted
to the ward (ie the maternity ward) for a caesarean section
and further: ‘Patient and husband verbalise they don’t

want Tubal Ligation done.’ This note appears to have been made
and signed by Samsodien.
There is another hospital record, called a
Peri-Operative Patient Record, which, in a section headed
‘Pre-Operative Assessment
and Preparation for Theatre’,
records that informed consent was obtained but there is the
handwritten qualification: ‘No
T.L. please’ (ie no tubal
ligation). This section of the Patient Record was signed by
Samsodien. Samsodien at 12h00 also
signed the next section of the
Patient Record headed ‘Baseline Observations’.
According to the Nursing Progress Report, the plaintiff
was transferred from the maternity ward on the 11
th
floor
to the labour ward on the 12
th
floor at 12h30. It appears
that she was taken there by Samsodien. The maternity operating
theatre was also on the 12
th
floor. Nurse J Solomons
(‘Solomons’) worked in the labour ward. The section of
the Patient Record headed ‘Final
Pre-Operative Check at
Theatre Reception/Handover’ bears her signature against the
times 12h30 and 12h55. This section
is on the same page as the two
sections signed by Samsodien.
The hospital records show that the plaintiff was taken
into the theatre at 13h10. It is common cause that the defendant did
not
see the plaintiff in the labour ward before she was taken to
theatre. His evidence was that he arrived at the labour ward shortly

after 13h10 in order to talk to her but was told by Solomons that
the plaintiff had already been taken to theatre. He said his

reaction to this news was: ‘Ms Prinsloo, the patient for the
caesarean section and sterilisation?’, to which Solomons

allegedly replied in the affirmative. (Solomons was not called as a
witness.)
The medical personnel in theatre were the defendant,
his assistant Dr Kriel; an anaesthetist Dr Whitehead, and a
paediatrician
Dr Zieff. The senior theatre nurse was Sister Kim
Venter (‘Venter’). There was at least one other nurse in
attendance
(her name was not established in evidence – I shall
refer to her as the ‘junior theatre nurse’). Dr
Whitehead
administered a spinal anaesthetic which permitted the
plaintiff to remain conscious and alert during the operation. The
area
of her body on which the defendant operated was shielded from
her sight by a screen behind which the defendant worked. Prinsloo

was in the theatre with her. The defendant began the caesarean
section at 13h25, and at 13h29 the baby was delivered. After closing

the uterus the defendant performed the bilateral tubal ligation
which took only a couple of minutes.
The events in theatre are a matter of dispute. Apart
from the parties themselves, the defendant called Dr Whitehead as a
witness.
Venter was deceased by the time of the trial. The other
medical and nursing personnel who were in attendance were not called

by either side.
The plaintiff’s version in summary was that prior
to the defendant’s arrival at theatre one of the nursing
sisters
looked at her folder and said that she noticed the plaintiff
was not having the sterilisation. The plaintiff did not know the
nurses’ names but described this particular nurse as ‘darker
skinned’ than the other nurse (who was fair with
red/brown
hair). The plaintiff’s expert, Dr Rosemann, in setting out the
plaintiff’s version in one of his reports,
refers to the
former nurse as an ‘Asian nursing sister’. It seems
likely that this was the junior theatre nurse.
The plaintiff
testified that Dr Whitehead also looked at her folder and remarked
that he noticed she was not having the sterilisation.
She described
the defendant’s demeanour on his arrival as aloof and distant.
He did not have any conversation of relevance
with her nor did she
hear him say anything to any other personnel about sterilisation.
Upon completion of the surgical procedures,
one of the nurses held
up and showed her a bottle containing two pieces of floating tissue
(the plaintiff testified that this
was the fairer-skinned nurse, and
it appears probable that this was Venter). Dr Whitehead then
whispered in her ear, ‘But
you didn’t ask for a
sterilisation’, at which she began to cry, eventually falling
asleep. When she awoke she was
back in the maternity ward.
The defendant’s version was quite different. He
testified that on his arrival in theatre he was met by Venter. He
greeted
everyone, including the plaintiff, and then went to the
scrub room. As he began to operate he told the plaintiff he was
proceeding
with the caesarean section. Upon delivering her child he
congratulated her on the birth of a son. After closing up her uterus
he turned to Venter and asked: ‘Are we proceeding with this
sterilisation?’. She said yes and handed him the necessary

instruments. After performing the tubal ligation he went to the
change room. Venter came there and said that the plaintiff had
not
been meant to have a sterilisation. He was shocked. He went to the
plaintiff, who was in the recovery room, and told her
he was very
sorry and would need to find out where the change occurred. He
testified that she was not asleep though she may have
been dozing
off. He then proceeded to the 9
th
floor where he had
another operation scheduled.
Dr Whitehead testified that in the ordinary course he
would have seen a patient such as the plaintiff in the labour ward
15 to
30 minutes before the operation though he had no independent
recollection of her case. He said it would make no difference to his

anaesthetic procedures whether the caesarean section was with or
without a tubal ligation. He could not remember whether he was
told
that the plaintiff’s caesarean section was with or without a
tubal ligation. He denied that he checked her folder
in theatre and
spoke to her as she alleged. He was quite positive that there had
been no conversation raising any controversy
– it was the sort
of thing he would remember. He also denied that on completion of the
operation he whispered to her as
the plaintiff claimed.
The plaintiff remained in the maternity ward until she
was discharged at noon on 7 November 2004. Much time was spent
during the
trial on what happened in the postnatal phase. The
adequacy of the defendant’s postnatal care was not an issue in
the case
and these events are irrelevant except to the extent that
they may bear on credibility. It is common cause that the defendant
did not raise the sterilisation with the plaintiff during the
postnatal phase – on his version, this was because he was

unable to ascertain the facts from the nursing staff prior to the
plaintiff’s discharge and because she did not thereafter

attend the consultation scheduled for two weeks after the operation
or respond to his secretary’s telephone calls. It is
also
common cause that the plaintiff did not raise the sterilisation with
the defendant, though he attended on her in the ward
on several
occasions prior to discharge. She said that she was too angry to do
so.
The plaintiff testified that she did not know exactly
what procedure the defendant had performed on her (apart from the
caesarean
section). She eventually consulted a new gynaecologist, Dr
Elmarie Basson, in September 2005 to confirm that she had indeed
been
sterilised. She testified that it was Dr Basson who explained
that her fallopian tubes had been cut on both sides. Dr Basson

informed her that a reversal of the bilateral tubal ligation could
be attempted (by way of a procedure known as reanastomosis).
During May 2007 the plaintiff’s then attorneys
wrote to the defendant concerning the matter (their letter is not in
the
record). He replied in a letter dated 4 June 2007. Summons was
issued in September 2007. The case was heard during October and

November 2010. The plaintiff testified and called as experts Dr GWE
Rosemann (a gynaecologist) and Mr G Lewis (a psychologist)

(‘Lewis’). The defendant testified and called as an
expert Dr JOT van Helsdingen (a gynaecologist). The defendant
also
called the nursing sister, Du Plessis and Dr Whitehead. Judgment was
delivered on 16 May 2012.
To complete the factual overview, I should mention that
the plaintiff got divorced from Prinsloo at some stage after the
operation.
The date is unclear – she testified that the
divorce was about a year and a half after the operation (which would
be in
about May 2006) though she told Lewis that she got divorced at
the end of 2005. She then formed a relationship with one Ricardo

Davids (‘Davids’). When this relationship started and
ended is not possible to ascertain with any confidence from
the
record. The plaintiff testified that she started seeing Davids about
a year and a half after the divorce (which would be
sometime between
May and December 2007) but she told Lewis variously that the
relationship started in early 2006; or that it
started six to seven
months after her fourth child’s birth (which would be in
June/July 2005). She testified that the relationship
lasted two and
a half years, though she said to Lewis that the relationship spanned
‘almost two years’. According
to Lewis, the plaintiff
told him that Davids wanted to marry her and was excited about the
possibility of a reversal of the sterilisation.
However, the
reversal procedure scared her and she was not sure she could go
through with it. David’s sister also told
her that Davids
deserved a women who did not already have children and who could
still bear children. The plaintiff thus decided
to break off the
relationship.
The judgment
a quo
After summarising the evidence of the various
witnesses, the trial judge made certain credibility findings. The
plaintiff impressed
him as an honest and credible witness. The
defendant, by contrast, was said to have been ‘very economic
with the truth’.
The judge considered that the defendant
‘cracked’ under cross-examination, particularly
concerning two apparently
different versions of his file notes and
concerning supposed contradictions between his oral testimony on the
one hand and his
letter of fortune 2007 on the other. The trial
judge labelled him an ‘outright liar’. Du Plessis also
did not impress
the trial judge as an honest and credible witness.
Dr Whitehead, so the judge concluded, had attempted to distance
himself from
anything to do with the matter. Regarding the two
gynaecological experts, Dr Rosemann was found to be a ‘very
impressive
witness’ and the judge had no doubt as to his
honesty and credibility. Dr van Helsdingen, by contrast, was
according to
the trial judge ‘not at all honest’ on the
important question as to whether it was the duty of a surgeon to
check
the patient’s written consent form prior to commencing
an operation. Lewis impressed the trial judge as honest and
credible.
The trial judge did not set out his specific factual
findings on the material areas of dispute. In the light of his
credibility
findings, though, it may safely be assumed that he
adjudicated the case on the basis that the plaintiff made it clear
to the
defendant in the consultation of 3 November 2004 that she did
not want a sterilisation; that this was a repeat of what she had

said on two earlier occasions; that on admission to the hospital on
4 November 2004 she refused to sign the consent form until
the
references to tubal ligation were deleted; that Du Plessis said
nothing to her about telling the defendant that she had changed
her
mind; and that the nurse and Dr Whitehead spoke to her in theatre as
she claimed (and that Dr Whitehead’s contrary
evidence was
thus to be rejected). Whether the trial judge rejected the
defendant’s evidence regarding what Solomons said
to him in
the labour ward and regarding his query to Venter in theatre and her
reply is not clear from the judgment. The plaintiff
in the nature of
things had no personal knowledge as to what passed between the
defendant and Solomon. And as to the alleged
query by the defendant
to Venter in theatre, the plaintiff conceded that it was possible
that there was some conversation between
the defendant and Venter
which she did not hear.
The trial judge upheld all the pleaded causes of action
(assault; delictual negligence; breach of statutory duty; and breach
of
contract), essentially on the basis that the defendant should
himself have checked the written consent form before proceeding with

the operation. This finding was in accordance with Dr Rosemann’s
opinion in oral evidence.
In regard to damages, the amount of R4 000 for
past medical expenses was apparently agreed.
As to general damages, the trial judge considered that
R200 000 was fair and reasonable. He made reference in this
regard
to loss of amenities, particularly the plaintiff’s
child-bearing capacity; disfigurement (on appeal, disfigurement was

said to relate to the scars from a future reanastomosis); the
plaintiff’s emotional suffering; and pain and suffering in

general.
The sum awarded in respect of future medical expenses,
namely R198 172,35, was arrived at by applying a 10%
contingency deduction
to a gross amount of R220 191,50.
Although not spelt out in the judgment, we were told the gross
amount was calculated thus:
the cost of the reversal procedure (reanastomosis) –
R35 000;
five cycles of in vitro fertilisation (‘IVF’)
treatment at R35 000 per cycle – R175 000;
17 sessions of psychotherapy at R599,50 per session –
R10 191,50.
Finally, an amount of R8 000 was awarded in
respect of future loss of earnings, based on the fact that
reanastomosis and
five cycles of IVF would require the plaintiff to
be off work for about a month.
The legal framework
Physical interference with another’s body is
delictually wrongful unless there is a ground of justification (Van
der Walt
& Midgley
Principles of Delict
3
rd
Ed
para 78 and case there cited). One such ground is consent,
encapsulated in the maxim
volenti non fit iniuria
. In the
context of physical interference in the form of medical treatment,
the consent required is informed consent as explained
in
Castell
v De Greef
1994 (4) SA 408
(C).at 426F-H. If a doctor’s
treatment is wrongful because there is no informed consent, he will
be liable to the patient
in delict if his wrongful conduct was
perpetrated with fault (
dolus
or
culpa
) and caused the
harm of which the patient complains.
The plaintiff in this case pleaded, among other things,
that the defendant’s conduct was an assault, alternatively a
wrongful
and negligent act. The use of the word ‘assault’
with reference to the administration of medical treatment without

consent was questioned in
Broude v McIntosh
1998 (3) SA 60
(A) at 67H-68F (and see also Van der Walt & Midgley
op cit
para 78). In
Louwrens v Oldwage
[2004] 1 All SA 532
(C)
para 99 the doubt expressed by the Appellate Division was said to
have been
obiter
, and
Castell
(a full bench decision)
was said to support the classification of such conduct as an
assault.
Louwrens
was overruled by the Supreme Court of
Appeal without reference to this aspect –
2006 (2) SA 161
(SCA).
Castell
does not, as I read it, address this
particular issue. In my respectful view, the use of the word
‘assault’ is unnecessary
in this setting and is apt to
confuse. In criminal law, where one has various specific crimes with
their own distinctive elements,
assault is an offence which requires
among other things that the accused should have acted with
dolus
,
which encompasses knowledge of the wrongfulness of his conduct. If,
for example, the accused mistakenly believes he is acting
in
legitimate self-defence, he will not be guilty of assault. Delictual
liability, by contrast, is determined with reference
to overarching
general principles of wrongfulness, causation, fault and damage.
Unlike English law, we do not have a collection
of separate torts.
In English law, for example, a doctor who performs an operation
without consent may be sued for the tort of
battery or the tort of
negligence or both (see Jones
Medical Negligence
(2003) paras
2.018 – 2.019 and paras 6.003 – 6.162 where there is
detailed discussion of the differing rules relating
to consent and
causation for the two torts). In our law, by contrast, the wrongful
invasion of another’s body causing harm
gives rise to
delictual liability if the perpetrator acted with
dolus
or
culpa
. If a defendant has acted with
dolus
(encompassing knowledge of the wrongfulness of his conduct) his
conduct might coincidently amount to a criminal assault but it
adds
nothing to a delictual analysis to use this label. But the word
‘assault’ is also misleading where it is used
in a
medical setting to denote merely that the doctor administered
treatment without informed consent, because such conduct,
even
though it is wrongful, does not without more give rise to liability
and would rarely be perpetrated with
dolus
– it might
not even be negligent.
Mr Bhoopchand for the plaintiff did not argue before us
that the defendant’s performance of the sterilisation was an
assault
in the sense of treatment administered in the knowledge that
the plaintiff had not consented to it. As will appear from my later

analysis of the facts, Mr Bhoopchand’s concession was clearly
right. I thus do not think the trial judge should have typified
the
defendant’s conduct in this way.
Apart from the case based on
delictual negligence, the plaintiff pleaded a concurrent action in
contract. This is permissible
in the medical context (
LAWSA
2
nd
Ed Vol 8 para 53; cf
Lillicrap,
Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd
1985
(1) SA 475
(A) at 499A-500A and 501H-502G,
inter
alia
explaining
certain
dicta
of
Innes CJ in
Van Wyk
v Lewis
1924 AD
438
which was a medical case). However, and given the centrality of
consent to the delictual and contractual analysis, Mr Bhoopchand

correctly accepted that if the delictual claim failed the
contractual one would fare no better. If, on the other hand, the

delictual claim was correctly upheld by the trial judge, a
concurrent finding in contract would not yield better results for

the plaintiff than the delictual one. On the contrary, in a claim
based on breach of contract the plaintiff would be confined to

claiming pecuniary loss – no general damages for pain and
suffering could be recovered (see
Administrator,
Natal v Edouard
[1990] ZASCA 60
;
1990
(3) SA 581
(A) at 595D-597H).
The plaintiff referred in her pleadings to the
Sterilisation Act and
the HPCSA guidelines. The guidelines do not
have the status of law and are merely part of the evidential
material to be weighed
in determining the standards reasonably to be
observed by doctors.
Section 2(2)
of the
Sterilisation
Act stipulates
that a person capable of consenting to be sterilised
may not be sterilised ‘without his or her consent’. The
word
‘consent’ is defined in
s 1
as meaning
‘consent contemplated in
section 4
’. As at November 2004
s 4
read thus:
1
‘
4.
Consent. – For the purposes of this act, “consent”
means consent given freely and voluntarily without any inducement
and
may only be given if the person giving it has –
been given a clear explanation
and adequate description of the –
proposed plan of the procedure;
and
consequences, risks and the
reversible or irreversible nature of the sterilisation procedure;
been given advice that the
consent may be withdrawn at any time before the treatment; and
signed the prescribed consent
form.’
Regulation 2(1)
of the regulations prescribed under
s 8
of the Act provides that a person who is capable of consenting and
who requests that a sterilisation be performed on him or her
‘shall
complete Part A and Part B of Form 1 and submit such form to the
head of the health facility, together with the
standard consent
form’. The phrase ‘standard consent form’ is
defined in the regulations as meaning ‘a
form provided by the
health facility for recording consent to the administration of a
local or general anaesthetic, and an accompanying
surgical
procedure’.
Part A of Form 1 provides for the insertion of the
following particulars: name, ID number, age, race and number of
children. Part
B is a signed declaration requesting the
sterilisation.
Although the regulations contemplate two documents –
a signed request for sterilisation in prescribed form and the
hospital’s
standard consent form – no reference was made
in the present case to the presence or absence of a signed request.
In so
far as the Act is concerned, the case was fought on the basis
that what was relevant was the hospital’s standard consent

form and the manner in which it was amended at the plaintiff’s
insistence.
The precise significance of the
Sterilisation Act in
the context of a civil claim for damages is a question not without
difficulty. The plaintiff appears to have relied on the Act
as
conferring a distinct right of action. Mr Albertus SC for the
defendant submitted that no civil remedy was conferred by the
Act
(though contravention is a criminal offence – see
s 9).
In
Steenkamp NO v Provincial Tender Board, Eastern Cape
2006
(3) SA 151
(SCA) Harms JA said (paras 20-22) that a statutory and
common law duty may overlap. Where the legal duty involved is
imposed
by statute the focal question is one of statutory
interpretation, namely whether the statute confers a right of action
or provides
a basis for inferring that a legal duty exists at common
law. He said that our case law is not clear when it comes to drawing
the boundary between liability due to breach of statutory duty and
common law liability. He expressed the view that if the statute
on a
proper interpretation provides a remedy in damages a common law duty
cannot arise; and that if the statute does not provide
for a damages
remedy, to infer a common law remedy would be contrary to the
statutory scheme.
If a statute on a proper interpretation confers a civil
remedy for damages the further question may arise as to whether the
liability
is strict or requires proof of fault (
LAWSA
2
nd
Ed Vol 8 para 74).
In my view it is unnecessary in the present case to
search for a right to claim civil damages in the
Sterilisation Act.
The
interference with another person’s body has always been
prima facie
wrongful at common law, and this is as true for
an act of sterilisation as any other physical interference. If the
wrongful act
causes harm and is performed with
dolus
or
culpa
there is a common law remedy. The question is whether the common law
ground of justification in the form of consent is –
in
relation to sterilisations – now qualified by the Act, so that
what a defendant must prove to negative wrongfulness
is consent in
accordance with the Act (in which event informed oral consent would
not suffice). To hold that the Act regulates
for all purposes,
including civil law, the manner in which justification by consent is
to occur in relation to sterilisations
is not to say that the Act
confers a civil remedy for damages – that remedy is already
supplied by the common law.
In my opinion, the Act should indeed be interpreted as
regulating the manner of consent to sterilisations for all purposes,
including
as a justification ground in delict. The Act is directed
at protecting the individual interests of patients in relation to
their
reproductive capacity and respecting their individual right of
choice. It strikes me as anomalous that a
prima facie
wrongful
act may be legitimised by obtaining a consent which does not comply
with the Act and where the performance of the sterilisation
is
(subject to questions of
mens rea
) a criminal offence. It may
be argued that it would be unsatisfactory to hold a doctor liable
where he has obtained informed
oral consent but has failed to
procure a written consent in accordance with the Act. The answer to
that objection is that at
common law the doctor is not liable merely
because the act of sterilisation is wrongful; it is also necessary
to show that he
acted with fault and that the element of causation
is satisfied. Where a patient has given informed oral consent but
complains
ex post facto
that there was no written consent,
the test for causation would entitle one hypothetically to
substitute a lawful course of conduct
in which the doctor sought the
written consent before operating; if one knows that the patient gave
informed oral consent, one
could probably conclude that he or she
would have signed the consent form if requested to do so, so that
the doctor’s wrongful
conduct was not the cause of harm.
Factual analysis
In my view, an application of the law to the facts of
this case leads to the conclusion that written consent as required
by the
Act was not present, so that the performance of the
sterilisation, which was
prima facie
wrongful at common law,
was not successfully justified by the defendant; but that the
defendant performed the sterilisation in
the
bona fide
belief
that the plaintiff had consented, and that in so doing he acted in
accordance with prevailing practice in his profession
and was not
negligent. He should thus not have been found liable. The evidence
indicates that the hospital staff were negligent
in dealing with the
obtaining of the plaintiff’s written consent. Whether the
defendant might have been held vicariously
liable for their
negligence was not, however, a matter which was pleaded and it would
not be permissible or fair to decide the
case on the basis of
vicarious liability at this late stage of proceedings.
These conclusions require, firstly, a consideration of
the evidence as to what occurred at the consultation on 3 November
2004.
If the plaintiff, as she testified, rejected the
sterilisation, it is obvious that what the defendant did the next
day must either
have been knowingly wrongful or at least grossly
negligent. I do not think Mr Albertus SC for the defendant suggested
otherwise.
The position is, however, different (as will appear) if,
as the defendant testified, the plaintiff gave oral consent on 3
November
2004 (though Mr Bhoopchand did not concede that this would
be decisive). I should add, at this point, that although the
pleadings
made reference to the need for consent to be
informed
,
the case was not contested on the basis that if the defendant’s
version was true the plaintiff’s consent on 3 November
2004
was nevertheless not an informed one. On the defendant’s
version he gave a detailed explanation of the risks underlying
his
advice in favour of sterilisation and of the nature of the
sterilisation procedure. If anything was missing from the alleged

advice, it was not shown to have been significant or to have been
something which would have affected the plaintiff’s response

on that day.
The version of the plaintiff on the one hand and the
defendant and Du Plessis on the other were in direct conflict. The
correct
approach to resolving the factual disputes arising from
their irreconcilable versions is the one described by Nienaber JA in
Stellenbosch Farmers’ Winery Group Ltd & Another v
Martell et Cie & Others
2003 (1) SA 11
(SCA) para 5:
’
To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility of a particular witness
will depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not
necessarily in order
of importance, such as (i) the witness’ candour and demeanour
in the witness-box, (ii) his bias, latent
and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf,
or with established fact or
with his own extracurial statements or actions, (v) the probability
or improbability of particular
aspects of his version, (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the
same incident or events. As to (b), a
witness’ reliability will depend, apart from the factors
mentioned under (a)(ii), (iv)
and (v) above, on (i) the opportunities
he had to experience or observe the event in question and (ii) the
quality, integrity and
independence of his recall thereof. As to (c),
this necessitates an analysis and evaluation of the probability or
improbability
of each party’s version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c) the court
will
then, as a final step, determine whether the party burdened with
the
onus
of proof has succeeded in discharging it. The hard case, which will
doubtless be the rare one, occurs when a court’s credibility

findings compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former,
the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail.’
In my respectful view the trial judge failed properly
to evaluate the conflicting evidence in accordance with this
approach. He
mentioned supposedly unsatisfactory features of the
defendant’s evidence without addressing their real
significance or
the defendant’s explanations; he did not refer
to some unsatisfactory features of the plaintiff’s evidence;
and most
importantly, he did not make reference to the inherent
probabilities. His credibility findings did not, as far as I can
discern,
rest on his assessment of the demeanour of the witnesses
but were based rather on his assessment of the objective quality of

their evidence. In the circumstances, and despite the well-known
reluctance of appellate courts to upset the credibility findings
of
a trial judge, I consider that this is a case where this court
should revisit the factual findings (see
Santam Bpk v Biddulph
2004 (5) SA 586
(SCA) para 5).
I have summarised the competing versions as to what
happened at the consultation on 3 November 2004 on the subject of
sterilisation.
On both versions Prinsloo was present, and on the
plaintiff’s version he participated in the decision –
she testified
that when the subject arose Prinsloo said that he did
not want her to be sterilised but that it was her body to decide.
The plaintiff
did not call Prinsloo as a witness. It is true that by
the time of the trial they were divorced and that he had apparently
been
an abusive husband, but the plaintiff’s testimony
concerning his conduct during the consultation and at the hospital
does
not suggest that he was hostile or uncaring towards her in
relation to the birth of their child. She did not testify that their

relationship subsequent to the divorce was such that she could not
call him to corroborate her version.
There are various inherent probabilities which point
against the plaintiff’s version that she refused consent at
the consultation
on 3 November 2004 (of these, the third and fourth
mentioned below are the most significant):
[a] Firstly, it is common cause that there was no
financial or other incentive for the defendant to press the plaintiff
to
undergo a sterilisation. His fee for a tubal ligation was not more
than R250. It was not put to him in cross-examination that he
was a
paternalistic surgeon who was intent on performing the procedure
because ‘he knew best’. If on a prior occasion
the
defendant had mentioned sterilisation and the plaintiff had said no,
it seems unlikely that the defendant would have raised
the matter
again. Yet on the plaintiff’s version he did so on three
occasions, her answer being the same each time. It seems
more
probable that the matter was (as the defendant testified) raised only
once, and that this was on 3 November 2004.
[b] Second, the plaintiff was 32 years old in
November 2004 (she turned 33 in December 2004) and was about to give
birth to
her fourth child. While apparently being reasonably
comfortable financially, she was not affluent. There were certain
risks associated
with further pregnancy. While a woman may obviously
choose to have further children at a later age, it is not improbable
that a
woman in her position would have agreed to a sterilisation.
[c] Third, immediately after the discussion about
sterilisation the defendant wrote out a referral letter in the
presence of
the plaintiff and Prinsloo which stated that she was to
be admitted the next day for a caesarean section and tubal ligation.
The
plaintiff’s counsel did not put to the defendant nor argue
to us that the defendant included the reference to tubal ligation

deliberately, knowing it to be contrary to the plaintiff’s
wishes. On the plaintiff’s version, her rejection of
sterilisation
was clearly conveyed to the defendant without scope for
misunderstanding [5/449-450]. Mr Bhoopchand submitted that the
defendant
could have added ‘+ T/L’ mistakenly, ie
absent-mindedly. He pointed to the fact that the defendant in the
same
letter mistakenly described the plaintiff’s child-bearing
history as ‘G
3
P
4
’ (medical
shorthand for a woman who has been pregnant three times and given
birth to viable babies twice) whereas she was
in fact a G
4
P
3
.
However, there is a qualitative difference between the two ‘errors’:
in the one case the defendant intended to record
the plaintiff’s
child-bearing history but made an error with the digits; in the other
case, one would have to find that he
inserted additional words which
should not have been there at all. This is, I suppose, possible but
it strikes me as most unlikely.
[d] Fourth, the defendant quite clearly arrived at
theatre the next day under the impression that the plaintiff was
there for
a caesarean section and a tubal ligation. It was not
suggested to him in cross-examination nor submitted to us in argument
that
the defendant performed the sterilisation knowing that the
plaintiff did not want it. Apart from the absence of financial or
other
incentive, he would have known such an act to be grossly
improper and one that would land him in trouble with the law and with
his professional body. Even if it be supposed that an experienced
gynaecologist could in consultation absent-mindedly write a referral

letter incorrectly stating that his patient was to be admitted for a
tubal ligation when she had moments ago clearly said no, that
could
not on the plaintiff’s version have been an error as to what
was actually in his mind. On the plaintiff’s version,
if the
defendant had been asked by a hypothetical bystander at the end of
the consultation whether the plaintiff had consented
to the
sterilisation his answer would have been an unequivocal ‘no’.
It is difficult, then, to see how he could have
arrived at the
theatre barely 24 hours later under a different impression. Yet quite
obviously he was under the impression on 4
November 2004 that she had
consented.
It might be said that an assessment of the inherent
probabilities must also take into account that as a fact the
plaintiff did
on the following day require the hospital’s
consent form to be amended to delete reference to sterilisation.
This might
be said to point to a conclusion that this was also her
attitude the previous day. However, if the matter of sterilisation
was
first raised (as the defendant testified) on 3 November 2004, it
is not far-fetched that the plaintiff may have reconsidered the

matter overnight. The procedure was not a medical necessity.
Sterilisation is a very personal choice and conflicting emotions
may
come into play.
Another factor which might be said to favour the
plaintiff’s version is that she admittedly did not tell the
defendant in
theatre on 3 November 2004 that she had changed her
mind. This might be said to indicate that her attitude was in truth
consistently
against sterilisation and that she had no reason to
believe the defendant thought otherwise. One possibility is that
although
she remained awake during the operation, the combined
effects of the spinal anaesthetic and of the emotions and tensions
associated
with imminent surgery and child-birth caused her not to
act in the logical way one might have expected. If she was still
alert
and thinking logically, it is on any reckoning peculiar that
she said nothing to the defendant on his arrival in theatre. Even
on
her version of the consultation, she must have realised from her
interactions with Samsodien regarding the consent form that
there
was some misunderstanding, because Samsodien clearly only filled out
the consent form in the way she did because of the
content of the
defendant’s referral letter. A patient who was firmly against
sterilisation but aware that her surgeon might
be labouring under a
misapprehension would ordinarily be anxious to bring this to his
attention. If, on the other hand, the performance
of the
sterilisation raised conflicting emotions within her she may have
said nothing. I do not think it is possible to reach
any firm
conclusion. I regard her failure to raise the matter with the
defendant in theatre as a puzzling but neutral consideration.
Although the inherent probabilities in my opinion point
in favour of the defendant’s version that on 3 November 2004
the
plaintiff orally consented to the sterilisation, other aspects
relevant to credibility must also be assessed. The trial judge
considered that the defendant’s credibility was undermined by
supposed contradictions between his letter of 4 June 2007
and his
oral testimony. As will appear, I do not regard the supposed
contradictions as being of much moment. It should be remembered
that
the defendant was writing the letter more than 2½ years after
having performed the operation, with no intervening
complaint from
or contact with the plaintiff. He was relying on his memory and his
own consultation notes – he had not
yet seen the hospital
records. The matters mentioned by the trial judge in relation to
this letter are the following:
[a] In the letter the defendant said that the
plaintiff was accompanied to the consultation by her ‘husband’.
In
his oral testimony he said that the plaintiff was accompanied by a
man whom he saw that day for the first time and whom she did
not
introduce. His explanation in cross-examination was that after the
mistaken performance of the sterilisation came to light
Venter and
another nurse told him that the man was the plaintiff’s
husband. Prinsloo, it will be recalled, was at the hospital
on 4
November 2004 and met the nurses. There is nothing implausible about
this explanation nor was it shown how it would have advanced
the
defendant’s case falsely to claim that Prinsloo was not
introduced to him at the consultation on 3 November 2004.
[b] In the letter the defendant referred to the
date of the operation as 4
October
2004 whereas the correct
date was 4
November
2004. This was an obvious typographical
error since the defendant correctly stated in the letter that the
last consultation was
on 3 November 2004 and that the operation was
performed the next day.
[c] In the letter the defendant said that when he
came to the point of performing the tubal ligation he asked the scrub
sister
‘whether I am proceeding with the sterilisation’
and she replied ‘yes’. According to the trial judge, the

defendant’s oral testimony was that before starting the tubal
ligation he asked the scrub sister ‘whether or not consent
for
tubal ligation was obtained’. Even if the trial judge’s
recordal of the evidence were correct, it would not be
a material
discrepancy, because inherent in the former version of the question
is the matter of consent – there would be
no other purpose for
asking it. But as a fact the defendant did not in his oral testimony
say that he formulated his question to
Venter by referring to the
obtaining of consent – his oral evidence was consistent with
the letter [see 13/1232 and 13/1262-4].
[d] In the letter the defendant stated that he
learnt of the fact that the sterilisation had been erroneously
performed from
Venter while he was attending to the plaintiff in the
recovery room where she was dozing off. In his oral evidence he
testified
that Venter informed him of the error while he was in the
change room or as he was coming out of the change room and that he
then
followed her to the recovery room. This seems to me to be a
minor difference of detail. It is true that in his letter he did not

add that in the recovery room he spoke with the plaintiff by
expressing regret and saying he would need to find out where things

had gone awry. He explained in cross-examination that his letter was
not intended to set out every detail. Perhaps his memory on
this
aspect was only jogged during subsequent consultation. It seems
inherently likely that upon learning of the error he would
have
expressed regret though if the plaintiff was dozing off she may not
have heard it or may have forgotten.
[e] In the letter the defendant said that due to
other emergencies he had not seen the defendant on Sunday 7 November
2004
prior to her discharge. In the event, the hospital records
reflected that the defendant saw the plaintiff at 11h00 on that day,

about an hour before she discharged herself (he had intended she
should only be discharged on the Monday). The defendant explained

that when he wrote his letter he had not seen the hospital records
and that he did indeed have emergencies over that weekend. During
his
evidence in chief he was taken to the Nursing Progress Report and
could then recognise the instructions recorded there by the
nurse as
having emanated from him. There is nothing about this which reflects
adversely on his credibility.
Before dealing with the defendant’s consultation
notes, it is convenient here to mention that the plaintiff’s
own
evidence was by no means unblemished. In general, my impression
from the transcript is that of an intelligent person, deft at
sparring with her cross-examiner and with the undoubted ability to
put the best gloss on her case. Among the points of criticism
are
the following:
[a] In cross-examination the plaintiff stated that
the pregnancy was planned as a last attempt to save the marriage
[4/399-401].
This is at odds with what she told Lewis, namely that
although she only divorced Prinsloo at the end of 2005 ‘she had
planned
before this to get divorced from him, but then discovered
that she was pregnant with her youngest child’ [3/224; see also

8/715, 720-721 and 754-7]. This latter version is more consistent
with her evidence in chief, given in a different context, that
she
was on contraception prior to the pregnancy [4/351]. The suspicion
arises that her evidence that the pregnancy was planned
was intended
to neutralise a contention that she had decided to have no further
children.
[b] Although she said that the pregnancy was seen
by her and Prinsloo as a last chance to make their marriage work, she
testified
that as at November 2004 she did not intend to have any
more children with Prinsloo but that she would still have wanted to
be
able to have children with someone else who could make her happy
[4/392]. It strikes one as strange, this being the case, that on
3
November 2004 she would – as she claimed at one point in her
evidence – have sought Prinsloo’s view at the

consultation on the question of sterilisation.
[c] She was adamant that her first consultation
with the defendant was a consultation concerning her pregnancy. It is
clear,
though, from the defendant’s notes of the first
consultation on 9 March 2004 and from her GP’s referral letter
that
she saw him on that date for other reasons and was not yet known
to be pregnant. She came across as rather obstreperous on this
aspect
[5/416-428].
[d] She initially testified that when the question
of sterilisation was discussed (on three occasions, according to her)
the
defendant did not ask whether she intended to have more children
[5/461] and did not mention any risks associated with further
pregnancy, instead advising that she could have two or three more
caesarean sections because her skin was resilient and healed quickly

[4/352-3; 4/403-11]. It seems most unlikely that the defendant would
not have mentioned the risks. The expert evidence shows that
the
subject of sterilisation would only have been raised by him because
of the increased risks of complications associated with
further
pregnancies following a third caesarean section. It would also have
been standard practice in the context of a discussion
on
sterilisation to ask whether the patient intended to have more
children. Later in cross-examination the plaintiff conceded that
the
defendant did explain certain risks to her but she insisted that he
told her that she herself would not face these risks [5/464-5].
The
defendant denied that as an experienced gynaecologist he would ever
have expressed the view that a patient was not at risk
because of her
healthy skin [13/1226], and the plaintiff’s own expert, Dr
Rosemann, testified that he would not expect a
gynaecologist to
express such an opinion [9/849-50].
[e] There is some inconsistency in the plaintiff’s
version as to how her husband was brought into the conversation about

sterilisation. She did not in her evidence in chief mention his
involvement in the discussion or decision. At one stage in
cross-examination
she testified that when the defendant raised the
matter she turned to her husband and said that the defendant was
asking about
sterilisation – in other words, she sought his
view [5/439-444]. Later she said that Prinsloo overheard the
discussion about
sterilisation and intervened to ask what it was
about because this was the first time he was hearing about it [5/446;
5/462-3].
[f] According to the plaintiff, the question the
defendant asked her on 3 November 2004 was whether she was
still
having the sterilisation, which made her irritable because she had
already said no on prior occasions [5/445]. The question she

attributed to the defendant requires one to accept not only that he
was repeatedly raising the matter but also that he erred on
3
November 2004 by implying that on the prior occasions she had
expressed a wish to be sterilised. This strikes one as an implausible

scenario. I may add that the defendant’s consultation notes for
the period prior to 3 November 2004, the authenticity of
which has
not been questioned, made no mention of any discussion of
sterilisation.
[h] The defendant’s evidence was that
initially the intention was to perform the caesarean section in the
next week but
that the plaintiff was feeling uncomfortable and wanted
to have it sooner. He said he phoned the hospital in the presence of
the
plaintiff and Prinsloo on 3 November 2004 and ascertained that
there was a slot for a caesarean section and tubal ligation at 13h15

the following day. This, according to him, is when he obtained the
time mentioned in his referral letter. The plaintiff’s
evidence
in cross-examination on this aspect does not read particularly well
[6/514-529]. She denied that the defendant himself
phoned the
hospital, claiming that he buzzed his secretary and asked her to book
the plaintiff into the hospital [5/469-70; 6/520-3];
but she also
said that the sealed referral letter (which we know specified the
time of the operation) had already been given to
her by the time the
defendant buzzed his secretary [6/517].
[i] She maintained that the operation was performed
on a Friday and that she was discharged on Monday. She claimed to
remember
having asked the defendant why the operation was being done
on a Friday, given that it was mosque time. She conceded in
cross-examination,
however, that the calendar showed that the date of
the operation (4 November 2004) was a Thursday and that the date of
discharge
(7 November 2004) was a Sunday.
[j] Dr Rosemann stated in his third report that
according to the plaintiff the admissions nurse (presumably
Samsodien) opened
the referral letter in the plaintiff’s
presence and said to her that she was booked in for a caesarean
section and tubal
ligation [3/212]. He confirmed in cross-examination
that the plaintiff told him this [9/894-5; 9/899-900]. In her oral
testimony
the plaintiff first said that she handed the sealed letter
to the admissions nurse who went off with it to prepare the consent
form. In cross-examination she said she could not remember if the
letter was opened in her presence [6/544-5] but later became quite

definite that it was not [6/567; 6/573-5].
[k] Although she claimed not to have heard the term
‘tubal ligation’ from the defendant on 3 November 2004
(or before),
her statements to Dr Rosemann and her evidence as to the
scratching out of this term from the form on 4 November 2004 tended
to
indicate knowledge of the term prior to her arrival at the
hospital.
[l] She was, as I have mentioned before, vague and
inconsistent as to the date of her divorce from Prinsloo and as to
the beginning,
end and duration of her relationship with Davids.
I do not suggest that each of these features is
individually of great moment but overall I do not believe that a
careful consideration
of the record justifies a conclusion (leaving
aside the inherent probabilities) that the plaintiff was a palpably
credible witness
while the defendant was not. One must also bear in
mind that a rejection of a witness’ testimony on some aspects
does not
necessarily lead to a rejection of the witness’
evidence on all material issues.
Turning to the defendant’s consultation notes
(which cover the period 9 March to 8 November 2004), a question mark
hangs
over the authenticity of the notes for the period as from 3
November 2004. The notes for 9 March to 20 October exist in one form

only; they were written on both sides of two pages of thin paper,
being the defendant’s ordinary paper for consultation
notes.
Their authenticity is not questioned. However, two versions exist of
the notes entered against the dates 3, 4 and 8 November
2004: at
2/134-5 (version A) and 3/292-3 (version B). Apart from the fact
that the layout of the writing in the two versions
differs, the
texts differ in the following respects: version B has the additional
words ‘also L/W’ (‘also labour
ward’) at the
end of the note for 3 November; and version A’s note against
the date 8 November has at the end an
additional commentary by the
defendant as to why he raised the issue of sterilisation on 3
November and as to what she should
have done on 4 November if she
had changed her mind.
Even on the defendant’s version, the notes
written by him against the dates 4 and 8 November must have been
written after
he learned of the error in sterilisation (he says he
was told of the problem shortly after completing the procedure and
before
he would have had a chance to write these particular notes).
However, his evidence was that his note for 3 November was written

at the end of the consultation (ie virtually contemporaneously). He
testified that the note he wrote on that day was version
B; that
after he faxed a copy thereof to his attorney (this would have been
several years later), the latter said it had not
come through
clearly; that he then rewrote the note on thicker paper and faxed
this to his attorney because he thought the poor
fax quality was
attributable to the thin paper of the original; and that version A
was the rewritten notes. In cross-examination
it was put to him that
his explanation was false, that version A was the original and that
version B was a rewritten version;
and that it was not rewritten for
the purpose claimed by the defendant but to present it as if it were
the original note.
The significance of this is the following. In both
versions the note for 3 November includes the words: ‘For C/S
+ T/L mane’
(medical shorthand meaning ‘For caesarean
section and tubal ligation tomorrow’). However in version A
the text ‘+ T/L’
appears to be squeezed in between
‘C/S’ and ‘mane’ whereas in version B the
elements of the phrase are
regularly spaced. The defendant’s
evidence was that when he prepared the rewritten version (which he
said is version A)
he must have initially omitted the text ‘+ T/L’
and then inserted it before sending it to his attorney (though
I do
not read his evidence as claiming that he distinctly remembers
this); and that he must also have mistakenly omitted to rewrite
the
text ‘also L/W’ which appears in version B. It was put
to him in cross-examination that version A was the original
version
of the note and that in contemporaneous form the note for 3 November
ended with the text ‘For C/S mane’;
and that everything
else thereafter was written after he already knew of the problem and
that he then also inserted the text
‘+ T/L’ to make
it look as if the plaintiff had consented to the tubal ligation when
this was not in truth the
case.
In my view the probabilities are firmly against the
defendant’s explanation, and I would reject it:
[a] He said his attorney asked for a clearer
version of his notes. If that were true, it must have been obvious to
him that
what the attorney wanted was a better copy of his actual
note, not a rewritten version. He could have had the original or a
good
photocopy delivered to his attorney; in the meanwhile he could,
if necessary, have arranged for his secretary to type a transcript
of
the note so that his attorney could see exactly what he had written.
I cannot accept that an experienced professional person
would imagine
that his attorney was wanting a non-contemporaneous rewritten version
of the notes. And since the defendant claimed
to have had to find
time between consultations to produce the rewritten version (hence
his supposed errors) it is doubly unlikely
that he would have
followed this cumbersome procedure in the first place.
[b] If the attorney wanted a better version of the
notes, why did the defendant only rewrite the notes for 3, 4 and 8
November?
There is nothing to show that the fax quality of the
earlier pages would have been better – they were all written on
the
same thin paper. It is suspicious that only the two controversial
pages were rewritten.
[c] If version A is the rewritten version, it is
most peculiar that it is more untidy and less legible than the
supposed original,
version B. For example, the jotting down of the
blood pressure reading in version A is indecipherable (except no
doubt to the defendant)
but is reasonably legible in version B. In
version A the defendant’s writing of his observation ‘urine
clear’
is rendered as an abbreviation ‘Ur Cl’ or
perhaps as an extremely rapid and illegible rendition of the full
words,
and is in keeping with the way he recorded the same
observation in five of his earlier and admittedly authentic notes;
whereas
in version B the full phrase is written out in legible form.
It would be odd if a version rewritten for the benefit of the
attorney
were less legible than the original (even if the writing
came out more clearly in a fax). These considerations point to a
conclusion
that version A is the original.
[d] There is also force in Mr Bhoopchand’s
submission that the concluding paragraph of the note purportedly made
on 3
November is the first entry in all of the defendant’s
notes in narrative style rather than his usual abbreviated and
epigrammatic
manner. This paragraph has a defensive quality about it,
something written after the defendant knew there was a controversy.
[e] A further suspicious element is that whereas
the defendant was able to produce the original of the first two
double-sided
pages of the notes (covering the period 9 March to 20
October) and of the double-sided page of version B, all written on
his thin
consultation note paper, he was not able to produce the
original of version A, stating that it had been mislaid by one or
other
of his secretaries. The importance of this is that he claimed
that version A was produced by him on thicker paper to improve the

fax quality. He could have proved this by producing the original of
version A. But if the original of version A was, like the original
of
version B, written on his usual thin paper his explanation would have
been exposed as undoubtedly untrue.
[f] I also find it most implausible that in a
rewritten version prepared for his attorney he would, when initially
rewriting
it, mistakenly have omitted what was, in context, the most
crucial element of the note for 3 November, namely ‘+ T/L’.
[g] There was also inconsistency in the defendant’s
testimony as to who had the idea of rewriting the note. He initially

testified that the suggestion was his secretary’s [13/1212] yet
later he asserted that he was the one who came up with the
idea
[14/1361]. (He did not call his secretaries as witnesses.)
[h] I am not particularly impressed by the argument on
behalf of the defendant that his innocent explanation is established
by the
fact that both versions of the notes were discovered. If the
defendant’s attorney received both versions, he would have been

under a professional duty to include both of them in the discovery
affidavit prepared for the defendant. The latter may not have

appreciated that this would happen when he faxed the one version and
then the other to his attorney.
For these reasons I consider that Mr Bhoopchand’s
submission must be accepted that the authentic contemporaneous
version
of the note for 3 November is version A; that it ended with
the text ‘For C/S mane’; and that the insertion ‘+ T/L’

and the concluding paragraph of the note for that date were, like
the notes for 4 and 8 November, written after the defendant
knew
there was an issue about the performance of the sterilisation. In
particular, I think it probable that after the controversy
came to
light he inserted ‘+ T/L’ into his original
consultation note (version A) and that a copy of this version
was
probably sent to his attorney; but that when he later realised that
the production of the original would reveal the insertion
even more
obviously than the copy, he rewrote the note as version B.
This conclusion naturally reflects adversely on the
defendant’s credibility. But there are two possible
explanations for
his discreditable behaviour: that he wanted it to
appear that the plaintiff had orally consented to tubal ligation
when this
was not the case; or that although she did consent he was
embarrassed subsequently to find, when the problem arose, that his

notes did not reflect this. It is by no means unknown for a witness
who has truth on his side to attempt falsely to improve his
case.
On balance, the inherent probabilities discussed
earlier point to the second of these explanations. The referral
letter, which
was also contemporaneous and quite possibly written
before the consultation note, expressly mentions tubal ligation.
This letter
and the defendant’s conduct in performing the
sterilisation the next day are compatible with the second of the
explanations
for the alteration of the notes but not with the first.
Even if the probabilities were equipoised, the onus on
this question in so far as it bears on the defendant’s alleged
negligence
(as distinct from justification of
prima facie
wrongfulness) rested on the plaintiff. I thus proceed on the basis
that the plaintiff orally consented to the sterilisation on
3
November 2004.
The events surrounding the plaintiff’s admission
the next day were the subject of conflicting evidence by the
plaintiff
and Du Plessis. It is common cause that before the
plaintiff was transferred from the maternity ward to the labour ward
she had
decided not to have the sterilisation and that the consent
form had been altered to reflect this. The main point of controversy

is whether she originally signed the unamended consent form and only
later changed her mind or whether from the outset she refused
to
sign it in unamended form.
I do not find it inherently unlikely that overnight the
plaintiff changed her mind and arrived at the hospital intending not
to
have the sterilisation. Of course, her version was that she had
at no stage consented to the sterilisation and that there was no

change of mind. I have rejected that version, so a finding that she
changed her mind is inevitable. I think it less likely that
the
change of heart occurred within the relatively short space of time
which would, on Du Plessis’ version, have passed
between the
signing of the unamended form and the initialling of the changes.
The plaintiff was administratively admitted on
the 8
th
floor at 10h56 but there is no indication that the consent form was
presented to her at that stage. It was in the maternity ward
on the
11
th
floor that she dealt with Samsodien. By 11h30
Samsodien had recorded in the Nursing Progress Report that the
plaintiff had been
admitted to the maternity ward and that she and
her husband had ‘verbalised’ that she did not want a
tubal ligation.
The same note records certain medical observations
made in the maternity ward. The note was likely to have been made
after the
interactions concerning consent form.
Although a version was put to the plaintiff as to what
Samsodien would say, the defendant did not call her as a witness.
There
is thus nothing directly to refute the plaintiff’s
evidence concerning her initial discussion with Samsodien. The
latter’s
note in the Nursing Progress Report does not hint at
the signing of a an unamended consent form and a subsequent change
of mind.
Du Plessis claimed that when Samsodien came to her the
unamended form had already been signed and that Du Plessis went back
with
Samsodien to the plaintiff at which point the initialled
deletions were effected. The plaintiff denied that she signed
anything
in a second nurse’s presence. What tells against Du
Plessis’ version is that although she claimed that she made
crosses
at the places where the plaintiff was to initial and was
present when the initialling was done, the plaintiff as a fact only

initialled against one of the three crosses made by Du Plessis. If
Du Plessis was present, she would have made sure that the plaintiff

signed in all three places. There is the further point that Du
Plessis’ signature appears in full as the first witness
at the
foot of the form, and Samsodien’s as the second witness. This
indicates that there were no witness signatures on
the form when the
matter was first reported to Du Plessis. That being so, Du Plessis’
version requires one to find that
the plaintiff’s original
signing of the unamended form was never witnessed, and that witness
signatures were only added
when she changed her mind. That strikes
me as unlikely.
I would thus not disturb the trial judge’s
credibility finding in favour of the plaintiff on this aspect. On
the probabilities,
I consider that the plaintiff declined from the
outset to sign the unamended form and that the matter was reported
by Samsodien
to Du Plessis because of a conflict between the
plaintiff’s attitude and the referral letter from the
defendant. I should
add, though, that I doubt that it matters when
it comes to the wrongfulness of the performance of the sterilisation
(though an
acceptance of Du Plessis’ version would strengthen
the conclusion that the plaintiff gave her oral consent on the
previous
day). If the plaintiff originally signed the unamended
form, she clearly retracted that decision within a short space of
time,
well before her transfer to the labour ward. Both at common
law and in terms of the
Sterilisation Act a
patient may retract
consent. On any reckoning this occurred more than one and a half
hours before the defendant arrived at the
labour ward intending to
see the plaintiff pre-operatively and about two hours before he
began the sterilisation. No consent
as required by law existed at
that stage. But as I have said, my conclusion, insofar as it is
relevant, is that there never existed
a signed consent encompassing
sterilisation.
Du Plessis said that she told Samsodien to tell the
nurse in the labour ward (presumably Solomons) that the plaintiff
had changed
her mind. That seems likely, and the plaintiff in the
nature of things could not dispute it. There is no evidence as to
whether
Samsodien complied with Du Plessis’ instruction.
Du Plessis also said that she told the plaintiff to
tell the defendant about her change of mind. This again brings her
into conflict
with the plaintiff. A rejection of Du Plessis’
evidence regarding the events surrounding the signing of the consent
form
does not necessarily mean that her other evidence must be
rejected. She might have seen the plaintiff being taken to the
labour
ward and told her at that stage, because Du Plessis by then
would on any reckoning have known about the change. Nevertheless, I

do not think there is a sufficient basis to reject what I take to be
the trial judge’s implicit finding against Du Plessis
on this
aspect. Again, though, it would not affect my overall conclusion if
in truth Du Plessis gave the alleged advice to the
plaintiff.
As to what happened in and shortly before theatre, I
accept that the hospital staff did not notify the defendant that the
plaintiff
had refused or retracted written consent to sterilisation.
The defendant arrived too late to see the plaintiff pre-operatively

in the labour ward. Had he arrived a little earlier, the matter may
have come to light. I do not attach any particular significance
to
the defendant’s discussion with Solomons in the labour ward
shortly after 13h10. The defendant on his version was simply
getting
clarity regarding the identity of the patient who had been taken
into theatre – he was not asking Solomons whether
the
plaintiff had provided the necessary written consent to
sterilisation.
In theatre the defendant admittedly did not himself
check the plaintiff’s folder to see that her written consent
was in
place. He arrived in theatre before scrubbing, so he could
without risk of contamination have done so.
The plaintiff admittedly did not tell the defendant in
theatre that she no longer wanted the sterilisation. (This is, as I
have
previously remarked, on any reckoning a puzzling feature of the
case.)
There was no evidence contradicting the plaintiff’s
testimony as to what the junior theatre nurse said after looking at

her folder or as to Venter’s conduct in holding up the bottle
after completion of the sterilisation. I do not have reason
to
reject her evidence in these respects. Dr Whitehead, on the other
hand, denied speaking to the plaintiff as alleged. Although
the
trial judge said that Dr Whitehead seemed to distance himself from
anything to do with the matter, he did not specifically
find that Dr
Whitehead’ evidence was false. Having read the transcript, I
cannot say that there is a basis for rejecting
Dr Whitehead’s
evidence. In the event, though, the remarks and conduct attributed
by the plaintiff to the junior theatre
nurse, Venter and Dr
Whitehead are not of great significance to the outcome of this
appeal. At most they are relevant to show
that if someone had looked
at the plaintiff’s folder in theatre, he or she would have
noticed that the plaintiff had decided
not to have the
sterilisation. I think one can make that assumption even in the
absence of evidence that somebody did actually
look at the folder
and see the amended consent form.
What is undoubtedly important is whether the defendant,
as he testified, directed a query to Venter, at the end of the
caesarean
section, as to whether they were proceeding with the
sterilisation and whether she answered in the affirmative. The
plaintiff
said that she did not hear such a discussion but she
conceded that it may have occurred without her hearing it, and the
circumstances
of the operation make that a distinct possibility (the
defendant and Venter were probably shielded from the plaintiff’s
head by a screen, and the plaintiff had no particular reason to
follow what were probably quiet remarks passing between medical

personnel). If Venter knew the true facts, she would obviously not
have answered the defendant’s question in the affirmative.

However extraordinary her ignorance may seem, there are other
circumstances to suggest that she was not aware that the plaintiff

had rejected the sterilisation. Firstly, the defendant’s
evidence was that he used a special silk thread for performing
the
sterilisation and that this was laid out in readiness for him and
then handed to him with other necessary instruments when
performing
the sterilisation [13/1232-3]. Even if no question had been posed to
her, Venter would not have failed to intervene
if she knew the
defendant was about to sterilise a patient contrary to the latter’s
express wishes. There is the further
circumstance that upon
completion Venter showed the plaintiff the bottle containing the
excised portions of her fallopian tubes,
presumably because Venter
thought the plaintiff would or might be interested to see the
evidence of the procedure. This would
have been be an implausibly
callous act if Venter believed the plaintiff had not consented to
the procedure.
The defendant’s evidence was that his practice
was to rely on the scrub sister to check that the necessary written
consent
was in place. There was evidence from Dr Van Helsdingen, the
defendant’s very experienced expert witness, that this was
also his practice and that he did not know of any surgeons who
themselves checked the written consent form. It thus seems not

unlikely that the defendant would have obtained brief confirmation
from the scrub sister.
Venter was deceased by the time of the trial so could
not be called to confirm or refute the defendant’s evidence.
Dr Whitehead
could not recall hearing the exchange but said that his
tasks would not have required him to attend to the discussion
between
the defendant and Venter. Possibly the evidence of the
junior theatre nurse and Drs Kriel and Zieff could have cast light
on
the matter. On the assumption that such witnesses could more
plausibly have been called by the defendant than the plaintiff,

there is nevertheless insufficient reason to reject the defendant’s
evidence, despite the fact that in my opinion his credibility
on the
question of his consultation notes was badly tarnished. His
consultation note against the date 8 November 2004 records
his query
to the scrub sister. That note, if not written on 8 November 2004,
was probably written fairly shortly afterwards.
It seems that there
was a preliminary investigation at the hospital on Monday 8 November
2004. It is doubtful that the defendant
would have recorded in his
note a version that he knew would be contradicted by the theatre
nursing staff or his professional
colleagues. It is also not
irrelevant that the defendant repeated his version in his letter to
the plaintiff’s then attorneys
on 4 June 2007. Venter died
more than two years later, and the defendant would thus have written
his letter in the belief that
Venter would be able to contradict his
statement if it were untrue (and she would have an interest in doing
so, since it reflected
negatively on her and the hospital).
The trial judge did not make a specific factual finding
as to whether the defendant directed the alleged query to Venter. In
my
view, and insofar as it bears on the question of negligence, I do
not think the plaintiff established on a balance of probability
that
the defendant did
not
make the query or receive an
affirmative answer.
The expert evidence established that a scrub sister in
Venter’s position should in accordance with usual practice
have checked
the plaintiff’s folder on the latter’s
arrival in theatre to confirm that the written consent was in place.
Had she
done so, the question the defendant asked her would have
been sufficient to attract an answer that the plaintiff had decided

not to have the sterilisation, and the defendant would then not have
performed it. One is driven to conclude that Venter did
not
check the plaintiff’s folder. If (as the defendant said) the
theatre slot was booked on 3 November 2004 and the booking
specified
that the patient was being admitted for a caesarean section and
tubal ligation, and if Samsodien or the nursing staff
in the labour
ward failed to communicate the plaintiff’s changed decision to
the theatre staff, Venter may have assumed
that everything was
proceeding as normal without bothering to look at the folder.
Venter was no longer alive to speak in her own defence.
The hospital, to judge by what we were told by counsel, was
defensive
of its own position during the parties’ trial
preparations. The hospital and its advisers were presumably aware of
the
version the defendant intended to advance. Their employee, Du
Plessis, was called as a witness by the defendant. The hospital
nevertheless seems not to have volunteered any evidence to the
plaintiff to refute the defendant’s version. I think one
must
conclude, at least for purposes of this case, that one or more of
the hospital’s nurses were negligent in failing
to ensure that
the plaintiff’s decision was not brought to the defendant’s
attention. That was the view of the plaintiff’
expert, Dr
Rosemann, in his first report and also the view of Dr Van
Helsdingen.
The defendant’s liability
On the basis of these factual findings, is the
defendant liable to the plaintiff for any damages suffered in
consequence of the
performance of the sterilisation? I have already
expressed the view that a lawful consent to sterilisation must be in
writing
as required by the
Sterilisation Act. No such
written
consent was obtained in this case. The
prima facie
conclusion
that the performance of the sterilisation was wrongful was not
negatived by consent as required by law.
As to causation, this is not a case where, at the time
the operation was performed, the patient was intending to undergo a
sterilisation
after having given fully informed oral consent, with
the absence of written consent a mere technical oversight. The
plaintiff
did not by that time wish to be sterilised and had refused
to sign the required written consent. I thus consider that the
wrongful
sterilisation caused whatever damages she suffered.
This leaves negligence. The evidence did not establish
that it was impossible or even practically difficult for a
gynaecological
surgeon to take a written consent in his or her rooms
(whether on the day of the operation or at an earlier consultation)
or
to check pre-operatively that the written consent was in place
(either in the ward or on arrival in theatre). Indeed, there was

evidence that since 2006, and quite possibly because of what
happened in this very case, the hospital group of which the CMBH

forms part has required surgeons using its facilities to take their
own written consents. Dr van Helsdingen said that his practice
was
to see his patient pre-operatively in the ward (though such visits
were not for the specific purpose of checking consent).
In this very
case the defendant intended to see the plaintiff in the ward but
arrived there too late. Nevertheless, the fact
that the defendant
could have personally checked whether a written consent was in place
does not mean that he is liable if the
obtaining of written consent
was properly a function of the hospital staff and if he is not
liable for their negligence. If he
could, without personal
responsibility, leave it to the hospital staff to take the written
consent and to tell him if the patient
refused to sign the consent,
it might suffice for him briefly to have confirmed with the scrub
sister that they were still proceeding
with the sterilisation, since
her affirmative answer would bring him under the impression that the
required written consent was
in place. Indeed, even a query to the
scrub sister may not have been necessary if he could properly rely
on the hospital staff
to bring any problem with written consent to
his attention.
The expert evidence as to a gynaecological surgeon’s
duties regarding the obtaining of written consent was not entirely

satisfactory. As I have said, the defendant’s expert, Dr van
Helsdingen, testified that it has never been his practice to
take or
personally check written consents and he was not aware of any of his
colleagues who did so. The taking of a written consent
in his view
was a hospital function. If a patient changed her mind after giving
the gynaecologist informed oral consent, the
hospital staff, in
particular the scrub sister, should bring this to the
gynaecologist’s attention.
Dr van Helsdingen’s evidence as to his own
practice and as to the practice of his fellow professionals is not
altogether
consistent with a work entitled
Basic Principles of
Gynaecological and Obstetrical Surgery
which is used
inter
alia
in the teaching of medical students in South Africa and to
which Dr van Helsdingen himself contributed a chapter. In that
chapter
there is a step-by-step summary of the procedures to be
followed in the ward on the day of an operation. Step 6 is ‘Check

the consent form’ [record 3/336]. Dr van Helsdingen’s
attempts to explain this part of the book in cross-examination
[at
11/1047-66] were unsatisfactory, and he was somewhat evasive and
argumentative. For example, he said the book ‘carries
no legal
power’ and was ‘merely a manual of suggestions’.
He accepted that the book nevertheless represented
good practice. He
also said it was good practice for the gynaecologist to visit the
patient in the ward prior to the operation
and that there would then
be opportunity to look at the patient’s folder. But when
pressed with the passage in the book,
he said it was ‘written
in abbreviation’ and denied that it contradicted the practice
he followed. He said that his
cross-examiner did not know ‘how
these things work’. He insisted that it was not practical for
the surgeon to obtain
the written consent ‘as he stands next
to the patient’, that there may be emergencies and that it
depends on considerations
of timing. This was all beside the point.
It was not being suggested to him that the gynaecologist should take
a written consent
while standing next to the patient in theatre or
even that the gynaecologist should take the written consent himself
nor was
he being asked about the special case of an emergency –
what was being put to him was that, as the book apparently
indicated,
the surgeon should check the consent form.
Nevertheless, Dr Van Helsdingen’s evidence as to
the actual practice of most gynaecological surgeons was not disputed
by
Dr Rosemann. The latter said that he considered that the surgeon
should check the consent form and that he himself did so, but
he
could not speak as to the practice of others. Widespread practice
might thus differ from step 6 in the book. Given the summarised

style of the six steps listed on the relevant page, it would not be
right to place too much weight on it as evidence of appropriate

professional standards. Although the book is directed at
gynaecological and obstetrical surgeons, step 6 could perhaps mean
that somebody must check the consent form, not necessarily the
surgeon.
It is also fair to point out that Dr Rosemann’s
evidence was not without blemish on this aspect. He testified that
given
the importance of a patient’s choice regarding
sterilisation it was imperative for the surgeon to inspect the
consent form,
and Dr Rosemann said that he himself did so. He also
said that the HPCSA guidelines in booklet 15 [record 1/75-6] so
required.
Although three reports and an addendum in respect of Dr
Rosemann’s evidence were filed by the plaintiff, these views
were
not recorded in any of the reports or in the addendum. Dr
Rosemann’s views as expressed in oral evidence were,
furthermore,
inconsistent with the conclusion he reached in his
first report. At the time of writing his first report he assumed
that the
facts were as the defendant alleged – remarkably, he
appears not as yet to have been given the plaintiff’s version.

On the basis of the facts he assumed, Dr Rosemann said in his first
report that the negligence lay with the hospital staff and
that the
defendant could not be held liable. If it was his consistent and
firm opinion that the surgeon should always personally
check the
consent form, one would not have expected him – even on the
defendant’s version of the facts – to
exonerate the
defendant in the first report. Initially in cross-examination Dr
Rosemann reverted to the first report’s
conclusion by
conceding that if the facts were as the defendant alleged he could
not be held responsible; but later in cross-examination,
after an
overnight adjournment, he said that he should have included
reference in his first report to the surgeon’s duty
of
inspection and that this omission was attributable to the rush in
which his first report was prepared. It was put to him with
some
justification that this was an afterthought. Under further lengthy
questioning, some of it by the trial judge which in turn
prompted
renewed cross-examination, Dr Rosemann see-sawed between opposing
opinions as to whether – if the defendant’s
version of
the facts were correct – the defendant could be faulted. The
last of the views offered by Dr Rosemann was a
concession that it
was sufficient for the defendant to have asked the scrub sister
about consent [10/980].
Dr Rosemann’s reliance on the HPCSA’s
booklet 15 was also somewhat argumentative and misplaced. Para 3 of
the booklet
does not deal specifically with the written consent
required for sterilisation but with informed consent in general. The
paragraph
refers to the need to obtain informed consent and states
that the explanations to the patient and the obtaining of the
consent
can be designated by the doctor to a suitably qualified
person but that the doctor will remain responsible for ensuring,
before
he starts any treatment, that the patient has been given
sufficient time and information to make an informed decision and has
given consent. Here the defendant himself explained the position to
the plaintiff and obtained her oral consent on 3 November
2004. The
question in the present case concerns a change of mind and the legal
requirement for written consent. That is a question
which the
booklet appears to me not to address.
I may add, without attaching too much weight to it,
that the regulations promulgated under the
Sterilisation Act
specify
, as the prescribed consent form for sterilisation, the
standard consent form for use in the health facility in question. It
may
be questioned whether this is altogether apt for the case where
the surgeon is not a doctor employed by the hospital but
nevertheless
those responsible for framing the legal requirements
for a lawful sterilisation consent appear to have taken for granted
that
the written component of the consent requirement would be
attended to by the hospital where the surgery was to be performed.

They presumably did so because that is how thing in general are
done.
I thus consider that the defendant’s conduct on
the day of the operation did not depart from the practice which
prevailed
among most professionals in his field as at November 2004
and that his profession would regard his behaviour as acceptable and

reasonable. This does not in itself mean he was not negligent –
that is a question of law on which the views of experts
will be
relevant but not necessarily decisive (see, eg,
Michael &
Another v Linksfield Park Clinic (Pty) Ltd & Another
2001
(3) SA 1188
(SCA) paras 36-40). Particularly on matters concerning
consent as distinct from medical science, the views of the
profession,
even if unanimous, might properly be rejected by the
court (cf
Castell
at 421D). Nevertheless, the onus was on the
plaintiff to prove that the defendant was negligent. Given the
expert evidence summarised
above, I am not satisfied that the
defendant’s conduct, which appears to have been in accordance
with the standards of
his profession, was in law negligent. He had
performed the most significant component of obtaining informed
consent by his oral
explanations to the plaintiff the preceding day.
The completion of that consent by its commitment to writing was, and
would generally
be, a mechanical exercise which could be left to
others. There was nothing to alert the defendant to the fact that
anything had
changed or that the hospital staff had not done their
job properly. Venter was known to him as an experienced theatre
nurse.
She had prepared the table for the performance not only of a
caesarean section but also a tubal ligation. The defendant went

further and checked with Venter before doing the tubal ligation that
the sterilisation was still going ahead – a query which
could
have had no other purpose than to make sure there had been no change
from the plaintiff’s side. If he asked the question
in a
perfunctory manner, that was only because he had no reason to think
the plaintiff had undergone a change of heart. The plaintiff
said
nothing to him along those lines in theatre.
It is clear that the hospital staff were negligent in
not communicating to the defendant that the plaintiff no longer
wanted the
sterilisation and had refused to sign the consent
required for sterilisation. However, the plaintiff did not plead
that the defendant
was vicariously liable for the hospital staff’s
negligence. The trial judge does not seem to have been asked to
consider
the case along those lines; nor were we. There is no doubt
that vicarious liability must be pleaded. In the present case the

plaintiff’s pleaded case was that the defendant himself had
been negligent. A cause of action based on vicarious liability
would
have required the plaintiff to allege the negligence of one or more
of the hospital staff; to allege a relationship between
himself and
the hospital or its staff which in law could give rise to vicarious
liability; and to allege that their negligent
conduct was performed
within the scope or course of their relationship with or authority
from him (and cf Harms
Amler’s Precedents of Pleadings
7t
Ed at 390;
Stadsraad van Pretoria v Pretoria Pools
1990 (1)
SA 1005
(T) at 1007H). It is possible that if vicarious liability
had been pleaded the defendant may have wished to adduce additional
evidence or that he would have taken steps to join the hospital as a
third party. Furthermore, the legal questions that would
arise in
relation to vicarious liable in this setting are by no means
straightforward, since one is not dealing with a classic

relationship of vicarious liability established by existing
authority.
Conclusion
I thus consider that the defendant should not have been
held liable in the court
a quo
. This conclusion makes it
unnecessary to consider the question of damages. I would uphold the
appeal with costs and substitute
for the trial judge’s order
an order dismissing the plaintiff’s action with costs, such
costs to include the reasonable
qualifying expenses of Dr van
Helsdingen.
BLIGNAULT J
I concur in the judgment of Rogers J.
It would not be fair to conclude this matter without
reverting to the trial judge’s very critical remarks about the
defendant,
in which
inter alia
he branded the defendant an
‘outright liar’. On appeal we have found that in one
respect the defendant acted discreditably
– that is in
relation to the two versions of his consultation notes. In the main,
though, we have accepted his evidence
and it is on the basis of such
evidence that his appeal succeeds. To describe him as an ‘outright
liar’ is obviously
not in keeping with the findings in this
court’s judgment. I venture to suggest that in civil matters,
where factual disputes
often have to be resolved with reference to
inherent probabilities, caution should be shown in expressing
credibility findings
in such strong terms. The fact that on balance
one factual version is preferred over another does not normally
justify leaving
the losing party with the stigma of having been
labelled by a court as an outright liar.
The appeal is allowed with costs. The order of the
court
a quo
is set aside and replaced with an order as
follows: ‘The plaintiff’s action is dismissed with
costs, such costs to
include the reasonable qualifying and
attendance costs of the defendant’s expert Dr van
Helsdingen.’
SALDHANA J:
I concur in the judgments of Rogers J and Blignault J.
______________________
BLIGNAULT J
______________________
SALDHANA J
______________________
ROGERS J
APPEARANCES
For Appellant: Mr MA Albertus SC
Instructed by:
Albertus Attorneys
148 Lansdowne Road
Cape Town
For Respondent: Mr Ajay Bhoopchand
Instructed by:
De Klerk & Van Gend Inc
Cape Town
1
By
way of
s 4
of Act 3 of 2005 para (c) of s 4 was amended
with effect from 22 June 2005 to read: '
understood
and
signed the prescribed consent
form'.