1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 55938/2018
In the matter between:
OLIVIER, JOLIEN ESTELLE Plaintiff/Applicant
and
MEC FOR HEALTH, GAUTENG PROVINCE Defendant/Respondent
JUDGMENT IN RE: APPLICATION TO REOPEN CASE
DOMINGO, AJ
Introduction
[1] This application has been brought by the plaintiff to reopen the plaintif f’s case.
The merits of the case are not required to be assessed and will therefore not be
addressed in this judgment.
[2] The background to this case is that the plaintiff had instituted action against the
defendant for damages which she alleged arose from the medical negligence of
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
24 August 2026 ____
DATE SIGNATURE
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the employees of the defendant, acting in the course and scope of their
employment, during and following a total laparoscopic hysterectomy (TLH)
procedure which was performed on 30 May 2016 at the Kalafong Provincial
Hospital. The trial on the merits commenced on 24 November 2025. The plaintiff
closed her case on 27 November 2025. The defendant’s case ran from 28
November 2025 to 3 December 2025, stood down on 4 December 2025 and ran
again on 5 December 2025 and was then postponed to 10 December 2025.
[3] The plaintiff during the running of the defendant’s case, placed on record for the
first time that she would apply to re- open her case at the end of the day of the
expert witness, Professor Mutambirwa’s evidence in chief on 3 December 2025.
The plaintiff raised the issue of applying to re-open her case, on record on 5 and
10 December 2025. Thus, providing warning to the defendant that the application
to re-open would take place.
Relief Sought by Plaintiff
[4] The relief sought by the plaintiff is to be granted the leave to reopen her case
and to call and/or recall the following expert witnesses:
4.1 Dr LR Murray, specialist obstetrician and gynaecologist.
4.2 Dr MR Lebos, specialist surgeon.
4.3 Dr LJE Coetzee, specialist urologist.
Overview of Plaintiff’s submissions and arguments
[5] It is submitted by the plaintiff that the basic principle in our law, in medical
negligence cases and other delictual matters, is that if the parties are going to
employ the use of experts, that their reports be served prior to the trial, with a
summary of their opinion and reasons, and that opposing experts meet to
prepare joint minutes, so that issues can be defined. It is averred by the plaintiff
that this is the purpose of Rule 36(9)(a) and (b) of the Uniform Rules of Court. It
is further submitted by the plaintiff that opinion evidence is hearsay, and not
admissible. Expert opinion evidence is the exception to that rule, provided that
admissible. Expert opinion evidence is the exception to that rule, provided that
the expert qualifies him or herself by providing a report which sets out his or her
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reasons for that opinion, in advance of a trial. The other party/parties are then at
liberty to also obtain expert evidence and to file reports accordingly. It is averred
by the plaintiff to do otherwise renders any evidence led inadmissible.
[6] It is further submitted by the plaintiff, that it is therefore trite that any expert who
qualifies himself by filing a report, must therefore testify in terms of the opinion
that he has submitted, and if he wishes to amend his opinion for any reason, to
also do so prior to the trial, once again giving a summary of his opinion and
reasons; I am in agreement with the plaintiff on these points.
[7] The plaintiff submitted that in this case, two of the defendant’s experts (Dr
Malebane and Prof Mutambirwa) changed their minds, ostensibly when giving
evidence about their previously expressed opinions, either in their reports or in
their joint minutes. It is on this ground that the plaintiff submitted that she is
entitled to reopen her case, to lead evidence to address what the plaintiff regards
as essentially new or unheralded or not foreshadowed evidence in their reports
or joint minutes. The new , unheralded or not foreshadowed evidence it is
submitted by the plaintiff would be led in a reopened trial that would be viva voce
evidence, which the defendant would then be entitled to cross-examine, as in the
normal course of a trial.
[8] The plaintiff respectfully submitted the following in arguing for the reopening of
her case:
8.1 The plaintiff is presently in a severely prejudiced position, occasioned by
the change of opinion by the defendant’s experts after the closure of the
plaintiff’s case, and the defendant’s failure to address any changes of
opinion prior to the plaintiff’s closure of her case. There were no new
expert reports providing details of the changed opinion, nor were
relevant propositions put to the plaintiff’s expert s to enable them to
address the changed opinions. The events have therefore effectively
address the changed opinions. The events have therefore effectively
violated the audi alteram partem rule.
8.2 There is presently no prejudice to the defendant, nor will the defendant
be prejudiced if the plaintiff’s case is re -opened. The defendant is at
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liberty to cross-examine the evidence in a reopened case. The defendant
would be entitled to recall their own witnesses, if necessary.
8.3 If the plaintiff is not afforded an opportunity to reopen her case, an
argument is available to the plaintiff to argue that the evidence of Dr
Malebane and Prof Mutambirwa, wheresoever their evidence deviates
from their reports and/or joint minutes is inadmissible hearsay for non-
compliance with Rule 36(9) of the Uniform Rules of Court. This is to the
detriment of the defendant, who opposes this application.
8.4 This honourable court is prejudiced, because the court will be required
to make a decision on evidence that has not been properly placed before
the court.
8.5 The circumstances which prevail, are also likely to plague a future court.
If the matter were to go on appeal without the plaintiff having been
afforded the opportunity to deal with the changed opinions of the
defendant’s expert evidence in rebuttal, then there is a possibility that a
Higher Court may have to refer the matter back for evidence,
alternatively, the issues will represent the same obstacles facing this
honourable court.
8.6 It is in the interest of justice, that the plaintiff be allowed to re-open her
case, so that there can be full ventilation of all issues. The evidence that
will be lead and cross-examined in a reopened case, does not prejudice
the defendant at all, as it is not tantamount to a finding, but is merely
evidence to be considered with the evidence lead by the defendant, by
the court, for the purposes of arriving at a judgment.
Overview of Defendant’s submissions and arguments
[9] The defendant notes that the basis for the plaintiff’s application was originally
introduced by the plaintiff’s counsel at the end of Prof Mutambirwa’s testimony,
the defendant’s last witness as follows. It is submitted by the defendant that the
plaintiff’s counsel adopted the position of forewarning the court that the plaintiff
plaintiff’s counsel adopted the position of forewarning the court that the plaintiff
may apply to re- open her case , particularly following the court’s questioning of
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Prof Mutambirwa regarding the relationship between an elevated CRP (C-
reactive protein) and a temperature within normal range. It is averred by the
defendant that the plaintiff now seeks, in substance, to reopen and restart her
case to revisit issues that have already been canvassed in order to repeat the
evidence and to cure the deficiencies in her case.
[10] It is further submitted by the defendant that the plaintiff also seeks to introduce
and address issues that she has not pleaded. For example, the plaintiff’s pleaded
case on sepsis is confined to wound sepsis. It is averred by the plaintiff that this
is evident from subparagraphs 4.11.2, 4.11.3 and 6.4 of the particulars of claim
as well as admissions sought by the plaintiff at subparagraph 13.1.4 during the
last pre-trail conference held between the parties on 20 November 2025. The
defendant further averred that regarding septicaemia, this being an infection of
the bloodstream or what is termed “toxic” in the original urologists’ joint minutes,
this was neither pleaded nor does it appear from the medical records. It is
submitted by the plaintiff that it therefore unclear on what basis the plaintiff
persists in advancing the contention that she suffered from septicaemia.
[11] It was further submitted by the defendant that civil litigation is adversarial in
character and that the conduct of the adversaries is regulated by procedural
rules. The conduct and prosecution of a party’s case, however, is premised on
autonomy. A party is free to decide how it wishes to prosecute its case subject
only to the overriding legal and ethical obligations of which mediate such
autonomy. A party is bound to by the choices it makes or those which are made
on its behalf in the conduct of the litigation.
[12] It was submitted and argued by the defendant’s counsel that the plaintiff had
failed to make out a case for the relief sought or the court to exercise its discretion
in her favour for reasons amongst others that:
in her favour for reasons amongst others that:
12.1 The plaintiff had failed to demonstrate the relevance and materiality of
the new opinions sought to be adduced.
12.2 In her replying affidavit, the plaintiff had not factual ly addressed the
prejudice identified by the defendant in the answering affidavit, and her
heads of argument merely play lip service to the issue. It is averred by
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the plaintiff that the suggestion in the plaintiff’s heads of argument that
the application to reopen her case is, in some way, intended to assist the
defendant, is with respect, entirely misconceived and rather improper.
12.3 The issue of sepsis had, apart from not being pleaded, been fully
ventilated by all relevant experts through their evidence. What remains
is the responsibility of the court to weigh that evidence and apply the
relevant legal principles to make its final determination.
12.4 Equally, the issue relating to the elevated CRP (C-reactive protein) was
dealt with extensively by the experts, notably, Dr Lebos.
12.5 It is averred by the defendant that it is therefore not necessary nor
appropriate for the identified issues to be reintroduced at this stage of
the proceedings, as the so- called further expert evidence would in
substance amount to argument. Those matters properly fall within the
domain of counsel’s submissions and should be dealt with during
argument rather than through further evidentiary processes. It is also
unnecessary to adduce further evidence on the issues identified in the
application as that would amount to the experts usurping the role of the
court.
Legal Principles
[13] It is trite in our law that the discretion to grant or refuse an application to reopen
a case lies within the court. I agree with the defendant’s submission that such
discretion must be exercised judicially upon a consideration of all relevant facts.
In other words, the plaintiff cannot claim an automatic entitlement to the
reopening of her case because the proverbial “shoe is pinching.” Counsel for the
defendant directed the court to the case of Mk wanazi v van der Merwe and
Another
1 where the court held in exercising the discretion to reopen a case, the
court must be satisfied that sufficient grounds exist to justify a departure from the
ordinary course of proceedings, taking into account the interests of justice, the
ordinary course of proceedings, taking into account the interests of justice, the
need for finality in litigation, the potential prejudice to the defendant, explanation
1 1970 (1) SA 609 (A) at 616B-E.
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why the defendant omitted the evidence now sought to be adduced, the
materiality and relevance of the evidence sought to be adduced and the stage of
the proceedings. Thus, “[a]n application to reopen a closed case is not simply
there for the asking. It must be properly and thoroughly explained and
motivated.”2
[14] In terms of Rule 36(9)(a) of the Uniform Rules of Court, any party wishing to call
expert witnesses must give formal notice of the name and qualifications of the
expert and in terms of Rule 36(9)(b) must then provide a report or summary of
the expert’s evidence, setting out the expert’s opinion and reasons thereto. The
Practice Directive 1/2024 of this Court, provides at paragraph 8 as follows:
“8 REQUIREMENTS FOR EXPERT REPORT
8.1 Expert reports must be drafted in the format designated for lucidity,
brevity, and convenient cross -referencing. To this end it must be in
numbered paragraphs. When referring to other expert reports, refer to
the numbered paragraphs therein.
8.2 Where more than one expert has reported on a given aspect, joint
minutes of experts must identify precisely what is agreed and what is
not agreed, with reasons stated why an agreement could not be
achieved, especially as to whether their disagreement relates to a fact
clinically observed or an interpretation of the facts.
8.3 The attorney responsible for the reports’ procurement is accountable
for compliance in this respect and failure to adhere hereto may imperil
hearing date allocation.”
[15] I am in agreement with the plaintiff, where the plaintiff directed the court that the
procedure that must be followed when a party or an expert wishes to alter,
repudiate or revise the opinion, has been described in the Supreme Court of
Appeal judgment, Bee v The Road Accident Fund3 wherein it was held that:
2 A.S v Member of the Executive Council for the Department of Health KwaZulu Natal
[7630/2013P] [2025] ZAKZPHC 115 (14 November 2025) at 11.
3 2018 (4) SA 396 (SCA) at paras 64 and 68.
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“…where the parties engage experts who investigate the facts, and where those
experts meet and agree upon those facts, a litigant may not repudiate the agreement
unless it does so clearly, and at the very latest, at the outset of the trial. In the absence
of a timeous repudiation, the facts agreed by the experts enjoy the same status as
facts which are common cause on the pleadings, or facts agreed in the pre -trial
conference. Where two or more experts reach agreement on a matter of opinion, the
litigants are likewise not at liberty to repudiate the agreement….”
“There may be cases where the expert rather than the litigant wishes to depart
from what he previously agreed. The same rules of fair play apply. The expert
should notify the attorney through whom he or she was engaged, and due
warning should be given to the other side. In such a case there will be further
procedural requirements, namely the furnishing of a supplementary report by
the expert whose views have changed.” [Emphasis my own].
[16] It is apt to be reminded of the duty of an expert to the court as pointed out by the
defendant. The role of the expert witness was confirmed in Schneider N.O and
Others v Aspeling and Another4 where the court held that:
“In Zeffert and Paizes -The South African Law of Evidence (2ed), at 330 the learned
authors, citing an English judgment of National Justice Compania Navierasa v Prudential
Assurance Co Limited 1993 (2) Lloyd’s Reports 68 at 81, set out the duties of an expert
witness, thus:
1. Expert evidence presented to the Court should be, and
should be seen to be, the independent product of the
expert uninfluenced as to form or content by the
exigencies of litigation;
2. An expert witness should provide independent assistance
to the Court by way of objective, unbiased opinion in
relation to matters within his expertise. An expert witness
should never assume the role of an advocate;
3. An expert witness should state the facts or assumptions
3. An expert witness should state the facts or assumptions
upon which his opinion is based. He should not omit to
4 2010 (5) SA 203 (WCC) at 211 -212 and 341 and 342.
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consider material facts which could detract from his
concluded opinion;
4. An expert witness should make it clear when a particular
question or issue falls outside his expertise;
5. If an expert opinion is not properly researched because he
considers that insufficient data is available, then this must
be stated with an indication that the opinion is not more
than a provisional one. In cases where an expert witness
who has prepared a report could not assert that that the
report contained the truth, the whole truth and nothing but
the truth without some qualification, that qualification
should be stated in the report.
In short, an expert comes to court to give the court the benefit of his or her
expertise. Agreed, an expert is called by a particular party, presumably because
the conclusion of the expert, using his or her expertise, is in favour of the line of
argument of the particular party. But that does not absolve the expert from
providing the court with as objective and unbiased opinion, based on his or her
expertise, as is possible. An expert is not a hired gun who dispenses his or
her expertise for the purposes of a particular case. An expert does not
assume the role of an advocate, nor give evidence which goes beyond the
logic which is dictated by the scientific knowledge which that expert claims
to possess.” [Emphasis my own].
[17] Having regard to the role of the expert witness, it is important to emphasise that
the credibility, veracity, merits and the weight the court will afford to the expert
witnesses’ testimony do not fall to be determined in this application. The court
will assess and weigh the expert evidence, apply the relevant legal principles ,
and make its final determination in the main cause of action, where both counsel
will have the opportunity to present their respective arguments . However, in
deciding this application it is important to be mindful of the role and purpose of
an expert witness.
Discussion
an expert witness.
Discussion
a) Recalling Dr Murray (specialist obstetrician and gynaecologist)
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[18] It was averred by the plaintiff that the evidence of Prof Snyman (the defendant’s
witness) was not put to Dr Murray. Prof Snyman’s evidence was that whilst he
would not have suggested the TLH for polyps, nor would he suggest surgery for
LOSIL( low-grade squamous intraepithelial lesion), nor was there an indication
that the plaintiff had adenomyosis, his opinion was that the compounding effect
of all three conditions, was what prompted him to say that the TLH was indicated.
[19] The plaintiff submitted that it was never put to Dr Murray that Prof Syman would
testify that this combination of circumstances was what prompted him to be of
the view that the TLH was indicated. Thus, it was submitted by the plaintiff that it
would therefore be fair to the plaintiff for Dr Murray to be given a chance to
consider this evidence, to provide her views on it, so this honourable court can
weigh the evidence and make a finding.
[20] I am in agreement with the defendant that the claim that Dr Murray was no t
afforded the opportunity to comment on Prof Snyman’s evidence is entirely
inaccurate. The defendant attached an extract of Dr Murray’s cross-examination
on the relevant issues regarding the facts from Prof Snyman, which were put to
Dr Murray, and she provided her opinion thereon.
[21] For example, regarding the compounding effect of the conditions of the plaintiff
prompting Prof Snyman to say that TLH was indicated the following exchange
took place during the cross-examination of Dr Murray:
Ms Manaka: They did several other tests which shows some concerns, if I may put
it that way, some of those concerns which would viewed individually,
not necessarily indicate a TLH.
Dr Murray: Yes
Ms Manaka: And my instructions were that they had to look at consents
[sic][concerns] that were raised and that they were seeing
collectively, particularly in view of their attempt to give medication
that was not even helping including painkillers.
that was not even helping including painkillers.
Dr Murray: I cannot comment on how they came to that decision.
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[22] Having regard to the record of proceedings, it is my view that Dr Murray was
given the opportunity to comment on Prof Snyman’s evidence.
[23] Dr Malebane, specialist obstetrician and gynaecologis t (expert witness for the
defendant) in two of his reports concluded that TLH was not indicated. However,
it was submitted by the plaintiff that when Dr Malebane testified, he changed his
opinion by saying that he thought that the TLH was indicated because he was
persuaded by Prof Snyman’s testimony. Furthermore, he changed his mind by
saying that the TLH was indicated because of Prof Snyman’s seniority and super
speciality. Furthermore, Dr Malebane said that his own reports were “theoretical.”
The plaintiff therefore submitted that Dr Murray be given the opportunity to
respond on this evidence by Dr Malebane and that the plaintiff’s case should be
reopened to hear her opinion on this issue.
[24] The defendant in turn submitted that Dr Malebane did not amend or repudiate
his original opinions. It was averred by the defendant that as with Dr Murray , Dr
Malebane simply answered questions put to him based on new facts that were
not previously available to him when he drafted his opinion and joint minutes. It
is also submitted by the defendant that the circumstances of this case differ
materially from those in Bee
5 and that the plaintiff’s reliance on that authority is
ill-conceived.
[25] Having regard to the record, Dr Malebane acknowledges that he “ changed his
mind” after hearing the evidence of Prof Snyman. However, he at the same time
testified that his reports are now to be regarded as theoretical. It is my view that
the application of Bee6 is not ill-conceived in regard to Dr Malebane changing his
mind. There was no foreshadowing by the defendant that Dr Malebane, who was
the defendant’s third witness, after he had heard Prof Snyman’s evidence, who
was the defendant’s first witness, that he would change his mind to say that the
was the defendant’s first witness, that he would change his mind to say that the
TLH was indicated. Having said this, the circumstance of this case is different to
Bee7 as the reports of Dr Malebane still stand as his theoretical opinions in which
he draws the conclusion that TLH was not indicated.
5 See supra note 3 above.
6 Supra.
7 Supra.
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[26] Taking all of the above into account, it is my view that both Dr Murray and Dr
Malebane had and were given the opportunity to engage with the Prof Snyman’s
evidence. The only difference is that the Dr Murray, unlike Dr Malebane did not
hear the testimony of Prof Snyman. I am in agreement therefore, with the
defendant’s submission that the evaluation of Dr Malebane’s evidence falls within
the exclusive purview of the Court. It is not for Dr Murray to evaluate Dr
Malebane’s opinion of Prof Snyman’s evidence, that would amount to usurping
the court’s function. I am of the view that further evidentiary evidence through the
recalling of Dr Murray is not necessary at this stage of the proceedings ; all the
matters regarding this aspect of the case should be dealt with during counsels’
argument. Thus, the plaintiff cannot make the argument that her section 34
constitutional right
8 has been infringed or that she was denied the right to be
heard. In the premises , I am not persuaded that the recalling of Dr Murray is
warranted. The application to recall Dr Murray is accordingly refused.
b) Calling Dr Coetzee (specialist urologist)
[27] The plaintiff seeks to call Dr Coetzee to testify on the following issues:
27.1 The circumstance which led to the signing of the two joint minutes with
Prof Mutambirwa.
27.2 To affirm the opinion on the matter as expressed in his report and the
joint minutes.
27.3 To respond to issues raised by Prof Mutambirwa in his evidence.
[28] Regarding the circumstances which led to the signing of the joint minutes and
the addendum to the joint minutes . As I stated before during the hearing of the
trial, both joint minutes were signed by the experts, the circumstances that led to
the signing of the joint minutes fall outside of what is before the court, the court
will confine itself to the opinions expressed in the signed joint minutes.
8 Constitution of the Republic of South Africa, Act 108 of 1996: section 34 Access to Courts
8 Constitution of the Republic of South Africa, Act 108 of 1996: section 34 Access to Courts
provides that: “Everyone has the right to have any dispute that can be resolved by the application
of law decided in a fair public hearing before a court or where appropriate another independent
and impartial tribunal or forum.”
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[29] The plaintiff’s application to call Dr Coetzee to affirm his opinion on the matter as
expressed in his report and the joint minutes is in my view warranted. According
to Prof Mutambirwa ’s testimony, he signed the first joint minute, which was
drafted by Dr Coetzee without reading it, because he trusted Dr Coetzee.
However, after reading it within a short space of time, he was of the view that the
joint minute was incorrect and asked Dr Coetzee telephonically if he could please
amend the minute and that it be signed again. A second addendum minute was
drafted by Prof Mutambirwa which he submitted to Dr Coetzee for signature. The
addendum was signed by both experts. It is submitted by the plaintiff, which I am
in agreement with that Pro f Mutambirwa during his testimony repudiated or
resiled himself from about 60 or 70 percent of the joint minute and also from
significant parts of the second addendum joint minute, which he had drawn up
himself.
[30] There was no foreshadowing that Prof Mutambirwa would repudiate or resile
significant parts of the joint minute addendum which he drew up himself. Having
heard the testimony of Prof Mutambirwa, I am persuaded that he repudiated,
resiled or changed his mind on aspects of the addendum joint minute while
engaging it on the stand.
[31] For example, Prof Mutambirwa said that he would not have used the words
sepsis or septicaemia but rather would have used “raised inflammatory markers.”
It is submitted by the plaintiff that this is not what the joint minutes said but is a
new interpretation by Prof Mutambirwa of what he meant to say. Furthermore, it
is submitted by the plaintiff that Prof Mutambirwa said that Dr Coetzee agreed to
remove the word “toxic”; this is also not true as the addendum minute was agreed
to be read together with the original minute, and this is specifically stated on the
addendum. The plaintiff’s position is that Dr Coetzee had signed the minutes on
addendum. The plaintiff’s position is that Dr Coetzee had signed the minutes on
the face value of the minutes. In other words, the ordinary meaning of words
should be applied to what was stated.
[32] The following is an excerpt of exchanges that took place:
“
Adv Munro: Dr Coetzee signed it on the face value of it
Prof Mutambirwa: Hm, okay.
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Adv Manaka: Yes, My Lady all that I wanted to say is that the two doctors had a
meeting, and so they understood what they meant by writing it here.
What Prof is saying is what they understood during their meeting. And
if Dr Coetzee is going to say something different to what Prof is saying
they understood, they meant here, then he must come and testify to
that.
Court: Yes, he would have to come, yes.
Adv Manaka: Yes
Court: So we have one version what is understood and would have to bring Dr
Coetzee to understand what his version is.”
[33] In the premises, I am of the view that it is in the interest of justice that Dr Coetzee
be given the opportunity to either confirm what he said on face value in his expert
report, the joint minute and addendum joint minute ; that it is indeed what he
meant or alternatively that he understood the words in the joint minute and
addendum joint minute to mean what he and Prof Mutambirwa “ understood”
them to mean during their meeting. It would therefore also follow that by calling
Dr Coetzee to testify, he would also be competent to respond to issues raised by
Prof Mutambirwa in his evidence, which in my view also falls within the interest
of justice to do so, particularly since Dr Coetzee is the counterpart to Prof
Mutambirwa, as both experts are urologists.
[34] The application by the plaintiff to reopen her case to call Dr Coetzee is granted.
c) Recalling Dr Lebos (specialist surgeon)
[35] The plaintiff’s main expert witness was Dr Lebos who testified on the issue of the
treatment of the plaintiff post TLH, including amongst others; the clinical signs of
developing septicaemia and sepsis, the role of that CRP (C-reactive protein) and
the role that procalcitonin play s in diagnosing septic aemia and sepsis, the
manner in which septicaemia and sepsis is treated and managed, and the degree
of urgency required to treat sepsis and septicaemia to avoid long- term
complications.
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[36] It is correctly pointed out by the plaintiff that during the cross -examination of Dr
Lebos, the defendant put to him that because urine is sterile, any sepsis that
would develop would take 72 hours to develop. Dr Lebos dealt with this evidence.
However, during his testimony, Prof Mutambirwa raised further issues that were
not put to Dr Lebos, and which according to the plaintiff, were also in conflict with
the medical literature. These aspects include the following (as submitted by the
plaintiff):
36.1 Professor Mutambirwa said that the plaintiff was not very ill, and he
would not have suspected anything wrong with her, because she did not
have a high temperature, despite her other symptoms. It was averred by
the plaintiff that the defendant did not put to Dr Lebos that the plaintiff’s
temperature was an issue in the trial. The defendant said in the replying
affidavit that Dr Chasumba (defendant’s specialist surgeon expert) also
mentioned raised temperature in his evidence. The plaintiff concede d
that this is true but submitted that Dr Chasumba mentioned this as one
of the signs, and he did not say that the plaintiff did not have sepsis. It
was averred by the plaintiff, that in fact he said that the CRP of 370
indicated a septic picture.
36.2 Prof Mutambirwa disputed that a CRP of 370 or a procalcitonin of 20 was
diagnostic of sepsis or septicaemia. He vacillated a bit on this evidence,
but on the whole, he came back to saying that the plaintiff had an
infection, but not one that he would have taken her back to theatre to
remedy. He would have left her for at least a week to four weeks before
taking her back to theatre. He also said that he would not have bothered
to do the tests for CRP, procalcitonin or liver function, and that this was
a waste. It is averred by the plaintiff, correctly, that this was never put to
Dr Lebos to comment on. Prof Mutambirwa was presented with articles
and the diagnosis on the laboratory reports themselves, which it is
and the diagnosis on the laboratory reports themselves, which it is
submitted by the plaintiff were in conflict with his opinion. The plaintiff,
therefore, respectfully submitted that Dr Lebos ought to be afforded an
opportunity to comment on Prof Mutambirwa’s evidence and on the
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articles and blood results in so far as Prof Mutambirwa raised issues not
put to Dr Lebos previously.
36.3 Dr Lebos testified that the left lung pleural effusion diagnosed in the
plaintiff was caused by the developing sepsis in the abdomen. Prof
Mutambirwa testified that the pleural effusion was a consequence of the
anaesthetic. This was never put to Dr Lebos.
[37] Regarding the issue of the temperature, I find that aspect of Prof Mutambirwa’s
evidence a material factor in this case. He concluded that the plaintiff was not
very ill and that he would not have suspected anything wrong with her. While not
wanting to go into the merits of this case, it is important to note that Prof
Mutambirwa isolated t he temperature as a factor to consider in determining
whether the plaintiff was ill or not, despite her having other symptoms. In
rendering a judgment in this case, that aspect of his evidence deals with aspects
of negligence and causation, thus I am in agreement with the plaintiff that this
issue should have been put to Dr Lebos and that nothing was said on this issue
until Prof Mutambirwa testified. I am not persuaded by the arguments put forth
by the defendant that Dr Lebos elected not to testify on the positive implications
of the patient’s temperature, notwithstanding that the evidence was available to
him, and he was able to do so. In terms of the audi alteram partem rule, it would
have only been fair to the plaintiff, that the defendant put to the plaintiff that Prof
Mutambirwa would lead evidence on this issue in the context that he did not
regard the patient as being ill because she did not have a high temperature,
despite her other symptoms.
[38] Regarding Prof Mutambirwa’s evidence where he disputed that a CRP of 370 or
a procalcitonin of 20 was diagnostic of sepsis or septicaemia; and that he would
have left her for at least a week to four weeks before taking her back to theatre.
And that he would also not have bothered to do the tests for CRP, procalcitonin
And that he would also not have bothered to do the tests for CRP, procalcitonin
or liver function, and that this was a waste. In my view, I find these aspects of
Prof Mutambirwa’s testimony material to this case. I am not persuaded by the
defendant’s averment that there is nothing material that is placed before this
court to support any of the evidence and/or opinion that Dr Lebos can testify on
which he has not already expressed his opinion. In the interest of justice, I am of
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the view that Dr Lebos be afforded the opportunity to comment on these aspects
of Prof Mutambirwa’s evidence and on the articles and blood results in so far as
Prof Mutambirwa raised issues not put to Dr Lebos previously.
[39] Regarding Prof Mutambirwa’s testimony that the pleural effusion was a
consequence of the anaesthetic. On the day of the hearing of this matter, it was
agreed between the parties and acknowledged by the court that Prof
Mutambirwa’s evidence regarding the pleural effusion would be regarded as
inadmissible evidence.
[40] In the premises, in the interests of justice and in accordance with the audi alteram
partem rule, the application by the plaintiff to reopen her case to recall Dr Lebos
is granted only in respect to the issues listed in paragraphs 36.1 and 36.2 above.
Costs
[41] The plaintiff submitted that there would indeed be an argument in relation to costs
and the scale of costs, but this is best left to the conclusion of the matter when
the court can assess the matter as whole. The defendant had submitted that it is
trite that where a party seeks an indulgence from the court, such party must show
good cause and bear the consequences thereof, including an appropriate order
as to costs. It was further submitted by the defendant that in the circumstances,
the defendant also seeks a cost order even if the application is granted and the
plaintiff is successful, because she is seeking an indulgence and there is no
reason why the defendant should be out of pocket. Having heard the submissions
of both counsel, I am of the view that the costs be costs in the cause of the action,
where the costs can be assessed as a whole.
Conclusion
[42] Having made the decision to grant the plaintiff the opportunity to reopen her case
by calling Dr Coetzee and recalling of Dr Lebos, in my view this case is
distinguishable from a case where a plaintiff having heard the defendant’s case
simply seeks a second opportunity at the “ bite of the cherry ”, to remedy an
simply seeks a second opportunity at the “ bite of the cherry ”, to remedy an
evidentiary deficiency in her own case. The plaintiff’s case had already been
closed. Prof Mutambirwa advanced opinions in his testimony that were not
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contained in either the first joint minute and/or the addendum minute.
Furthermore, the evidence advanced was also not in Prof Mutambirwa’s expert
report. The significance of this is not merely procedural in nature. The evidence
advanced by Prof Mutambirwa, in my view is material to the central issue in this
trial, namely whether the plaintiff was suffering from sepsis and/or sepsis wound
as pleaded in the case, the consequences thereof, is important to the court in
making a determination/finding in respect of negligence and causation. I am
accordingly not persuaded by the defendant’s averments that there is no legal
justification to grant the plaintiff leave to reopen her case to call Dr Coetzee and
recall Dr Lebos.
[43] I have considered the possible prejudice which may be occasioned by the
defendant with the reopening of the plaintiff’s case. I am of the view that the
prejudice can be substantially ameliorated by limiting the scope of the reopening.
The plaintiff will not be allowed to reopen her entire case or to introduce evidence
concerning matters unrelated to Prof Mutambirwa’s evidence. The defendant will
retain the right to cross -examine Dr Coetzee and Dr Lebos in consequence of
this order. The plaintiff will also provide the defendant with a summary of the
experts’ opinion and reasons therefor in the context of the rules encapsulated in
Rule 36 of the Uniform Rules of Court.
Order
[44] In the circumstances, having read the papers and heard both counsel in this
matter, and in the interests of justice, I hereby make the following order:
44.1 The plaintiff is granted leave to reopen her case.
44.2 The reopening is strictly limited to the calling of Dr Coetzee
to a) affirm his opinion on the matters expressed in his
report, the joint minutes and joint addendum report; and b)
respond to issues raised by Prof Mutambirwa in his
evidence.
44.3 The reopening is strictly limited to the recalling of Dr Lebos
to address the following: a) the role of the issue of
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temperature as raised by Prof Mutambirwa in his evidence;
b) respond to the issues where Prof Mutambirwa disputed
that a CRP of 370 or a procalcitonin of 20 was diagnostic
of sepsis or septicaemia; he would have left the plaintiff for
at least a week to four weeks before taking her back to
theatre and that he would not have bothered to do the tests
for CRP, procalcitonin or liver function, and that this was a
waste; as raised by Prof Mutambirwa in his evidence.
44.4 Before Dr Coetzee is called and Dr Lebos is recalled, and
in accordance with Rule 36(9) of the Uniform Rules of
Court, the plaintiff shall furnish the defendant with a
summary of the experts’ opinion and the reasons therefor,
insofar as such opinion and reasons relate to the evidence
contemplated in paragraphs 44.2 and 44.3 above.
44.5 The plaintiff shall ensure that the evidence of Dr Coetzee
and Dr Lebos is confined to the matters contemplated in
paragraphs 44.2 and 44.3 above and the plaintiff shall not
be entitled to introduce evidence directed at any other
issue(s) or to supplement , repair or remedy any other
deficiency in her case.
44.6 The defendant shall be afforded the opportunity t o cross-
examine Dr Coetzee and Dr Lebos and be permitt ed to
lead responsive expert evidence, by recalling her own
witnesses, subject to compliance with Rule 36(9) of the
Uniform Rules of Court.
44.7 The application to recall Dr Murray is not granted.
44.8 The costs of this application shall be the costs in the cause
of the main action.
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_____
W DOMINGO
ACTING JUDGE OF THE HIGH COURT
PRETORIA
Delivered: This judgment was prepared and authored by the Judge whose name
is reflected and is handed down electronically by circulation to the parties’ legal
representatives by email and by uploading it to the electronic file of this matter
on CaseLines. This matter was heard on a Teams Meeting Online platform on
25 May 2026. The date for hand down is deemed to be 24 August 2026.
APPEARANCES
For the Applicant: ADV WL MUNRO instructed by JL La GRANGE,
ADAMS & ADAMS
For the Respondent: ADV N MANAKA instructed by MR N L NKUNA ,
THE OFFICE OF THE STATE ATTORNEY,
PRETORIA
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For the Applicant:
For the Respondent:
A instructed by B
X instructed by Y