C.N.K obo S.T.K v Member of the Executive Council for Health of the Limpopo Provincial Government (92783/2025) [2025] ZAGPPHC 927 (5 September 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 927 | Noteup | LawCite sino index ## C.N.K obo S.T.K v Member of the Executive Council for Health of the Limpopo Provincial Government (92783/2025) [2025] ZAGPPHC 927 (5 September 2025) C.N.K obo S.T.K v Member of the Executive Council for Health of the Limpopo Provincial Government (92783/2025) [2025] ZAGPPHC 927 (5 September 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_927.html sino date 5 September 2025 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO:  92783/2025 HEARD ON: 22 July 2025 JUDGMENT: 5 September 2025 (1) REPORTABLE: YES /NO (2) OF INTEREST TO THE JUDGES: YES /NO (3) REVISED. DATE: 5 September 2025 SIGNATURE: In the matter between:- K[...]: C[...] N[...] OBO S[...] T[...] K[...] Plaintiff AND THE MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH OF THE LIMPOPO PROVINCIAL GOVERNMENT Defendant JUDGMENT Strijdom J INTRODUCTION 1. There can be no purer miracle than the miracle of new life, and that must have been the expectation of the plaintiff throughout the nine months of her pregnancy.  However, by the time S[...] was born on 3 July 2013, her experience had been anything but traumatic.  Since then, S[...] has been diagnosed with hypoxic ischemic incident due to perinatal asphyxia, causing him to sustain severe brain damage, a result of which he is suffering from cerebral palsy, mental retardation and epilepsy. 2. In this matter, the plaintiff instituted legal proceedings both in her personal and representative capacity as a mother and natural guardian of her minor son, S[...] T[...] K[...] (S[...]), who was born on 3 July 2013 by caesarean section at St Rita’s Hospital, in Limpopo Province. 3. The plaintiff’s claim against the defendant is for payment of damages suffered by S[...], resulting from hypoxic ischemic incident due to perinatal asphyxia, causing him to sustain severe brain damage, as a result of which he is suffering from cerebral palsy. [1] 4. The basis of the plaintiff’s claim is that the defendant’s employees had a legal duty to monitor the condition of the plaintiff and the unborn S[...] and act appropriately on the results. It is pleaded by the plaintiff that they negligently failed to do so in breach of that legal duty. 5. It is the breach of that duty of care they had towards them, that caused S[...] to be born with hypoxic ischemic incident due to perinatal asphyxia, causing him to sustain severe brain damage, as a result of which he is suffering from cerebral palsy, mental retardation and epilepsy. 6. The complication occurred as a result of the negligence of the defendant’s employees. [2] 7. The defendant does not deny that at all relevant times to the birth and delivery of S[...] and in particular during the period 1-3 July 2013, the employees who attended to the plaintiff were acting within the course and scope of their employment with the defendant. 8. The defendant denied any negligence in the above.  When pleading to the cause of S[...]’s condition, defendant predicated its defence upon the following in its amended plea: [3] “ 4.2.18  The injury suffered by the baby, acute profound hypoxic ischemic brain injury is consistent with acute hypoxia occurring in the last 30 to 40 minutes prior to delivery including Meconium Aspiration Syndrome (MAS). 4.2.19 The Meconium  was passed while in transit and MAS occurred in utero, this could not be foreseen, predicted, or prevented, the aspiration also occurred in the last 30 to 40 minutes prior to delivery by caesarean section. 4.2.20 The staff at either hospital could therefore not be able to do anything to prevent the MAS.  This was not a preventable event. 4.2.21 Transfer was done timeously and caesarean section performed within an hour of the first assessment at St Rita’s Hospital. 4.2.22 The decision for caesarean section was not fetal distress but CPD, poor labour progress and postdates.” 9. By agreement between the parties, the issues of liability and quantum were separated in terms of the provisions of Rule 33(4) of the Uniform Rues of Court.  The matter thus proceeded to trial on the issue of liability. COMMON CAUSE FACTS 10. The following facts are common cause and or not in dispute between the parties. ; 10.1 The plaintiff booked at Ikageng Clinic, and her first visit was on 5 January 2013. 10.2 She was a 25-year-old POG1 in 2012 and she was anaemic when she booked at about 18 weeks gestation. 10.3 The anaemia became symptomatic during the early ANC period around 19 weeks, and she was admitted and transfused with 2 units of packed red blood cells. 10.4 She was diagnosed with pregnancy induced hypertension and aldoment was prescribed for treatment. 10.5 Back of the antenatal card was not included in the bundle of records. 10.6 The plaintiff was referred to hospital and admitted overnight on 1 July 2013 and she was not in labour at the time.  The decision was taken to induce labour using Cytotec/Misoprostol.  She progressed to active labour by 23:45 and partogram was also started at 23:34. 10.7 The doctor assessed the plaintiff at 3:20 after 95 minutes delay. 10.8 Caesarean section could not be performed at Jane Furse hospital due to lack of electricity.  Transfer was undertaken to St Rita’s Hospital at 4:45. 10.9 S[...] was delivered by caesarean section on 3 July 2013 at the St Rita’s Hospital in a compromised state and that he had suffered a hypoxic ischemic brain injury which occurred during the intrapartum period (i.e., during labour and delivery).  As a result of the hypoxic ischemic brain injury, he had been left with an asymmetrical mixed type of cerebral palsy in consequence whereof he is incapable of independent mobility.  His co-morbidities include profound intellectual disability, microcephaly multiple contractures, scoliosis, strabismus and probable cortical visual impairment, pseudobulbar palsy, uncontrolled epilepsy and global developmental delay. 10.10 The defendant does not deny that at all times relevant to the birth and delivery of S[...], the employees who attended to the plaintiff were acting within the course and scope of their employment with the defendant. ISSUES TO BE DETERMINED 11. Whether the delay by Dr Buwane to assess the plaintiff and lack of electricity contributed to the hypoxic ischemic brain injury suffered by S[...] and the resultant cerebral palsy. 12. Whether substandard care by the employees of the defendant resulted in hypoxic ischemic brain injury suffered by S[...]. 13. Whether a sentinel event, namely cord compression occurred. THE FACTS The expert evidence tendered by the plaintiff 14. Dr Linda Murray, a specialist obstetrician and gynecologist testified as follows: 14.1 That the plaintiff’s pregnancy progressed to postdates and she had induced labour. 14.2 The plaintiff developed obstructed labour for which she needed a caesarean section but the hospital in question could not carry out the caesar and she was transferred to St Rita’s Hospital where the caesarean was performed some hours later and she gave birth to a baby born in a compromised state, in keeping with hypoxia.  The plaintiff was high-risk because of postdates. 14.3 The CTG was not used to monitor the foetal heart and that is substandard care.  CTG should have been used according to the guidelines for maternity care because the plaintiff was induced and her pregnancy was over 42 weeks. 14.4 Dr Buwane took one hour and 35 minutes to attend to the plaintiff.  There was a delay in him attending to this labour complication and when he did, he diagnosed obstructive labour and poor progress, he indicated caesarean section, but his note shows that they could not do that at Jane Furse. 14.5 Labour should be induced in a hospital equipped with a 24-hour labour and delivery unit with a fully functional operating theatre.  According to the guidelines.  The fact that there were no lights in theatre means that the theatre was not operational, it means they could not do a caesarean section. 14.6 There were two delays, firstly, there was a delay in the doctor assessing the plaintiff and another delay when she needed to be transferred from one hospital to another. 14.7 The delivery interval was 2 hours and 10 minutes from the time the doctor said she should have a caesar.  This was excessive as the guideline state that caesar should be done within an hour of the decision. 14.8 The passage of meconium, the fact that there was foetal heart abnormality and obstructed labour, all together are indicators of significant foetal hypoxia. 14.9 With this type of brain injury, the brain is injured over a shorter period of time, but the cause of the change can occur over time.  She testified that the collapse was foreseeable.  There was foetal tachycardia (fast heart rate) at 2:30 and there was delivery at 5:40.  There were no warning signs of non-reassuring condition over a period of hours.  Had there been proper monitoring, the medical staff would have taken action to prevent the injury. 14.10 There is no evidence that the post term pregnancy was acknowledged antenatally or that an earlier induction of labour was considered even though all pregnant woman should be referred to hospital at 41 weeks for purposes of evaluating the maternal and foetal condition and planning delivery. 15. Professor Johan Smith, a specialist Neonatologist, testified as follows: 15.1 Maternal anaemia probably did not play a causal role in the outcome of the pregnancy since it is not associated with development of cerebral palsy 15.2 He agrees with Professor Cooper that the pregnancy was at least 42 weeks gestation.  That it was post term.  That puts the foetus at risk for hypoxia ischemia during labour and delivery. 15.3 At 1:45. The plaintiff’s cervix was seven centimeters dilated.  The membranes had raptured draining clear amniotic fluid.  On infusion a drip with Ringer’s Lactate was erected and urinary catheter was in place and was draining bloody urine.  The doctor was informed telephonically about the situation who said he will come and assess the patient. 15.4 At 2:30, the plaintiff was reassessed.  The foetal heart rate was 168 to 174 beats per minute and was described as clear and regular,”  this rate is a foetal tachycardia.  The plaintiff had the “urge to push and she pushes continuously without resting.”  The doctor was called again and informed about the plaintiff who said that “he will come and assess the patient”.  The plaintiff was nursed in the left position and maternal oxygen was administered. 15.5 At 3:15  the urinary catheter was still draining blood-stained urine.  The plaintiff was complaining of lower abdominal pain.  The foetal heart rate was 168 beats per minute.  The doctor was again informed. 15.6 At 3:20, the doctor reviewed the plaintiff, this was 95 minutes after he was first requested to review the plaintiff. 15.7 The doctor diagnosed cephalopelvic disproportion (CPD), that is the baby is too big for the birth canal. 15.8 The doctor noted that the plaintiff was primigravida at post dates.  The foetal head was 4/5 th above the pelvic brim.  The cervix was eight centimeters dilated and there was moulding and caput. 15.9 The doctor diagnosed poor progress and postdates.  There is then a note that “there are no lights in theatre.” 15.10 At 3:30 the nursing notes reveal that the patient was seen by the doctor who said that he is transferring the patient to St Ritas because there is no electricity in theatre. 15.11 At 4:55 the plaintiff was reviewed by a doctor who transferred her to theatre.  She was taken to theatre where she was received at 5:13. 15.12 The baby was born in a compromised condition, a probable state of secondary apnoea, and this is usually the result of a preceding severed intrapartum hypoxic event. 15.13 Prof Smith testified that the type of brain injury described by Dr Alheit occurs after perinatal sentinel events which he told the court was not present here. 15.14 He testified that the doctor decided to perform an emergency caesarean and there was no electricity in the theatre.  In his view the event was foreseeable and preventable and that theatres should have emergency access to electricity.  The plaintiff was transferred to St Rita’s, where delivery occurs two hours later. 16. Dr Pearce, a pediatrician neurologist, testified as follows: 16.1 She performed a neurological examination on S[...] on 30 August 2021.  S[...] has a severe asymmetrical mixed type of cerebral palsy predominantly spastic. 16.2 His co-morbidities include profound intellectual disability.  He is not even aware that his mother is present, he cannot follow any instructions.  He has what we call microcephaly, that is a small head. 16.3 He has uncontrolled epilepsy seizures.  He is dependent on others for all activities of daily functioning. 16.4 Dr Pearce and Mogashoa concluded that the neonatal encephalopathy was caused by an intrapartum hypoxia.  That the reason that the child has cerebral palsy is the result of an intrapartum hypoxic event. It happened during labour and delivery. The expert evidence tendered by the defendant 17. Dr Mbokota, a specialist obstetrician and gynecologist, testified as follows: 17.1 He had the hospital records and the report of the defendant’s radiologist, Dr Kamolane during the time that he prepared the report. 17.2 He compiled joint minutes with Dr Murray, the plaintiff’s expert gynecologist and obstetrician. 17.3 He testified that the nature of brain injury that occurred in this case is called acute profound.  It is brain damage that occurs when there is a severe shortage of blood and oxygen supply to the brain of the foetus and in this case, it is termed acute profound hypoxic injury or basal ganglia thalamic.  It is acute, which means a near total or total shut down of blood and oxygen to the foetus for a period not less than 10 minutes but not exceeding 30 minutes.  This injury can occur anytime during a pregnancy but in this case, it has occurred during labour. 17.4 Usually this type of injury, the central or basal ganglia thalamic injury or acute profound injury generally would occur in instances where we have this thing called sentinel events.  It is things that just happen suddenly during labour which were not expected, and they have catastrophic outcomes.  He gave examples of sentinel events as abrupted placenta, the uterus just ruptures, or it can be an accident of the umbilical cord where the cord is compressed, or it is prolapsed or is knotted. 17.5 He testified that some sentinel events will be visible even after the delivery of the child and in other instances like cord compression you cannot really see because it occurs inside the pelvis. 17.6 The guidelines for maternity care (2007:106) refer to a pre-induction CTG and in using oxytocin for IOL (induction of labour), the guidelines (2007:50) says “Use CTG monitoring wherever possible”.  There is MSL (Meconium Stained Liquor), the guideline (2007:51) says “use CTG when available.” 17.7 The guidelines (2007:51) also say that “cardiotocography (CTG) is used for high-risk labour only and should be available in hospitals.  (TG machines are however in short supply.) 17.8 CTG monitoring is not the minimum standard but should only be used when available.  The hospital was thus justified to commence the induction of labour on the plaintiff. 17.9 Foetal heart rate was monitored manually and not by CTG.  The use of CTG in this case was not mandatory. 17.10 He agreed with the guidelines but disagreed with conclusions when there was foetal tachycardia, the midwife correctly intervened by commencing IPFR (intrauterine partum foetal resuscitation) while waiting for the doctor.  Induction of labour was done in hospital, the theatre is said to have been without electricity and thus the caesarean section could not be done at Jane Furse hospital.  It is not clear as to when this electricity problem arose.  It would be irregular and substandard to commence IOL when there is full knowledge to all the staff that the theatres are not working. 17.11 He testified that the plaintiff was at term (42 weeks) and her IOL was on the 1 st day of her 42 nd week, she was not post-term. 17.12 The hypoxic ischemic injury suffered by the child could only have occurred between 05:10 and 05:40 while she was being taken to theatre and the caesarean section performed.  Nothing could have been done to rescue intrapartum brain injury other than delivering the baby quicker. 17.13 Dr Mbokota testified that there was a delay from the time that the decision for a caesarean section was taken to the time the baby was delivered.  The delay was evident because the mother had to be transported to another hospital. 17.14 It is correct that when the decision for caesarean was made, it would have been ideal that the caesarean section be done at Jane Furse Hospital.  However, the injury suffered by the child most likely occurred 30 minutes prior to delivery, there was no hypoxic insult or injury prior to that time. 18. Professor Peter Allan Cooper, a specialist neonatologist, testified as follows: 18.1 That the radiologists, doctors Alheit and Kamolane agreed that the features on the MRI scan were exceedingly likely to be central PPBGT, hypoxic ischemic brain injury. 18.2 This type of brain is referred to as an acute profound type of hypoxic ischemic brain injury.  It is a sudden episode where there is virtually complete shutdown of blood to the brain.  It needs ten minutes to start causing damage to the central areas of the brain, and if it goes on for more than 45 minutes, invariable death ensures. 18.3 He commented on the evidence of Prof Smith that acute profound brain injury occurs only in circumstances where there is a known sentinel event like cord prolapse, uterine rupture and shoulder dystocia,  these are called recognizable sentinel events, they cause severe shutdown of blood to the brain. 18.4 He testified that some sentinel events such as compression of the cord during later stages of labour, are not recognizable, unless you have a cardiotocograph running continuously or after birth you would not know that there was compression of the cord, these are unrecognized but classified as sentinel events. 18.5 There are also well-described episodes where the foetus has been monitored by cardiotocograph, and the tracing has been completely normal and then there is a sudden bradycardia.  Bradycardia is a slow heart rate, the brin of the foetus depends largely on the heart rate to get enough blood.  Once the heart rate drops down, we know that there is going to be a severe insufficiency of blood getting to the brain, that is also a sentinel event, but the actual cause is not clear because there has been monitoring before, up until the time of the bradycardia.  Then the pattern brain injury has been described as a central one, similar to what we are seeing here. 18.6 Similarly, you may be monitoring the foetal heart rate half hourly, as is done during the latter stages of labour, but if during that half hour there is a sudden bradycardia, you would not know about it until the next time you monitor the foetal heart rate or listen to the foetal heart, rate these are what we call unrecognizable sentinel events. 18.7 Prof Cooper testified that material aneamia probably did not play a causal role in the outcome of the pregnancy since it is not associated with the development of cerebral palsy. 18.8 There was a delay of 95 minutes by the doctor to review the plaintiff. 18.9 There was no electricity in the theatre and the transfer of the plaintiff to St Ritas Hospital caused further delay. Evaluation of the evidence 19. When the evidence in this matter is considered in its totality, it is apparent that there is no dispute between the expert witnesses on most of the material issues in this matter safe for the issue whether there was an unknown sentinel event. 20. There is no dispute between the expert witnesses on the following material issues: 20.1 The plaintiff was admitted to the Jane Furse Hospital at around 17:00 on the 1fst of July 2013. 20.2 The foetus was in a reassuring condition on admission and there were no apparent concerns regarding the foetal condition  There is no dispute between the neonatologists that maternal anaemia did not play a causal role in the outcome of the pregnancy. 20.3 The plaintiff’s labour was induced around 11:44 on 2 July 2013 20.4 The guidelines for Maternity Care in South Africa (2007) stipulate that labour should only be induced in a hospital.  The most basic hospital would be regarded as a level 1 hospital.  The guidelines stipulate that a level 1 hospital should have 24 – hour labour and delivery high-risk woman, as well a a fully equipped operating theatre. 20.5 There was a concern over the foetal condition at around 01:45 on the 3 rd of July.  A doctor was called, to assess the plaintiff.  This was the first sign of any possible distress.  The doctor did not arrive and was again called At 02:30 and 03:15.  The expert witnesses accept that this 95-minute delay constituted an unreasonable delay in attending to the plaintiff. 20.6 The plaintiff was eventually seen by a doctor at 03:20 on 3 July.  She was assessed to have cephalo-pelvic disproportion, poor progress of labour and she was post-dates.  A decision was made that an emergency caesarean section be performed. 20.7 There was no electricity at the theatre of the Jane Furse Hospital and arrangements were made for a transfer of the plaintiff to the St Rita’s Hospital. 20.8 In light of the fact that the theatre at Jane Furst Hospital was not operational the induction of labour should never have been performed there, and the plaintiff should have been referred to be induced in a setting which was fully equipped to manage any complications arising during the induction of labour. 20.9 The plaintiff was transferred to the St Rita’s Hospital where her son was delivered, via emergency caesarean section, at 05:40 on the 3 rd of July 2013. 20.10 The decision-delivery interval was around 2 hours and 20 minutes.  The guidelines for Maternity Care in South Africa (2007) state that any caesarean section should be performed within an hour of the decision to operate. 20.11 Both the defendant’s expert witnesses, Prof Cooper and Dr Mbokota, testified that it is probable that S[...]’s brain injury could have been prevented had the caesarean section been done at Jane Furse Hospital.  Prof Cooper’s evidence was that the severe hypoxic-ischemic episode probably occurred after 03:45 and that, had a caesarean section been feasible at Jane Furse Hospital, the brain injury could have been avoided.  He referred to this in his evidence as “a health system failure. 20.12 Dr Mbokota during cross-examination conceded that the brain injury would have been prevented had the caesarean section been performed at Jane Furse Hospital an hour of the decision having been made at 03:20. His evidence was that there was no hypoxic injury prior to 05:10. 20.13 S[...] was born with a very low Agpar score of 4/10, did not cry at birth, and had to be resuscitated.  There was also meconium-stained liquor (grate 3) at birth that was suctioned.  S[...] was born in a very compromised condition, which is usually the result of a preceding severe intrapartum hypoxia-ischemia. 20.14 The fact that S[...] suffered a hypoxic ischemic injury of a term/mature brain is confirmed on MR imaging.  He developed an early onset neonatal encephalopathy of moderate degree.  This diagnosis confirmed the essential component (“doorway”) linking intrapartum asphyxia to subsequent cerebral palsy in a casual pathway. 20.15 The paediatric neurologists have confirmed intrapartum hypoxia as the most likely cause of S[...]’s neurological condition and outcome. 20.16 S[...] was born with a weight, length and head circumference that are all normal for a baby born at term thereby reasonably excluding an antenatal injury to the brain. 21. Prof Smith and Dr Murray was not cross-examined on material issues.  Dr Pierce was not cross-examined at all and her evidence was thus accepted by the defendant. 22. The plaintiff’s expert witnesses gave reasons for their opinions and the logic inferences which they drew from the totality of the evidence on the issues that they testified about.  Their conclusions and opinions on all material issues were corroborated by the evidence of the defendant’s expert witnesses.  They gave rational answers based on logical reasoning.  There is no reason to reject the evidence of any of the plaintiff’s expert witnesses on any of the material issues. 23. Dr Mbokota did not make a favourable impression on me.  He conceded a number of factual errors in his report.  At least 14 factual errors were identified and admitted by him during cross-examination.  The evidence of Dr Murray is to be accepted on any issue where there is a difference in her conclusions and that of Dr Mbokota.  However, material concessions were made by Dr Mbokota on the core issue in this matter. Negligence – Legal Principles 24. It is trite law that the onus rests on the plaintiff to prove on a balance of probabilities that the employer and medical personnel who attended to the plaintiff when she was pregnant and in labour with S[...] were negligent, and that such negligence was causally linked to the intrapartum hypoxic ischemic brain injury that S[...] suffered with the resultant cerebral palsy. 25. The Constitutional Court in Oppelt v Head:  Health, Department of Health Provincial Administration [4] held as follows: ´[71]    In simple terms, negligence refers to the blameworthy conduct on a person who has acted unlawfully.  In respect of medical negligence, the question is how a reasonable medical practitioner in the position of the defendant would have acted in the particular circumstances … [73]      The negligence of medical practitioners is assessed against the standards at the medical profession at the time.” 26. In my view, the principles of negligence in medical context relating to medical practitioners equally apply to the negligence of professional nurses. 27. The test is therefore based upon what can be expected of the ordinary or average healthcare provider in view of the general level of knowledge, ability, experience, skill and diligence possessed and exercised by the practitioner in his field. [5] 28. It was conceded by the defendant that the substandard monitoring of the plaintiff’s labour amounted to a breach of a legal duty and was therefore wrongful.  However, it was submitted by the plaintiff that this area of negligence is not materially or directly related to the outcome in this matter in that the main issue is the delays. 29. It was submitted by the defendant that there was nothing that could have been done to save S[...] as the caesarean section was underway at the time he suffered hypoxic ixhemic brain injury.  It was further submitted that a sentinel event, namely cord compression occurred and it was not visible or recognizable after the baby was delivered. 30. On the common cause facts in this matter I conclude that the conduct of the defendant’s employees in delaying the assessment of the plaintiff by a doctor, which would probably have resulted in the decision to perform a caesarean section having been made earlier, and the delay in performing the caesarian section was a deviation from the standard of how the reasonable nurse, midwife and doctor would and should have acted in the circumstances of this matter.  Reasonable medical and nursing members of staff would have foreseen that the said delays will cause injury to the foetus and would have taken reasonable steps to avoid the injury to the foetus.  The said conduct in my view was grossly negligent. FATUAL CAUSATION 31. In International Shipping Co (Pty) Ltd v Bentley [6] , the SCA stated: “ The enquiry as to the factual causation is generally conducted by applying the so-called ‘but-for’ test which is designed to determine whether a postulated cause can be identified as a causa sine quo non of the loss in question.  In order to apply this test one must make a hypothetical enquiry as to what probably would have happened but for the wrongful conduct of the defendant”. 32. In Minister of Safety and Security v Duivensboden [7] it was decided that: “ A plaintiff is not required to establish the causal link with certainty, but only to establish that the wrongful conduct was probably a cause of the loss, which calls for a sensible retrospective analysis of what would probably have occurred based upon the evidence and what can be expected to occur in the ordinary course of human affairs rather than an exercise in metaphysics.” 33. The defendant contends that on a balance of probabilities and having regard to the joint minutes of the Radiologist in particular Dr Alheit, that “BA submits that only if there is a history of a sentinel event during labour can this injury pattern be named as acute profound in nature.” 34. It was submitted by the defendant that a sentinel event, namely cord compression occurred and it was not visible or recognizable after the baby was delivered as per the testimonies of Prof Cooper and Dr Mbakata. 35. In this matter, it is not in dispute that had the caesarean section been performed earlier by no later than 05:10, at Jane Furse Hospital, the brain injury to S[...] would have been avoided. 36. The risk of S[...]’s brain injury would have been reduced if not for the Hospital’s negligent omissions.  The defendant’s witnesses conceded the issue of factual causation. 37. Even if it is accepted that there was not foetal distress prior to 30 minutes before delivery, and that everything was well right until 30 minutes before delivery, there is no merit in this defence based on the concession made by both expert witnesses for the defendant namely that a caesarean section ought to have been done long before then and had it been done, there would have been no brain injury to S[...].  The question as to whether there was an unknown sentinel event becomes immaterial in this matter. CONCLUSION 38. In my view, given the evidence of all the experts the concessions made by the defendant’s experts and the common cause facts, it is manifest that injuries suffered by S[...] were as a direct consequence of the negligent conduct of the employees of the defendant and that; on the conspectus of the evidence placed before me, the plaintiff has succeeded in proving that the defendant is liable for any proven agreed damages suffered by plaintiff and S[...] as a result. COSTS 39. Adv M Coetzer has argued that over and above the fact hat costs should follow the outcome, the costs occasioned by the employment of counsel fo the plaintiff, including the trial costs for the appearances on the 12 th , 13 th , 15 th , 19 th , 21 st , 22 nd and 23 rd of May 2025, and the 22 nd of July 2025 should be paid on the attorney-and-client scale C. 40. It was submitted by counsel for the plaintiff that the defendant unreasonably prolonged the trial by requesting on two occasions that the matter stand down to accommodate the defendant’s witnesses and that the defendant should reasonably have been aware, on a proper consideration of the available evidence and admitted facts and opinions, that there was no reasonable prospect of successfully defending the action. 41. Counsel for defendant argued that he has acted reasonably in his conduct of the litigation and that no special grounds are present to award costs on attorney-and-client scale. 42. In general, it can be stated that the court does not order a litigant to pay the costs of another litigant on the basis of attorney and client unless some special grounds are present. 43. It cannot be said that the defendant was mala fide or that counsel for defence has acted unreasonable, reckless or maliciously. 44. In awarding costs, the court has a discretion to be exercised judicially. 45. Upon weighing the issues in this case and the conduct of the parties, I am of the view that a costs order on attorney-and-client scale would not be proper under the circumstances. 46. In the result, the draft order marked “Annexure A” is made an order of Court. J.J. STRIJDOM JUDGE OF THE HIGH COURT GAUTENG DIVISION, PREORIA APPEARANCES: For the plaintiff:                 Adv M Coetzer Instructed by:                      Wim Krynauw Attorneys Inc For the Defendant:            Adv SS Sape Instructed by:                      State Attorney, Pretoria ANNEXURE ‘A’ IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION – PRETORIA CASE NUMBER: 2015 / 92783 BEFORE THE HONOURABLE MR JUSTICE STRIJDOM DATED ON THIS THE 5 TH DAY OF SEPTEMBER 2025 In the matter between: K[...]: C[...] N[...] obo S[...] T[...] K[...]                                                                    Plaintiff and THE MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH OF THE LIMPOPO PROVINCIAL GOVERNMENT                                                    Defendant This Order is made an Order of Court by the Judge whose name is reflected herein, duly stamped by the Registrar of the Court and is submitted electronically to the Parties / their legal representatives by email. This Order is further uploaded to the electronic file of this matter on Case Lines by the Judge or her Secretary / Registrar. The date of this Order is deemed to be the 5 September 2025 COURT ORDER IT IS ORDERED THAT: 1.         The issue of liability is separated from the issue of the determination of the quantum of the Plaintiff’s claim in her personal and representative capacities in accordance with the provisions of Rule 33(4) of the Uniform Rules of Court. 2.         The issue of the determination of the quantum of the Plaintiff’s claim in her aforesaid capacities is postponed sine die. 3.         The Defendant is liable for payment of 100% (one hundred percent) of the Plaintiff’s proven or agreed damages in her personal and representative capacities, which damages flow from the severe brain injury sustained by the Plaintiff’s son, S[...] T[...] K[...], during the intrapartum period in consequence of the negligence of the hospital and medical staff of the Jane Furse Hospital and St. Rita’s Hospital during the period between the 1 st and the 3 rd of July 2013, and the resultant cerebral palsy (and its sequelae) which he suffers from. 6-2 6-2 3 4.         The Defendant shall pay the Plaintiff’s taxed or agreed party-and-party costs of suit on the High Court scale up to finalisation of the issue of liability, which costs shall include (but not necessarily be limited to): 4.1      the costs occasioned by the employment of counsel by the Plaintiff, including the trial costs for the appearances on the 12 th , 13 th , 15 th , 19 th , 21 st , 22 nd and 23 rd of May 2025, and the 22 nd of July 2025, such costs to be paid on Scale C; 4.2      the Plaintiff’s costs of obtaining the medico-legal reports of the following experts and joint minutes relating to the issue of liability, including the cost of Counsel on Scale C of drafting the Plaintiff’s expert summaries in respect of the issue of liability; 4.2.1 Dr Alheit; 4.2.2 Dr Murray; 4.2.3 Professor Smith; and 4.2.4 Dr Pearce. 4.3      the cost of preparation, qualifying and reservation fees, and fees for testifying at the trial on the aspect of liability of Dr Murray, Professor Smith and Dr Pearce, including their reasonable traveling and accommodation expenses, and including the cost of consultations by the Plaintiff’s legal representatives with these experts, and the costs of these experts in preparing for and holding joint meetings with their respective counterparts, and preparing joint minutes; 4.4      the costs of the MRI investigation of S[...]’s brain performed by Burger Radiologists on 17 March 2015 for purposes of the report of Dr Alheit, expert radiologist; 4.5      the costs consequent upon the drafting of heads of argument; 4.6      the costs and expenses of accommodation and of transporting the Plaintiff and the minor child in attending all medico-legal examinations and consultations by the Plaintiff’s and the Defendant’s experts, (where applicable), for purposes of preparing their reports for the trial relating to the issue of liability, subject to the discretion of the Taxing Master; and 4.7      the costs of trial, in relation to the appearances as per paragraph 4.1 above, shall be paid on party and party scale C. 5.         The costs stipulated above shall be paid into the trust account of the Plaintiff’s attorney, the details which are: WIM KRYNAUW ATTORNEYS TRUST ACCOUNT ABSA – TRUST ACCOUNT ACC. NR: 4[...]REF: K WILLIAMSON / MEC0587. 6.         The following provisions shall apply regarding the determination and payment of the Plaintiff’s abovementioned taxed costs: 6.1      the Plaintiff’s attorney shall serve the notice of taxation on the Defendant’s attorneys of record; 6.2      the Plaintiff’s attorney shall allow the Defendant 30 (thirty) calendar days to make payment of the taxed costs from date of settlement or taxation thereof; 6.3      should payment not be made in accordance with paragraph 6.2 above, the Plaintiff shall be entitled to recover interest at the applicable legal rate of interest on the taxed or agreed costs calculated as from 31 days from the date of affixing of the Taxing Master’s allocatur or date of settlement of the issue of costs, to date of final payment. BY ORDER OF COURT THE REGISTRAR Counsel for the Plaintiff: Adv. M. Coetzer 083 409 8077 martincoetzer@vodamail.co.za Attorneys for the Plaintiff: Wim Krynauw Attorneys Inc. – Ms K. Williamson (011) 955-5454 kelly@wkattorneys.co.za Counsel for the Defendant: Adv. S. Sape 083 695 9616 stonesape@law.co.za Attorneys for the Defendant: State Attorney (Pretoria) – Mr N Phalatse NgPhalatse@justice.gov.za [1] Particulars of claim para 5 [2] Particulars of claim para 6 [3] Caselines: A32 Amended plea [4] 2016 (1) SA 325 (CC).  See also S v Kramer and Another 1987 (1) SA 887 (W) [5] Buthelezi v Ndaba 2013 (5) SA 437 (SCA), Van Wyk v Lewis 1924 AD 438. [6] 1990 (1) SA 680 (A) at 700 [7] 2002 (6) SA 431 (SCA) sino noindex make_database footer start