THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 329/10

In the matter between:

THE MEC FOR THE DEPARTMENT OF HEALTH
FOR THE PROVINCE OF KWAZULU-NATAL
Appellant

and

DENISE FRANKS
Respondent

Neutral citation:
The MEC for the Department of Health v Denise Franks
(329/10) [2011] ZASCA 84 (27 May 2011)

Coram:
NAVSA, PONNAN, SNYDERS, THERON JJA AND MEER
AJA

Heard:
09 May 2011

Delivered:
27 May 2011

Summary:
Delict - factual causation not established – inferences from
facts in civil matters.

ORDER

On appeal from: KwaZulu-Natal High Court (Pietermaritzburg) (Patel J sitting
as court of first instance):
The appeal is upheld with costs, including the costs of two counsel.
The order by the court below is set aside and replaced with the
following:

‘The plaintiff’s action is dismissed with costs, including the costs of two
counsel.’

JUDGMENT

SNYDERS JA (Navsa, Ponnan, Theron JJA and Meer AJA concurring)

[1] The KwaZulu-Natal High Court, Pietermaritzburg (Patel J sitting as court of
first instance) decided that the appellant was to be held liable for the
paramedics in his employ having transmitted the Human Immunodeficiency
Virus (HI Virus) to the respondent, Ms Franks, at the scene of a collision in
which she was injured and a pedestrian was killed. The appellant was given
leave to appeal by the court below. The conclusion reached by the court
below is wrong for the reasons that follow.

[2] On 31 August 2000 the respondent was a passenger in a vehicle that was
travelling to Durban on the N3 highway. At approximately 18:30, near the
Mooi River Toll Plaza the vehicle collided with a pedestrian, Mr Mthalane, the
deceased, causing his death. The respondent, sitting in the front passenger
seat, suffered fractures to her skull and several lacerations to the left side of
her scalp apparently due to the fact that her head struck the windscreen of the
vehicle.

[3] Two paramedics in the employ of the appellant attended to the respondent
at the scene of the collision and took her by ambulance to the
Pietermaritzburg Medi-Clinic where she received further treatment. After her

discharge from hospital on 5 September 2000 she returned to her home in
Johannesburg. Approximately three weeks later she experienced curious
symptoms and approximately another three weeks later the symptoms were
identified as classic sero-conversion as a result of having contracted the HI
Virus.

[4] The doctors treating the respondent informed her that the window period
for the HI Virus to manifest in sero-conversion symptoms and a positive blood
test is three to six weeks from the date of infection. Calculating backwards
from 10 October 2000, when she was first diagnosed, and adopting a process
of reconstruction and elimination, the respondent concluded that she could
only have been infected as a result of the treatment she received at the scene
of the collision, from the paramedics in the employ of the appellant. It was her
friend, Ms Ritchie, who was a passenger in the same vehicle, who planted the
idea with the appellant that the infection possibly occurred at the scene of the
collision.

[5] The respondent’s cause of action is based on the alleged negligent
causation of bodily harm by the appellant’s employees, acting within the
course and scope of their employment. The respondent pleaded a positive
allegation of fact that the deceased was infected with the HI Virus at the time
of the collision and that the appellant’s employees negligently caused the
transfer of the virus from the deceased’s body to her.

[6] During the hearing of the appeal both counsel were agreed, correctly so,
that it was essential for the respondent’s case to have established the fact
that the deceased was infected with the HI Virus. No direct factual proof was
introduced at the trial, hence the respondent’s counsel relied on four
circumstantial facts and a process of inferential reasoning for his submission
that the court below correctly found that the deceased was infected with the
HI Virus. Firstly, that the deceased had recorded the telephone number of an
organisation called AID for AIDS in his diary. Secondly, that the incidence of
infection with the HI Virus in KwaZulu-Natal was high. Thirdly, that the
collision and treatment received as a result thereof is the only occasion at

which the respondent could have been infected with the HI Virus. Fourthly,
that the evidence of the sequence of events at the scene of the collision
established the opportunity for the respondent’s infection.

[7] The respondent’s attorneys retrieved the deceased’s diary and introduced
it into evidence through the testimony of his father. Mr Mthalane identified the
diary and the handwriting therein as that of his son. The diary contains names
and numbers of individuals and, what appear to be businesses. The names
‘Aid for Aids (Bonitus)’ and a telephone number appear twice in the diary.

[8] The finding by the court below that the deceased was infected with the HI
Virus reads as follows:
‘The plaintiff has at least at a prima facie level made out a case that the deceased may have
had HIV or for that matter full blown AIDS. In his notebook, it was shown in the deceased’s
own handwriting that he had noted various HIV/AIDS helpline numbers. In cross-examination,
Prof. Smith conceded that only two inferences may be drawn from these notations in the
deceased’s diary, namely, that either he was an AIDS Councillor or was himself infected with
the virus. No evidence was presented that he was an AIDS Councillor nor did defendant’s
Counsel canvass this possibility with the deceased’s father when he testified. People are not
in the habit of carrying these numbers unless they have a particular interest. Mthalane having
any academic interest in the matter is far fetched and can be easily discounted.
In my view and in the absence of evidence providing an alternative explanation, the only
reasonable inference in the circumstances is that Mthalane was HIV positive at the time of the
accident. The inference is further strengthened by the incidence of HIV in this province as
testified to by Prof Smith and Dr Webber and alluded to hereinbefore.’

[9] The reasoning of the court below is replete with errors. The conclusion that
it has been shown ‘prima facie’ that the deceased ‘may have had HIV’ does
not satisfy the civil burden of proof. Only one HIV/AIDS helpline number is
contained in the deceased’s diary, repeated twice and not ‘various HIV/AIDS
helpline numbers’. The concession relied upon from the evidence of the
expert witness for the appellant, Prof Smith, on what inferences were to be
drawn from the inscriptions in the deceased’s diary, was inadmissible. Prof
Smith is a specialist virologist, called as a witness to inform the court of,
amongst other things in his field of expertise, the characteristics of the HI
Virus, its viability outside the body, the possible ways of transfer of the virus

and the window period for finding evidence of the virus in the bloodstream
after infection. Whether the deceased was infected with the HI Virus is an
inference sought to be drawn from an inscription in a diary, not from facts
within the expertise of Prof Smith. Hence the inferential reasoning from the
inscription in the diary was within the exclusive domain of the court below and
Prof Smith’s evidence in that regard is inadmissible. To have expected the
appellant to have produced evidence to eliminate some inferences was
tantamount to placing an onus of proof on the appellant. The reverse should
have been done. The respondent was obliged to put the evidence before the
court that warranted the inference sought to be drawn. It was for the
respondent’s counsel to have asked the deceased’s father about the
deceased’s marital status, interests, morality, health and activities. Such
information may have provided the basis for preferring one inference over
another. It was furthermore a simple matter for the respondent’s legal
representatives to have followed up the telephone numbers in the deceased’s
diary and placed the outcome of the investigation before the trial court. That
the deceased may have had an academic interest in the subject matter of the
HI Virus was rejected as ‘far fetched’ without explanation. This rejection is
unfounded in view of the absence of any facts about the deceased. The trial
court’s conclusion that ‘the only reasonable inference in the circumstances is
that Mthalane was HIV positive at the time of the accident’ is untenable.

[10] The difference in standard of proof between criminal and civil litigation
has necessitated the adaptation of the second leg of the well known process
of inferential reasoning stated in R v Blom 1939 AD 188 at 202-203:
‘In reasoning by inference there are two cardinal rules of logic which cannot be ignored: (1)
The inference sought to be drawn must be consistent with all the proved facts. If it is not, the
inference cannot be drawn. (2) The proved facts should be such that they exclude every
reasonable inference from them save the one sought to be drawn.’
In Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147
(A) at 159B-D the adapted process of reasoning was stated as follows:
‘As to the balancing of probabilities, I agree with the remarks of SELKE, J, in Govan v
Skidmore, 1952 (1) SA 732 (N) at p. 734, namely “. . . in finding facts or making inferences in
a civil case, it seems to me that one may, as Wigmore conveys in his work on Evidence, 3rd
ed., para. 32, by balancing probabilities select a conclusion which seems to be the more

natural, or plausible, conclusion from amongst several conceivable ones, even though that
conclusion be not the only reasonable one”.
I need hardly add that “plausible” is not here used in its bad sense of “specious”, but in the
connotation which is conveyed by words such as acceptable, credible, suitable. (Oxford
Dictionary, and Websters’s International Dictionary).’ 1

[11] There is no single other fact about the deceased against which to test the
consistency of an inference sought to be drawn from the possession of a
telephone number of an Aids help-line. The conclusion drawn by the court
below is pure speculation. The mere possession of a telephone number does
not give rise to the probable inferences sought to be drawn by the court
below. Two speculative propositions were suggested during the trial. That the
appellant was infected with the HI Virus and that the appellant was involved in
assistance and support for people infected with the HI Virus. The respondent
preferred the former, arguing that it is improbable that the deceased would
have written down the number of an organisation that he worked for. Equally
valid or invalid speculation does, however, arise. The deceased could have
been a social worker or community conscious individual who referred people
with the HI Virus to the organisation Aid for Aids or he could have been
interested in the subject matter and in search of information. This exercise
illustrates that in the absence of any other facts one can only speculate and
there exists no indication why one speculative proposition is more acceptable
than any of the others.

[12] Counsel for the respondent submitted that if the inscription in the
deceased’s diary is reconciled with the remaining three aspects mentioned in
para 6 the conclusion that the deceased was infected with the HI virus
manifests as the most acceptable of all possible inferences. The trial court not
only drew this inference, but also found that it was strengthened by the
‘incidence of HIV in this province’. The evidence of Prof Smith was that ‘in the
year 2000, 20% of the male population of South Africa was HIV positive’. The

1 See also AA Onderlinge Assuransie-Assosiasie Bpk v De Beer 1982 (2) SA 603 (A) at
614G-A and Scwikkard and Van der Merwe Principles of Evidence 3 ed 2009 p 538 para 30 5
3.

court below accepted the following as common cause in relation to the
statistics:
‘The prevalence of the HIV virus in the male population in KwaZulu-Natal in and around 2000
was according to the experts, and I do not think it to be contravened, was in the region of
30%.’

[13] This finding by the trial court is not being challenged by any of the parties,
but is, however, not reconcilable with an inference that the deceased, a
random member of the society, was part of the statistical 30%. Although the
prevalence of HI Virus infection, relatively speaking, is very high, known to be
of the highest in the world, the incidence is more reconcilable with a
conclusion that the deceased was probably not infected with the HI Virus.
Therefore the incidence percentage of HI Virus infection does not assist the
drawing of an inference that the deceased was infected.

[14] Given the window period for infection to manifest, it is logical to conclude
that the respondent was likely to have been infected towards the end of
August, beginning of September. Uncontested evidence by the respondent
attempted to exclude her infection in any other way than through contact with
infected blood at the scene of the collision. She testified that she had been
faithful to her husband during their 20 year marriage. She could not have
been infected through sexual intercourse as he has tested negatively for the
HI Virus on several occasions after her diagnoses. She had a dental
extraction that required surgery and stitching two days before the collision. To
exclude that as a cause she led the evidence of Dr Spencer, a specialist in
internal medicine and infectious diseases, that the incidence of infection
during such a procedure is very low. Dr Chite, a neuro-surgeon who practices
at the Pietermaritzburg Medi-Cross testified that the prospects of her having
been infected whilst she was treated at the casualty ward of that hospital after
the collision, was also very small.

[15] The evidence tendered to exclude the respondent’s infection during the
dental procedure and the treatment at the casualty ward of the hospital is
general and vague in its terms, unrelated to the specific occasion of the

respondent’s treatment and given by persons who were not present when she
was treated. It contributes little to the specifics of an investigation of a
probable occasion of infection and should not have been elevated to that. The
evidence does, however, establish that, in general terms, the incidence of
infection at dental surgeries and casualty wards of hospitals is small. But that
is also true of the scene of the collision. The individuals who treated the
respondent testified to safe practises adopted to prevent the transfer of
viruses and their evidence exclude the opportunity of transfer of blood from
the deceased to the respondent. Assuming for the moment that the deceased
was infected with the HI Virus, the expert evidence, in general, was that the
virus had limited prospects to remain viable after the collision, considering that
the deceased would have died five to ten minutes after impact and that the
viability of the virus was dependant on factors such as time passed since
death, ambient temperature and viral load. The influence of these factors on a
virus outside the deceased’s body in congealed blood was even greater and
the chances of infection dependant on the quantity of congealed blood
transferred. The evidence was that the ambulance arrived approximately 40
minutes after the collision. Prof Smith was of the view that the HI Virus would
not have remained viable outside the body for longer than ten minutes. Prof
Martin, a virologist, testified that the virus could have survived for longer, but
the length of time is uncertain. At best, the evidence shows that the chances
of the virus surviving under the circumstances that operated at the scene of
the collision and for the respondent to have been infected in the way that she
contends, are as small, if not smaller, than at the average dental surgery or
casualty ward.

[16] The trial court made credibility findings about the evidence of witnesses
that testified to events after the collision and arrived at the conclusion that
credible evidence on behalf of the respondent showed that blood from the
deceased was transferred to the respondent by the appellant’s employees.
This is an irrelevant fact if it was not established that the deceased was
infected with the HI Virus. However, the court below used this factual finding
to assist in drawing the inference that the deceased was infected with the HI
Virus, a conclusion defended by the respondent. This reasoning is illogical as

it begs the question and amounts to the drawing of an inference from an
inference. Even if the reasoning was sound, the appellant’s challenge of the
trial court’s evaluation of the evidence and the conclusions arrived at should
be considered.

[17] An appeal court is slow to interfere with factual findings based on
credibility, but if they are plainly wrong, the appellate court is at large to
disregard the findings affected by the misdirection and arrive at its own
conclusion.2 The discussion that follows will show that this court is at large to
disregard the rejection by the trial court of the evidence of the appellant’s
witnesses.

[18] The trial court accepted the evidence of the respondent’s friend Ritchie.
The evidence of the two witnesses for the appellant, Mr Mahabeer and Mr
Dayal, was rejected. Mahabeer was in the employ of Toll Road Concessions
(Pty) Ltd at the time, tasked to provide roadside assistance and first aid to
stranded motorists. He held a basic life support qualification which allowed
and enabled him to provide first aid. Dayal was one of the two paramedics in
the employ of the appellant that arrived on the scene and attended to the
respondent.

[19] The essential difference in the evidence of Ritchie on the one hand and
Mahabeer and Dayal on the other, involves the investigation of an opportunity
for blood from the deceased’s body to have come into contact with the
respondent’s open head wound. The court below accepted Ritchie’s evidence
in the following terms:
‘Her evidence was that the ambulance personnel, i.e. the defendant’s employees, stopped at
the body of the deceased before they came to assist the plaintiff. She could not see what they
were doing to the deceased, but saw that they were “working on him”. She assumed that they
were checking for vital signs. They also removed the body from the road surface. They
thereafter came to the plaintiff and administered treatment to her. Part of this treatment was
an attempt to put an IV-line in the plaintiff’s arm. They also put a bandage on the plaintiff’s
head after manipulating the wound.’

2 R v Dhlumayo 1948 (2) SA 677 (A) at 705-706 and the wealth of subsequent cases that
confirm the principle.

[20] Mahabeer testified that he was the first person to arrive on the scene of
the collision. He put a dry dressing on the respondent’s head wound, without
‘manipulating the wound’. The effect of the rejection of Mahabeer’s evidence
was that the trial court did not accept that he was on the scene and attended
to the respondent. Objective evidence introduced at the trial, without any
objection, corroborates that Mahabeer was at the scene. A so-called MVC
Report, completed by the staff in the control room that notified Mahabeer of
the collision and summonsed him to attend, was handed into evidence. This
document supports Mahabeer’s evidence that he was informed of the collision
at 18:40 and arrived on the scene at 18:42. More importantly, it also contains
other information supplied by Mahabeer at the time from the scene of the
collision to the control room. He confirmed this information during his
evidence, namely that the breakdown service arrived at 18:46, the police at
19:05 and the ambulance of the appellant at 19:30.

[21] Dayal corroborated Mahabeer’s evidence when he testified that he put a
dry bandage on the respondent’s head wound over a smaller one that was
already in place. Only a conspiracy to be dishonest could account for the
evidence by Mahabeer and Dayal. It was never suggested to either of them
that their evidence was the result of such a conspiracy.

[22] Criticisms of the evidence of Mahabeer and Dayal were advanced on
behalf of the appellant. Inconsistencies in their evidence are on lesser issues
and to be expected of witnesses testifying almost five years after the event.
There are no indications inherent in the evidence of the two witnesses why
their evidence should be rejected. The trial court’s list of criticisms of their
evidence does not go to the root of their evidence and is equally applicable to
the evidence of Ritchie. They all gave evidence long after the event and, to
some degree, reconstructed the occasion. Mahabeer and Dayal were assisted
by documentation completed at the time. They were also assisted by the
routine procedures always adopted by them in the performance of their
functions. Although this collision was an event that stood out for Ritchie as
unusual, she was involved in the collision and could not have been

emotionally untouched. These factors are not determinative of the reliability of
the evidence of any of the witnesses and should not have motivated credibility
findings.

[23] Dayal’s evidence of the sequence of events was that he and his
colleague arrived on the scene and first treated the respondent whilst wearing
new gloves, thereafter and before loading her into the ambulance he changed
his gloves and went to the deceased, checked the deceased’s vital signs,
pronounced him dead, returned to the ambulance, discarded the gloves he
used when he checked the deceased’s vital signs, loaded the respondent into
the ambulance and left. Both Mahabeer and Dayal’s evidence therefore
exclude any opportunity for the actual transfer of blood from the deceased to
the respondent.

[24] Ritchie’s evidence was inherently no better than that of the appellant’s
witnesses. However, the court below ignored crucial contradictions between
the respondent’s pleadings and Ritchie’s evidence, the only witness for the
respondent of the events on the scene after the collision. In her particulars of
claim the respondent pleaded:
‘The emergency medical treatment performed by the said employees of the Defendant as set
out in paragraph 7 above, was performed on the Plaintiff directly after the said employees
had:

8.1
carried the body of Mthalane from the surface of the freeway where it was
lying to the side of the freeway;

8.2
attempted to resuscitate Mthalane and/or administered emergency medical
treatment to him, which treatment necessitated physical contact between the said employees
and the blood of the body or corpse of Mthalane;

8.3
applied dressings and medication to the right leg of Mthalane where it had
been amputated.’

[25] The pleaded version was not supported by any evidence on behalf of the
respondent. This significant discrepancy in the respondent’s case motivated
an unopposed application for an amendment at the end of the trial to insert a
new paragraph 8.4 into the particulars of claim in the following terms:
‘8.4
touched the body of the deceased to look for vital signs.’

[26] If any witnesses’ reconstruction of the events led to inconsistencies that
affected the reliability of a version, it was that of Ritchie. There is no support in
the evidence for a finding that there was an opportunity at the scene of the
collision, for transfer of blood from the deceased to the respondent’s open
wound.

[27] The respondent did not prove her case and should not have succeeded in
the court below. Therefore the following order is made:
The appeal is upheld with costs, including the costs of two counsel.
The order by the court below is set aside and replaced with the
following:

‘The plaintiff’s action is dismissed with costs, including the costs of two
counsel.’

_________________
S SNYDERS
JUDGE OF APPEAL

APPEARANCES:

For appellant:
Y N Moodley SC (with him T S I Mthembu)

Instructed by: The State Attorney, Kwazulu-Natal;

The State Attorney, Bloemfontein.

For respondent:
D T v R du Plessis SC

Instructed by: Hauptfleish Attorneys, Johannesburg;

McIntyre & Van Der Post, Bloemfontein.

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.

* * *

Ms Franks suffered the misfortune of contracting HIV. She believed it happened at
the scene of a collision that she was involved in. The vehicle that she was
passenger in collided with a pedestrian on the N3 highway near the Mooi River Toll
Plaza. The pedestrian was killed and she suffered, amongst other injuries,
lacerations to her scalp. She was treated on the scene by an employee of Tolcon
and paramedics in the employ of the respondent. According to information available
to her the respondent’s paramedics dealt with the deceased pedestrian before they
treated her and she presumed that they transferred HIV infected blood from him to
her. She was successful in her action against the respondent in the Pietermaritzburg
High Court.

However, today the Supreme Court of Appeal overruled that decision and concluded
that Ms Franks did not manage to place reliable evidence before the court to support

her presumption. Fundamental to the failure of her appeal was the complete
absence of any evidence that the deceased was infected with HIV.