THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Non-Reportable

Case no: 928/2017
In the matter between:

MEC FOR HEALTH, WESTERN CAPE
APPELLANT

and

SINETHEMBA QOLE obo IMINATHINKOSI QOLE
RESPONDENT

Neutral citation:  MEC for Health, Western Cape v Qole
(928/2017) [2018] ZASCA 132 (28 September 2018)

Coram:
Lewis, Ponnan, Majiedt, Dambuza and Mathopo JJA

Heard:
16 August 2018

Delivered:
28 September 2018

Summary:
Delict – medical negligence – onus on plaintiff to prove damage causing
event – reverse reasoning impermissible - inference of negligence may only be drawn
where a negligent event is the most plausible inference.
Expert evidence – expert opinion must be logical - probative value of expert opinion
evidence depends on reasons furnished therefor.

_____________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Western Cape Division of the High Court, Cape Town (Le Grange J
sitting as court of first instance):

1 The appeal is upheld with costs, such costs to include those consequent upon the
employment of two counsel.
2 The order of the Western Cape Division of the High Court is set aside and substituted
with the following order:
‘The plaintiff’s claim is dismissed with costs, such costs to include those consequent
upon the employment of two counsel’.
______________________________________________________________________

JUDGMENT
______________________________________________________________________

Dambuza JA (Lewis, Ponnan, Majiedt and Mathopo JJA concurring):

Introduction
[1] This appeal, with the leave of this court, relates to heartrending events which
took place in 2011. On 7 December a baby girl, Baby Iminathi Qole (Iminathi), was born
at Paarl Hospital in the Western Cape. At birth she presented with clinical features of
spastic quadriplegic cerebral palsy. This had been caused by damage to her brain.

[2] In May 2013 the respondent, Iminathi’s mother, instituted an action for damages
in the Western Cape Division of the High Court, Cape Town (the high court), against the
appellant, the Member of the Executive Council for Health in the Western Cape (the
MEC). Her claim was based on negligent medical treatment to herself and the baby by
health services employees employed at various health State facilities which she

attended during her pregnancy and at the time of the baby’s birth. The claim was
defended by the MEC.

[3] On the first day of the trial an order was granted by the high court separating the
issues of liability from the determination of the quantum of damages. The trial then
proceeded on the issue of liability. The high court found that the injuries suffered by the
baby were a direct consequence of the negligent conduct of the MEC’s employees. The
court ordered the MEC to pay 100 per cent of proved or agreed damages. It is against
this order that the MEC appeals.

Background Facts
[4] The following events were not in issue before the high court. On 27 July 2011 the
respondent visited Zwelihle Clinic in Hermanus. There, her suspicion that she might be
pregnant was confirmed. The nursing staff told her that she was five months into her
pregnancy and that her anticipated date of delivery was 16 November. That initial visit
was followed by further routine antenatal clinic visits, the first of which was on 24
August.

[5] On 20 September a medical examination revealed that the respondent had
contracted a urinary tract infection (UTI). An antibiotic (Amoxicillin) was prescribed and
she was told to return to the clinic two weeks later. The infection was still persistent
when she returned to the clinic on 4 October. Treatment was extended and she was
advised to return to the clinic a week later, on 10 October, for ‘urine check & Dr’s
opinion’. On her return her urine still had nitrites despite continued treatment. She was
told to return to the clinic two days later.

[6] Although leucocytes were found to be present in her urine when she returned to
the clinic on 12 October, she was not experiencing any difficulty or pain when
discharging urine (no dysuria) and was ‘asymptomatic’. The doctor ordered that her
urine sample be sent for microscopy, culture and sensitivity testing (MST). There is no
record of the result of this investigation in the medical records.

[7] Two weeks thereafter, on 16 November, her due date, the respondent returned
to the clinic. After assessment by a doctor she was told to return on 23 November. By
then the UTI had resolved. Between the 16 and 23 November she relocated from
Hermanus to Mbekweni Township in Paarl. Consequently, on 23 November she
attended the Phola Park Clinic in Paarl. There she was told, without assessment, to
return to the clinic the following Tuesday, 29 November, that being the next antenatal
clinic day. On her return to that clinic, on 29 November, her urine showed no
abnormalities and she was referred to Paarl Hospital for the following day, as she was
assessed to be post mature.

[8] On 30 November the respondent’s urine had leukocytes, but she had no dysuria.
A Non Stress Test (NST)1 returned a ‘non-reactive’ result. Dr Bilson, who attended to
her, instructed that a second NST be done and that if the result was reactive the
respondent was to return in a week for a follow up assessment. If it was non-reactive
she was to be admitted to the labour ward. The test was redone on the same day and
was assessed, mistakenly, as reactive. The respondent was told to return in a week.
When she did so, on 7 December, the NST again returned a non-reactive result with a
‘poor baseline variability’.2 She was admitted to hospital and labour was induced with
Misoprostol inducing cream (also referred to as Cytotec). At 23h15 Iminathi was born.

[9] At birth the baby presented with microcephaly.3 Her head circumference of
32cm was abnormally small compared with her above average length of 54cm and
normal weight 3,48kg. She had sustained a cephalohaematoma4 and suffered an intra
cerebral bleed. Her blood pH was 7.22. Her Apgar score5 at birth measured four; at five
minutes after birth it was seven, and at ten minutes after birth it had improved to nine.

1 This is an antenatal recordal of a foetal heart rate pattern. According to the glossary of terms supplied
by the MEC, the result of the test is ‘reactive’ ‘if there are two or more foetal heart rate accelerations
within a 20-minute period, with or without foetal movement discernible by the woman’. And it is ‘non-
reactive’ if there is ‘a lack of sufficient foetal heart rate accelerations over a 40-minute period’. The
evidence was that the acceleration should be 15 beats a minute. The acceleration is then increased over
15 seconds, to at least 20 beats per minute.
2 The Cardiotography (CTG) Scan, which traces the baseline fetal heart rate, recorded a baseline rest
rate of 130 bpm. It is said to be normal falls within the range of 120 to 160 beats per minute.
3 Abnormally small head. A congenital condition associated with incomplete brain development.
4 A tumor or swelling filled with blood beneath the periosteum (a specialised connective tissue that covers
all bones).
5 A scoring system doctors and nurses use to assess newborns at one minute and five minutes after birth.

The medical staff recorded that the baby had suffered Hypoxic Ischaemic
Encephalopathy (HIE), a brain injury that occurs when an infant’s brain does not receive
sufficient oxygen and blood. Damage to Iminathi’s brain had rendered her a spastic
cerebral palsy quadriplegic. The following day she started having seizures.

[10] By twelve days after birth Iminathi’s head had enlarged to 38cm. A sonar showed
hydrocephalus.6 She was transferred to Tygerberg Hospital. The results of a CTG7 scan
done at that hospital and the radiologist report confirmed the HIE and revealed cortical
laminar necrosis with bilateral hygromas (cysts). These results are discussed more fully
later in this judgment. Iminathi was discharged from Tygerberg Paediatrics Hospital a
day later and returned to Paarl Hospital from where she was discharged on 21
December.

Pleadings
[11] In the summons the respondent’s claim was based on various acts of alleged
negligence by the medical staff during her pregnancy, at the time of birth, and after
birth. Paraphrased, the allegations were that they failed to perform investigations
necessary for the proper detection of danger to the child and to timeously intervene by
performing a Caesarean Section (c-section). They also failed to monitor the
respondent’s labour contractions and the baby’s heart rate. After delivery they failed to
place the baby under the cooling-off system due to lack of beds at Paarl Hospital. As
will be seen below, the evidence led on behalf of the respondent somewhat extended
the ambit of the alleged grounds of negligence.

[12] In respect of the antenatal period, the allegations of negligence related to three
periods. Firstly, weeks 32 to 34 of the respondent’s pregnancy, when she was suffering
from the UTI,8 secondly, on 30 November, when the two NST tests were done, and
thirdly, during the week following 30 November until 7 December when, due to non-
intervention, the respondent’s pregnancy was prolonged. In relation to 30 November, it
later became evident that the assessment of the repeat NST done on that day as

6 A condition in which fluid accumulates in the brain.
7 Supra fn 2.
8 This is the period starting on 24 September.

reactive was incorrect. The test had, in fact, returned a non-reactive result. The
respondent’s contention was that the incorrect recordal was further negligent conduct
which resulted in her pregnancy being prolonged, thus further increasing the risk of
harm to the baby.

[13] Although in the summons the negligence during delivery was pleaded as an
alternative to the negligence during the antenatal period, the evidence was presented in
such a manner that composite consideration of all the alleged acts or omissions was
contended for. The respondent persisted in this approach on appeal before us. The
MEC denied any negligence on the part of the employees.

Issues
[14] The issues were the determination of the damage causing occurrence, when
such damage occurred, whether there was negligence on the part of the MEC’s
employees and if so, the causal link, if any, between the negligent conduct and the
injury occasioned to Iminathi.

[15] The respondent relied on three expert witnesses: Prof Andronikou, a radiologist
who performed a cranial MRI on the baby on 17 September 2013, Dr Mtsi, an
obstetrician and gynaecologist, then a consultant at the Chris Hani Baragwanath
Hospital, and Dr Reid, a clinical neurologist and part-time lecturer in neurology at
Tygerberg and Groote Schuur Hospitals. The MEC relied on two witnesses: Prof van
Toorn, a paediatric neurologist at Tygerberg Hospital and a part time lecturer at the
University of Stellenbosch, and Prof Odendaal, a gynaecologist and obstetrician in
private practice, also employed as a part-time lecturer at Stellenbosch University.

The evidence – Joint minute by Dr Mtsi and Prof Odendaal
[16] Prior to the start of the trial Dr Mtsi and Prof Odendaal concluded a joint minute.
They agreed that the respondent should not have been sent home after 30 November
when the NST results were non-reactive. Instead a c-section should have been done on
that day. The different reasons held by each for this opinion are discussed below. They
also agreed that labour should not have been induced on 7 December, when the NST

was non-reactive. Furthermore, the CTG monitoring of the baby should have continued
during delivery because of the assessment of poor variability. They agreed that the
recordal of observations during labour was poor.

[17] Disagreement related, firstly, to Dr Mtsi’s acceptance of the anticipated date of
delivery (16 November) as recorded on the respondent’s clinic card. Prof Odendaal was
of the view that, deriving from the respondent’s last menstruation, on 15 February, the
correct date of delivery was 22 November.

[18] Further, according to Dr Mtsi an NST done on 23 November was assessed as
non-reactive. Prof Odendaal could not find such a test on the medical records. At the
trial Dr Mtsi admitted that her reference to such a test done on this day was erroneous.

[19] Lastly, it was Dr Mtsi’s opinion that, had the baby been delivered by a c-section
on 7 December, it would have been saved from harm or the extent thereof would have
been ameliorated. Prof Odendaal’s opinion, however, was that the damage to the brain
had occurred weeks prior to induction of labour. The c-section would not have improved
the baby’s condition as it was already severely microcephalic when labour was induced.

[20] At the trial the respondent gave evidence. As would be expected, apart from
narrating the history of her pregnancy and delivery, as set out above, she could not say
much about the cause of the brain injury to her baby or when such injury occurred. Only
two of her qualified experts testified on her behalf: Dr Mtsi, and Dr Reid. Both Prof van
Toorn, and Prof Odendaal testified on behalf of the MEC.

Negligence during the antenatal period 20 September – 12 October
[21] Dr Mtsi’s opinion, based on a consultation she had had with the respondent, and
examination of the respondent’s medical records, was that when the UTI persisted until
4 October, further investigations should have been done to determine the cause thereof.
An MST test should have been done as early as 4 October, when the infection still
persisted. Further, on that day the respondent should have been admitted into hospital
instead of simply continuing with the antibiotics. This would have provided a more

reliable diagnosis of the problem. At week 34 of the pregnancy, a c-section should have
been done as the baby could have survived outside the hostile uterus. Failure to take
these steps constituted substandard medical treatment by the medical staff. They
ignored ‘signals of something having gone wrong’.

[22] Prof Odendaal, on the other hand, was of the opinion that although infection
during pregnancy could result in cerebral palsy, it was improbable that the UTI could
have had such a result. He referred to specific medical literature of a study conducted in
this regard, the results of which revealed no link between UTI during pregnancy and
cerebral palsy developing in a uterus. This evidence was undisputed.

30 November
[23] As stated above, two NST tests were conducted on this day. The first result was
flat, showing very low beat to beat variability. The second appeared to show significant
improvement from the first; the baseline variability appeared to have improved
compared to the first. This is the result that was incorrectly recorded. Dr Mtsi’s evidence
was that were it not for the negligent misreading of the repeat test, a c-section could
have been performed to save the baby.

[24] Prof Odendaal’s opinion was that even if a c-section had been performed on this
day it would not have prevented the injury as the brain damage and microcephaly had
already occurred. But both Dr Mtsi and Prof Odendaal held the view that the respondent
should not have been sent home on this day.

[25] Much of the MEC’s case regarding the microcephaly and brain damage is based
on Prof van Toorn’s opinion drawn from the medical records of the CTG scan done at
Tygerberg Hospital. The relevance of this opinion straddles the period starting from
week 34 of the pregnancy to delivery of the baby on 7 December.

7 December
[26] Again, as already stated, both Dr Mtsi and Prof Odendaal were of the opinion
that a c-section should have been done in view of the non-reactive NST. Both criticised

the sparsity of recordings of the progress of the respondent’s labour and the baby’s
heart rate. However, both Prof Odendaal and Prof van Toorn insisted that the
microcephaly had already occurred by this time.

[27] Professor van Toorn gave detailed evidence of microcephaly development. He
explained that a significant injury to the brain is followed by swelling, which subsides a
day or so later and is accompanied by the death of some of the brain cells, leading to
loss of volume of the head. This process happens over weeks. Where brain injury is
sustained during delivery, the decline in head growth could be noticeable in the third to
fourth month.

[28] Against this background, his opinion was that, given the extent of shrinkage of
Iminathi’s head, it was unlikely that it was a result of an occurrence during delivery or a
week before then. The CTG scan done after day 12 of the baby’s birth showed severe
cortical laminar necrosis (loss of the white brain matter). The whole brain was already
severely shrunken. Fluid had collected and filled up the gaps around the brain where
the white matter had been, hence the hydrocephaly.

[29] Prof van Toorn also explained that brain injury (resulting in death of brain cells) is
usually visible on the CT scan at two weeks. At that stage the necrosis imaging
presents as lines on the scan. It then peaks at one to two months after the insult. In this
case, at 13 days after birth, the scan already showed ‘global white matter hypodensity’
(whole layers of cortical laminar necrosis), which was out of keeping with an injury at
birth. Such extensive brain damage could only have developed over four to five weeks.
On the other hand if there had been an intrapartum insult the head circumfirance would
have been normal with a decline only becoming evident some months later. Further, the
presence of gliosis (scar tissue) shown on the MRI scan was an indication that the insult
occurred after 34 weeks as no scar tissue could have been formed prior to that time.

[30] In addition, Prof van Toorn referred to four internationally accepted criteria for
diagnosis of an intra partum hypoxic event were met in this case. Only two of these
were met in this case, the first being metabolic acidosis with blood acidity of less than

pH 7 within the first two hours of birth, resulting from the lack of oxygen during birth. In
this case Iminathi’s blood pH of 7.22 at birth, was inconsistent with intrapartum brain
injury. The second criterion – symptoms of encephalopathy at birth, and the third –
cerebral palsy of a specific kind, were met. The fourth – the exclusion of other causes of
brain injury was also not met because an ultrasound done on day 12 after the baby’s
birth showed blood breakdown products or remnants of blood clots. This was evidence
of previous bleeding in the baby’s brain or the HIE. Such bleeding could also have
caused lack of oxygen and breakdown of the brain cells leading to the brain damage.

[31] Professor van Toorn also considered that several other factors militated against
brain injury during delivery. The first was that there was no ‘sentinel’ (trigger) event
during birth.9 Further, the improvement in the Apgar score was uncharacteristic of
intrapartum brain injury where the norm is that the five minute Apgar score remains at 0
to 3.

The high court’s findings
[32] In upholding the respondent’s claim the high court found that the defendant’s
medical staff breached their legal duty towards the respondent and the baby:
‘by failing to assess, manage and treat them with the necessary degree of care, skill and
diligence as expected of reasonable medical practitioners and or nursing staff in their position,
particularly on 30 November 2011 and the subsequent induction on 7 December 2011.’

[33] Apart from this general conclusion the high court made no factual finding as to
the cause of the brain damage. Nor did it set out explicitly the reasons for preferring the
evidence of Dr Mtsi to that of the other expert witnesses. It also made no finding related
to the UTI.

[34] Although the high court did not make a specific factual finding, it seemed to
incline in favour of a conclusion that the brain damage to the baby occurred during birth.
It reasoned that Prof van Toorn had not been ‘absolutely certain’ that the injury to the

9 The Professor gave an example of a mother suffering a cardiac arrest or having high or low blood
pressure, or foetal bradychardia.

patient’s brain occurred prior to the start of labour. The high court remarked that there
was a likelihood that it occurred during the onset of birth.

[35] It also found weighty the ‘diagnoses’ (contemporaneous notes) made by
clinicians at Paarl and Tygerberg Hospitals, that the baby had suffered ‘birth asphyxia’.
These notes, the high court reasoned, belied the conclusion that the injury occurred
before labour as postulated by Prof Odendaal and Prof van Toorn. Instead, they
supported Dr Mtsi’s opinion.

[36] The absence of a true factual finding as to the actual cause of the damage was
not raised in the appeal. The MEC’s approach was to rather rely on the absence of a
causal link between its employees’ alleged acts and/or omissions and the injury (and
sequelae) suffered by the baby.

Discussion
[37] It is trite that she who asserts a damage causing event must prove it. The legal
duty owed by the medical staff at the various health facilities to the respondent and her
baby entailed that they adhere to the general level of skill and diligence possessed and
exercised at the time by members of the branch of the profession to which they
belonged.10 They had no duty to provide the highest possible degree of professional
skill. Only reasonable care and skill was required.11 The respondent had to prove,
through credible and persuasive evidence that the doctors and nurses failed to adhere
to the required standards.

[38] The opinion of the medical experts was central to the determination of the
required level of care and whether there was a breach of it. The requirement in
evaluating such evidence is that expert witnesses support their opinions with valid
reasons. Where proper reasons are advanced in support of an opinion, the probative
value thereof is strengthened.12
‘It is not the mere opinion of the witness that is decisive but his ability to satisfy the Court that,

10 Van Wyk v Lewis 1924 AD 438 at 444.
11 Mitchell v Dixon 1914 AD 519 at 252.
12 Schwikkard & Van der Merwe, Principles of Evidence 4 ed at 103.

because of his special skill, training and experience, the reasons for the opinion which he
expresses are acceptable.’13
In Michael v Linksfield Park Clinic (Pty) Ltd14 this court held that:
‘The court is not bound to absolve a defendant from liability for alleged negligent medical
treatment or diagnosis just because evidence of expert opinion, albeit genuinely held, is that the
treatment or diagnosis in issue accorded with sound medical practice. The court must be
satisfied that such opinion has a logical basis, in other words that the expert has considered
comparative risks and benefits and has reached a “defensible conclusion”’.

[39] The first difficulty with Dr Mtsi’s evidence is that she could not allude to a specific
risk associated with the UTI that could have caused cerebral palsy. It was common
cause that UTI is common in pregnant women. In her medico-legal report she had
referred to its poor response to treatment, without highlighting it as a problem in the
respondent’s management as she did in her evidence. She also admitted that the fact
that by 4 October the urine still had nitrates did not necessarily mean that the
respondent was not responding to the Amoxicillin treatment. In any event, the UTI
problem had resolved by 16 October. Significantly, she could not dispute Prof
Odendaal’s evidence that there is no study linking UTI to cerebral palsy and that the
limited instances in which infection during pregnancy results in cerebral palsy are those
in which the infection occurs in the placenta and its membranes. On the common cause
facts, that is not what happened here.

[40] On her own evidence Dr Mtsi could not understand those portions of the records
which were written in Afrikaans. She relied on the respondent in this regard. All of this
probably affected her comprehensive understanding of the medical record, and the
admitted to factual errors in her report.

[41] Further, there was no factual basis for her opinion that if the baby had been
delivered during the period 32-34 weeks it would have been saved from harm,
particularly considered against Prof Odendaal’s evidence that it is best to allow a baby

13 Menday v Protea Assurance Co Ltd 1976 (1) SA 565 (E) at 569B.
14 Michael v Linksfield Park Clinic (Pty) Ltd [2001] 1 All SA 384 (SCA) para 37.

to remain in utero to full term and that delivery of a baby prematurely was not a decision
taken lightly.

[42] In relation to her opinion that the microcephaly was not picked up on the two
occasions when scans were done on the 30 November, Prof Odendaal disagreed with
her opinion that an ultra sound would have led to detection of the problem. His opinion
was that there would have been no previous head measurement to compare with the
measurement done at that stage. It was common cause that the respondent had missed
the 18 week routine scan. Her first clinic visit was during the 24th week. In any event the
evidence was that by that stage (30 November) the damage had already been done.

[43] Prof van Toorn was cross examined extensively on entries made by the staff at
the paediatric ward. The first was the diagnoses of ‘birth asphyxia’ on Iminathi’s hospital
card. The contention on behalf of the respondent was that the notes were a reliable
diagnosis of asphyxia during delivery and could not be ignored, particularly in the light of
lack of the evidence by the authors thereof. Much was made of the failure by the MEC,
to call these witnesses. Prof van Toorn’s evidence in this regard was that loose use of
the term ‘birth asphyxia’ was a common occurrence amongst medical staff at Tygerberg
Hospital. Further, those who made the diagnosis did not possess his expertise and had
had no access to the information which became available to him after the CT scan was
done. Hence the note on the same hospital records by those doctors that the baby
should be referred to him for further medical attention.

[44] In addition, Dr Mtsi admitted that the term ‘birth asphyxia’ was non-descriptive in
relation to the timing of the damage causing event; that it can mean antenatal,
intrapartum or postpartum and that the terms ‘birth asphyxia’ and ‘perinatal asphyxia’
were used interchangeably in the medical records at Tygerberg Hostpital.

[45] The crux of Prof van Toorn’s opinion was that, on a consideration of all the
evidence, the baby suffered an antenatal injury at about 34 weeks into the pregnancy or
at least some weeks before labour was induced. Dr Reid agreed in the main with Prof
van Toorn’s opinion. He accepted, for example, that if the initial blood sample, from

which the baby’s pH level was taken within two hours of birth, and the pH level was
7.22, then Prof van Toorn’s opinions were entirely correct. As for the rest, Dr Reid’s
evidence was limited to an interpretation of existing medical records. Regarding the
timing of the brain injury he postulated two scenarios, antenatally and intrapartum. In his
view, both scenarios were perfectly plausible, although he personally favoured an
intrapartum asphyxial insult. Moreover and in any event, his field of expertise was adult
neurology, unlike Prof van Toorn, who was a paediatric neurologist.

[46] The second aspect on which Prof van Toorn was cross examined at length
related to notes made by Dr Friedericks, a paediatric registrar, that the delivery ‘look[ed]
like ventouse delivery (using a vacuum); knob on head; has not cried yet’. The
contention was that the ventouse delivery of the compromised baby contributed to the
brain damage.

[47] Dr Mtsi’s persistence that the delivery was by means of ventouse ignored the
records from the obstetrics ward staff, that this was a normal vaginal delivery. It also
ignored the fact that the entry by Dr Friedericks was, in its own terms, conjectural. Prof
Odendaal provided a logical response that if there had been ventouse delivery, the
respondent would have remembered being placed in the lithotomy15 position to facilitate
such delivery. She had made no reference to that fact. Further, Prof Odendaal’s opinion
was that even then it was unlikely that such a procedure would have affected the
outcome, as microcephaly would not have developed over a week.

[48] The opinion evidence of Prof Odendaal and Prof van Toorn was founded on
clearly established facts. It was logical and well reasoned.

[49] Whilst it must be accepted that on the evidence the notional reasonable medical
practitioner in the place of the medical staff who attended to the respondent at Paarl
Hospital would not have sent her home on 30 November, the evidence shows that the
damage to the baby’s head had probably already occurred by that time. Dr Mtsi

15 The lithotomy position is a medical term referring to a common position for surgical procedures and
medical examinations involving the pelvis and lower abdomen, as well as a common position for
childbirth.

conceded that the foetus was probably already compromised by these date. There was
therefore no causal link between the failure to intervene and the damage that was
occasioned. The same conclusion must be reached in relation to reliance on alleged
negligence subsequent to the 30 November.

[50] In the end, not only the cause of the damage remained unidentified but also its
timing. The fact that harm had been occasioned was not, on its own, proof that the
medical staff had caused it, or that they had done so negligently, or even that it had
resulted in the brain injury. In Goliath v Member of the Executive Council for Health,
Eastern Cape16 this court warned against reverse reasoning of this kind as follows:
‘… to hold a doctor negligent simply because something had gone wrong, would be to
impermissibly reason backwards from effect to cause.’

[51] Consequently the following order is made:
1 The appeal is upheld with costs, such costs to include those consequent upon the
employment of two counsel.
2 The order of the high court is set aside and substituted with the following order:
‘The plaintiff’s claim is dismissed with costs, such costs to include those consequent
upon the employment of two counsel’.

_________________
N Dambuza
Judge of Appeal

16 Goliath v Member of the Executive Council for Health, Eastern Cape (085/2014) [2014] ZASCA 182;
2015 (2) SA 97 (SCA) at para 9. Citing with approval Medi-Clinic Limited v Vermeulen (504/13) [2014]
ZASCA 150; 2015 (1) SA 241 (SCA) at para 27.

APPEARANCE

For Appellant:

A Sholto-Douglas SC (with him S K Witten)

(Heads also prepared by H Bawa SC)

Instructed by:

State Attorney, Cape Town

State Attorney, Bloemfontein

For Respondent:

D B Ntsebeza SC (with him Z L Mapoma)

Instructed by:

Thamsanqa Phillips Attorneys, Cape Town

Ponoane Attorneys, Bloemfontein