THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 211/2018
In the matter between:

RABIA HELGA BEUKES
APPELLANT

and

DR SAMUEL JOHANNES SMITH
RESPONDENT

Neutral citation:  RB v Smith (211/2018) [2019] ZASCA 48 (01 April 2019)

Coram:
Navsa AP, Zondi, Dambuza and Mocumie JJA and Mokgohloa AJA

Heard:
22 February 2019

Delivered:
01 April 2019

Summary:
Delict – claim for damages based on failure to obtain informed consent to
medical procedure for hernia repair – factual finding of trial court on whether the patient
was informed, confirmed – no dispute on material risks inherent in competing surgical
procedures – information given to patient met the required standard – common cause
that there was no negligence in the performance of elected surgery – appeal dismissed

_____________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Gauteng Division, Pretoria (Tuchten J sitting as court of first instance):

The appeal is dismissed with costs.
______________________________________________________________________

JUDGMENT
______________________________________________________________________

Dambuza JA (Navsa AP, Zondi, Dambuza and Mocumie JJA and Mokgohloa AJA
concurring):

Introduction
[1] This appeal is about whether the respondent, Dr Samuel Smith (Dr Smith), a
surgeon who performed a laparoscopic1 hernia repair on the appellant, Mrs Rabia Beukes
(Mrs Beukes) is liable for damages for the alleged failure to provide the appellant with
sufficient information so as to enable her to give informed consent for that surgery. Mrs
Beukes instituted a claim for damages against Dr Smith, alleging that the doctor
negligently omitted to inform her that the hernia repair could be done by way of a
laparotomy2 procedure. Such failure, so she contended, caused her to give uninformed
consent to the laparoscopy, and resulted in her suffering damages as a result of colon
perforation during that procedure, which, it was asserted, was less risky. Mrs Beukes’
claim was dismissed by Tuchten J in the Gauteng Division of the High Court, Pretoria
(high court). This appeal is with leave of the high court.

1 Laparoscopy is a medical procedure in which examination of the interior of the abdomen is done my
means of a laparoscope. See Dorland’s Illustrated Medical Dictionary 25 ed. Small incisions are made to
introduce a camera which allows the surgeon to see where to introduce the necessary instrumentation.
2 According to Dorland’s Medical Dictionary, Laparotomy is “surgical incision through the flank” or
“abdominal section at any point.” It may be a long incision from the sternum to the pubic area. It is generally
accepted that Laparoscopy is less intrusive than open surgery. Compare with fn 1.

Background
[2] The following events preceded the high court proceedings. During November 2011
Mrs Beukes was admitted to Victoria Hospital in Mahikeng, complaining of abdominal
pain and distention. She was treated conservatively and Computer Tomography (CT)
scans were taken. From the images, Dr Kibowa, the treating doctor at Victoria Hospital,
identified a cystic mass lesion in the right iliac fossa (pelvic groove), an ovarian cyst or
abscess and a femoral hernia in the right inguinal (groin) region. Dr Kibowa referred Mrs
Beukes to Dr Smith, a general surgeon practising from the Life Anncron Hospital in
Klerksdorp, as there were no specialist surgeons in Mahikeng.

[3] Mrs Beukes attended Dr Smith’s consulting rooms on 21 February 2012. She
informed Dr Smith that she had experienced the abdominal pain for about a week, but
that it had worsened in the three day period since she had been seen by Dr Kibowa.
Having considered the referral letter from Dr Kibowa, together with Mrs Beukes’ medical
history, which included three previous operations, and the report from the radiologists on
the Axial and CECT3 scans of Mrs Beukes’ abdomen and pelvis, Dr Smith made a
differential (provisional) diagnosis of ‘sub-total bowel obstruction secondary to previous
surgery, an ovarian cystic mass, and an inguinal hernia’. Mrs Beukes had had two
previous appendectomies, a hysterectomy and a cholecystectomy. The CT scan showed
two hernias, at one of the old appendix scars, and a left femoral hernia. Mrs Beukes had,
however, not brought all the images of the CT scans done on her to Dr Smith.

[4] Having consulted Mrs Beukes on 21 February 2012, Dr Smith caused her to be
admitted to Life Anncron Hospital. He would have preferred to view all the CT scan
images, presumably, to be more certain about the diagnosis. Hence, the following day,
22 February 2012, he consulted local radiologists on the radiologist report attached to the
referral letter. The local radiologists could not be of much assistance as they also required
all the scans in order to interpret and assist in the further diagnosis. It appears that it
would have been preferable to have the scans re-done. Mrs Beukes’ medical aid was
however not likely to approve that expense, since scans in relation to the same complaint

3 Contrast Enhanced Computer Topography.

had already been done at Victoria Hospital. On the same day, 22 February 2012, Dr Smith
wrote to Mrs Beukes’ medical aid scheme, motivating for the approval of a laparoscopic
hernia repair, as follows:
‘I would like to motivate for a laparoscopic incisional hernia repair on above patient.
The patient is quite obese and laparoscopic repair is considered the gold standard repair for
incisional hernia, especially in obese patients for the following reasons:
GENERAL ADVANTAGES OF LAPAROSCOPIC SURGERY
-
faster operation time
-
less pain for patient
-
shorter ileus period
-
faster recovery
-
faster discharge from hospital
-
quicker return to work for patient
SPECIFIC ADVANTAGES OF LAPAROSCOPIC HERNIA REPAIR
-
Much lower incidence of wound complications, superficial wound infection and
wound dehiscence.
-
Smaller wound has much quicker healing time even if wound infection does occur.
-
If wound infection does occur, the wound is far away from the hernia site and mesh,
thus mesh infection with subsequent mesh sepsis, chronic wound drainage and re
operations to remove septic mesh, and redo of hernia repair is much lower with
laparoscopic surgery.
-
To manage an infected open hernia repair with mesh sepsis is massively
unsatisfying, costly, time consuming.
-
The cost of the mesh for open or laparoscopic hernia repair remains the same, as
intra peritoneal mesh placement is used for both techniques. With open hernia
repair, the wound is directly over and above the mesh, making it susceptible for
infection, but with laparoscopic repair the wound is about 5cm away from the lateral
edge of the mesh.
-
Patients that undergo an open hernia repair often needs ICU management for 24-
72h post op for pain control and observation, and another 3-5 days in the ward
before discharge, where laparoscopic repair patients routinely returns to the ward
and can be discharged within 24-72h.’

On 23 February 2012 Dr Smith, assisted by Dr Dries,4 proceeded to do the laparoscopic
hernia repair on Mrs Beukes.

[5] During the intricate laparoscopy Dr Smith found a Spigelian hernia with the bowel
attached to it at the location of the old appendix scar. He repaired the hernia by reducing
it and placing mesh over it. He also did an oophorectomy (removal of an ovarian cystic
mass) - the mass aspirated from the right ovary was sent for histology. However, despite
complicated and extensive adhesiolysis (dissection of a number of adhesions) during the
two and a half hour operation, and the deep exploration of the abdomen, Dr Smith could
not find the reported femoral hernia. Mrs Beukes was discharged from hospital on 28
February 2012.

[6] Three days after her discharge from hospital, on 1 March 2012, Mrs Beukes was
readmitted to the hospital, presenting with acute abdominal pain and rectal bleeding. In
theatre Dr Smith performed an emergency ‘re-look procedure’. He found a colon
perforation from which emanated a trickle of septic fluid. It was on the rectum, about 15cm
from the anal verge. Dr Smith thought that it had been caused by traction on the rectum
during the adhesiolysis, as he was looking for the femoral hernia. He performed a
Hartmann’s operation5 and washed out the peritoneal cavity with saline. He removed the
mesh and did an end colostomy, leaving drains in place. Mrs Beukes was admitted to
Intensive Care Unit (ICU) and put on a ventilator.

[7] Three further surgical procedures were performed to clean out Mrs Beukes’
peritoneal cavity. A foley catheter was inserted in her rectum to control possible fistula.
She received wound care and remained in hospital with an open abdomen covered with
a split skin graft until 19 April 2012 when she was discharged. Her incisional hernia was
subsequently repaired and her colon anastomosed by another surgeon.

[8] On 4 April 2014 Mrs Beukes instituted proceedings for damages against Dr Smith
and the Life Anncron Hospital. Having set out the sequelae resulting from the operations

5 Resection of the rectosigmoid colon with creation of colostomy.

performed by Dr Smith, which included a further hernia at the site of the surgery,
disfigurement to her abdomen, and chronic lower back pain, Mrs Beukes alleged in the
particulars of claim that these resulted from the negligence of Dr Smith and the medical
staff at the hospital in breach of their legal duty to exercise reasonable skill, care and
diligence. She also alleged that they failed to obtain informed consent from her before
performing the hernia repair surgery.

[9] Specifically, as against Dr Smith, the allegation was that he negligently elected to
perform laparoscopic surgery instead of a laparotomy, despite the higher risk of bowel
and vascular injury posed by the former to obese patients. It was also alleged that the
removal of the ovarian cyst had been unindicated and unnecessary. Mrs Beukes later
withdrew her claim against the Life Anncron Hospital.

[10] In his plea Dr Smith contended that Mrs Beukes gave him informed consent orally
on 22 February 2012, following an explanation by him of the contemplated laparoscopic
surgery and the laparotomy option, together with the attendant material risks. He
contended further that the written consent signed by Mrs Beukes shortly before the
operation on 23 February 2012, which formed part of the record, was confirmation of the
oral consent given the previous day, following his explanation of both procedures.

[11] In her evidence Mrs Beukes denied that Dr Smith explained both procedures to
her. She also denied that the doctor had made a provisional diagnosis. She insisted that,
in her first consultation with Dr Smith on 21 February 2012, the latter told her that he
would first consult with the radiologists on her scans and thereafter perform a ‘quick . .
.15 to 20 minute operation’ to repair her hernia with a mesh, and, in ‘two or three days’
she would be home. On her version, Dr Smith made the decision to do the laparoscopic
hernia repair on her during the first consultation, on 21 February 2012, even before
consulting the local radiologists. She suggested that the reason for admitting her on that
day was to perform the laparoscopy. In her words ‘If the defendant did not want to operate
on me, why did he admit me?’. According to her, Dr Smith instructed his secretary to book
a bed for her; and said that he would ‘prep’ her for an operation on 23 February 2012.

[12] In her evidence, Mrs Beukes denied having signed the written confirmation of
informed consent form and also denied that she was at the theatre at 05h00 on 23
February 2012 when the consent form was signed. She also sought to suggest that it was
only shortly before the trial that she became aware that Dr Smith had removed her ovarian
cyst, although in the summons she alleged that Dr Smith unnecessarily removed the
ovarian cyst.

[13] Mrs Beukes testified that if she had been informed that the hernia could also be
repaired through a laparotomy she would have discussed her options with her family and
would have opted for the less risky of the two procedures. But she trusted Dr Smith and
believed him when he told her that the laparoscopy was a simple procedure that would
take 15 to 20 minutes and that she would be discharged from hospital in three days.

[14] Dr Smith testified that during the consultation on 21 February 2012 he considered
that surgery might be required if Mrs Beukes’ condition did not improve through
conservative treatment. On the morning of 22 February 2012 he had a consultation with
Mrs Beukes, during which he informed her of the nature of each of the two medical
procedures open to her and the attendant material risks and benefits. He told Mrs Beukes
that his opinion was that the laparoscopic procedure would be better. Thereafter, Mrs
Beukes gave oral informed consent to the proposed laparoscopic procedure. The oral
consent was confirmed in writing in the early morning of the following day, the day of the
operation.

[15] Dr Smith explained the benefits of a laparoscopy as – smaller wounds, quicker
healing, less scarring, less pain, a lower wound infection rate, a shorter hospital stay, and
a shorter recovery period. This is in line with his motivation to her medical aid scheme.
The significant risks were bowel perforation and the possibility that the procedure could
have to be converted to laparotomy. As to open surgery the risks were bowel injury
(although lower than in laparoscopy), long incision, hernias, wound dehiscence and
increased risk of infection, particularly for obese people and smokers. This explanation is
consistent with that given by Dr Bizos in his evidence regarding the risk and benefits of
each of the procedures.

[16] Mrs Beukes was high risk for wound infection because of her morbid obesity. At
41 years old at the time she weighed 125.9kg, was 1,65m tall and therefore had a body
mass index (BMI) of 46. She was a smoker. Further, having had three previous operations
meant that she would have adhesions in the peritoneal cavity, she was therefore a high
risk case for bowel injury during laparoscopic surgery or even for laparotomy. Dr Smith
was of the opinion that performing the hernia repair laparoscopically was the better option
for Mrs Beukes, because of her excessive weight, the likelihood of adhesions due to her
previous operations and because she was a smoker.

[17] Professors Desmond Pantanowitz and Damon Bizos, both specialist surgeons,
gave evidence on behalf of Mrs Beukes and Dr Smith, respectively. Importantly, they
agreed that a laparoscopy was indicated; that there was no negligence in the performance
thereof; in particular, that the bowel perforation was not caused by negligence on the part
of Dr Smith; and that Dr Smith’s post-operation management of the appellant was
acceptable. The experts were also in agreement that because of Mrs Beukes’ weight, the
three previous abdominal operations which were likely to have caused adhesions in the
peritoneal cavity, she was high risk for bowel injury. The evidence of both experts was
that the incidence of bowel perforation was higher in laparoscopic surgery than in
laparotomy, and that the risk of post-operative wound infection was higher in laparotomy
for obese patients and smokers. Even Prof Pantanowitz, Mrs Beukes’ expert, did not
dispute the opinion that laparoscopy was the safer option for Mrs Beukes. His only
concern was whether informed consent had been obtained beforehand.

The High Court
[18] At the start of the trial the high court granted an order in terms of Rule 33(4) of the
Uniform Rules of Court ‘deferring the determination of quantum of the plaintiff’s claim and
directing that the trial proceed on all other issues raised in the pleadings.’ The high court
considered the claim to have been founded on contract. It must be said though that in the
particulars of claim Mrs Beukes had alleged that the hospital and Dr Smith were ‘under a
legal duty of care to ensure that the rendering of medical care, treatment and advice to
[her] with such skill, care and diligence as could reasonably be expected of medical
practitioners and nursing personnel in similar circumstances, obliging [them] to ensure

that proper, sufficient and reasonable health services were provided to members of the
public’. She also pleaded that her injury resulted from the negligence of the medical staff
at the hospital who, together with Dr Smith in, amongst other things, failing to obtain
informed consent from her before performing the laparoscopic procedure. Mrs Beukes’
claim therefore was founded on delict.

[19] In dismissing the claim, the high court found, in favour of Dr Smith, on the
conflicting versions of what had been communicated. It found that Mrs Beukes was not a
reliable witness. This, the court attributed to her physical and emotional state shortly
before the operation. It found that she had been passive and trusting of the doctor and
was not likely to recall the discussion regarding the risks and benefits of the two
procedures. Although there was no evidence to this effect, the high court was of the view
that Mrs Beukes would have taken pain control medicine and would therefore not have
been quite attentive during the days preceding the operation. She was therefore unlikely
to recall the conversation that she had with the doctor on 22 February 2012. The court
rejected Ms Beukes’ version that on 21 February 2012, during the first consultation, Dr
Smith had already made the decision to operate on her. It accepted the doctor’s version
that he had explained the different surgical procedures to her. It also found, as Mrs
Beukes testified, that Dr Smith had considerable patience – this was further demonstrated
during rigorous cross-examination. He was, by all accounts, a caring and diligent doctor.
The informed consent issue was therefore decided on the version tendered by Dr Smith.
I interpose to state that it was never Mrs Beukes case that she was unable, because of
medication or otherwise, to appreciate what was being communicated to her by Dr Smith.
Her case was that she was never fully informed of her options and the risks and benefits.

Submissions on appeal
[20] We are called upon to determine what Dr Smith imparted to Mrs Beukes and
whether that constituted sufficient information to the appellant to enable her to give
informed consent to the laparoscopy.

[21] Mrs Beukes, in seeking reconsideration of the high court’s factual finding that Dr
Smith did provide her with the necessary information, insisted that the hospital records

did not support Dr Smith’s version. Chief amongst her contentions were that although the
hospital records show that the doctor had a consultation with her at 08h00 on the 22
February 2012, during which, according to Dr Smith, the information was given, there is
no recordal of the details of the purported informed consent discussion. The fact that Dr
Smith was unable to recall the identity of the staff member at the hospital who made the
relevant entry was criticized. The submission was that, in the absence of evidence on the
details of such consultation and on the identity of the author of the recordal, a conclusion
should be drawn that Dr Smith never gave Mrs Beukes the necessary information on that
day as he alleged. Further, even, if Dr Smith gave her some information, it was not
sufficient to enable her to make an informed decision. In this regard Dr Smith was cross-
examined at length regarding his failure to inform Mrs Beukes that the consequences of
wound sepsis (which was high risk in laparotomy) would be ameliorated by the specialist
wound care health facility at Wilmed Park, in close vicinity to the hospital. The suggestion
was that this was a material benefit which should have been communicated to Mrs
Beukes.

Discussion
[22] It is trite that the powers of an appeal court to overturn factual findings by a trial
court are restricted.6 But where the findings of a trial court are based on false premises
or where relevant facts have been ignored, or where the factual findings are clearly wrong,
the appeal court is bound to reverse them.

[23] Indeed, the doctor’s evidence was entirely reliant on his memory regarding what
transpired over the relevant period. But several aspects supported his version. As the
high court reasoned, Dr Smith’s demeanour and diligence, which Mrs Beukes also
confirmed, was more consistent with the version that he would have explained the
contemplated treating methods than not. The judgment of the high court was based on
the available evidence. The medical records supported the doctor’s version rather than
the version tendered by Mrs Beukes. For example, a note made on the first day of
consultation in Dr Smith’s case book showed that surgical intervention was not uppermost

6 D T Zeffert and A P Paizes The South African Law of Evidence (2 ed) at 942; Rex v Dhlumayo and Another
1948 (2) SA 677 (AD) at 705.

in his mind. The note read ‘treat conservatively as obstruction if not responding, theatre.’
Against this record the allegation by Mrs Beukes that, from the onset, Dr Smith had firmly
decided, early on, to perform a laparoscopy, was improbable. Her attempt to distance
herself from her written consent, and her evidence that Dr Smith made light of the
laparoscopy as a 15 to 20 minute procedure, impugned her credibility. It was also
inconsistent with the doctor’s undisputed caring and diligent nature.

[24] An entry made in Mrs Beukes’ hospital records at 20h30 on 22 February 2012
shows that she was ‘aware of the diagnostic procedure’ that was to be performed on her
the following morning. This suggests that there had been a more substantive discussion
between her and Dr Smith than she was willing to admit. The written representations
made to Mrs Beukes’ medical aid after the consultation during the morning on 22 February
2012 reveal that the material risks and benefits attendant in the medical procedures
occupied the doctor’s mind. Nothing in the medical records contradicted Dr Smith’s
evidence. On the other hand, a response by Mrs Beukes during cross-examination, that
she had lost a lot of memory, is indicative of her poor recollective faculties. Consequently,
there is no basis to overturn the factual finding by the trial court that Dr Smith’s version
was probable and that of Mrs Beukes was not.

[25] In claims for damages based on negligence for failure to warn a patient of material
risks or complications attendant in a treatment or surgical procedure, courts employ a
patient based approach. The reasoning is that a patient’s freedom to self-determination
includes the right to decide whether she wants to undergo surgery. A patient is entitled to
refuse medical treatment. If she consents to surgery or medical treatment she accepts
responsibility for unintended harm in the medical treatment, in the sense envisaged in the
principle volenti non fit injuria.7 However, a patient must have had knowledge and must
have appreciated the nature and extent of such harm or material risk. Therefore, for a
patient’s consent to constitute justification that excludes wrongfulness, a doctor is obliged
to warn a patient of the attendant material risks in such procedure. A risk is regarded as
material when a reasonable person in the patient’s position, if warned of the risk, would

7 Castell v De Greef 1994 (4) SA 408 (C).

likely attach significance to it; or where the medical practitioner is aware that the patient,
if warned, would likely attach significance to it.8

[26] It was not in dispute that bowel perforation and wound infection were the relevant
material risks in relation to the two medical procedures under consideration, it is
reasonable that Mrs Beukes, as a reasonable patient, would attach significance thereto
and Dr Smith would have been aware of that. The evaluation above shows that Dr Smith
did inform Mrs Beukes of these risks. The high court’s rejection of the arguments that Dr
Smith was obliged to inform Mrs Beukes of the presence of a renowned wound clinic was
correct. If that were required it would be too high a standard. Hospitals are in any event
expected to have in place measures to deal with potential negative consequences
following surgical procedures.

[27] The consent that Mrs Beukes gave for the laparoscopy is consistent with what a
reasonable person would have opted for immediately prior to the surgery. The evidence
of Prof Pantanowitz was that the decision of a patient such as Mrs Beukes was a 50/50
decision. With the level of trust that Mrs Beukes had in Dr Smith, her election to consent
to the laparoscopy was consistent with the balance of the evidence.

[28] Dr Smith testified that on 22 Feburary 2012 he went to the Radiology Department
of the hospital. Thereafter he went to the ward in which Mrs Beukes was and examined
her. It is at that stage that he made the decision that she needed to have surgery. He then
explained the two options available – the laparoscopic and open surgery. He explained
that laparoscopic surgery entailed small incisions, using the Afrkaans word ‘gaatjies’,
whilst the laparotomy would be a big cut. He told Mrs Beukes of the ‘pros’ and ‘cons’ of
each. His evidence was:
‘the risks and benefits are explained to her M’Lord and it generally comes down to two that I told
her. The one is with laparoscopy, the disadvantages you can have a bowel injury but it [is] also
possible with open surgery. So it is not necessarily zero when you open someone up and I mean
laparotomy. And the other one is conversion to open laparotomy. By that I mean even if you make
gaatjies you can still end up opening the patient.

8 Ibid at 426F-H. See also, Sibisi NO v Maitin 2014(6) SA 533 (SCA).

. . .
So with all those information at hand M’Lord I decided to give her the option of laparoscopic or
open and I gave her advice and I would [have chosen] the laparoscopic if it was my [choice].’
He could not recall the exact words that he used. Neither could he recall if he used the
word ‘adhesions’. But he was certain that in the consultation on 22 February 2012 the risk
of bowel injury did ‘come up’. He also recalled that he told Mrs Beukes about her high risk
status. He emphasised that he considered her to be a high risk patient in respect of both
surgical procedures.

[29] Prof Pantanowitz described the information necessary for a patient to give
informed consent as follows:
‘. . . if you are going to undertake this type of surgery, and in a patient who has had previous
abdominal surgery, you need to say to the patient there is a risk of bowel injury, there is a risk of
vascular injury and if we use the open technique there is more of a risk of sepsis. And eventually
you can say I advise you to do this, but the patient has to make the final decision, because it is
almost a 50/50 problem.’

[30] He explained that his personal preference was the ‘open method’. However,
according to him, many surgeons preferred the laparoscopic technique in relation to
obese patients, because of the danger of wound infection. His evidence was ‘it is
controversial about whether you should prefer one to the other in an obese patient but I
my personal view is that I myself would advise my patient to have it open, but there are
many surgeons who would advise them to have closed technique’.

[31] Dr Bizos’ evidence was that he would have explained thus:
‘. . . there are two ways of dealing with this. The one is to do a minimally invasive or minimal
access surgery where we put a laparoscope in and we take a look and the other is that, we do an
incision to try and find out where the problem is and I would – it is difficult for me to say precisely
how big where this incision is going to be. If we do it open and then I would say to them, “Look,
you need this operation and there are certain risks of any operation in the abdomen and they
include risks of bowel perforation, leaking bowel, bleeding and then if we do the big operation,
wound, wound infection, as well as general problems with an operation.” . . .if we had to list every

and all complications, we would be there for half a day, and I don’t’ think a patient would ever
have an operation, because there are very real problems that can occur with any form of surgery.’

[32] Viewed in light of the expert evidence the information imparted by Dr Smith to Mrs
Beukes, which the high court rightly accepted, meets the standard of a reasonable
expert.9 It covered the range of surgical procedures and treatment options available to
Mrs Beukes and the associated benefits and risks. It could therefore not be said that there
was negligence in relation to obtaining the informed consent from Mrs Beukes. A further
difficulty faced by Mrs Beukes is that it is unclear that perforation and consequent sepsis
would, in any event, not have ensued, even if a laparotomy had been performed.

Costs
[33] There is no reason why the costs should not follow the cause. However, counsel
for Dr Smith graciously indicated, taking into account the difficulties experienced by Mrs
Beukes and her personal circumstances, that Dr Smith would not pursue costs.

[34] In the result the following order is made:.
The appeal is dismissed with costs.

_________________
N Dambuza
Judge of Appeal

9 See Van Wyk v Lewis 1924 AD 438.

APPEARANCES

For Appellant:

G J Strydom SC

Instructed by:

Motshabi & Modiboa Attorneys, Mafikeng

McIntyre van der Post, Bloemfontein

For Respondent:

E van Vuuren SC (with L Mtukushe)

Instructed by:

Macrobert Attorneys, Cape Town

Neuhoff Attorneys, Bloemfontein