THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable

Case No: 949/2016

In the matter between:

JARON DU PREEZ

APPELLANT

and

EUGENE PRETORIUS
RESPONDENT

Neutral citation: Du Preez v Pretorius (949/2016) [2017] ZASCA 133 (29
September 2017)

Coram:
Lewis, Bosielo and Swain JJA and Molemela and Gorven
AJJA

Heard:

1 September 2017

Delivered:
29 September 2017

Summary: Delict: Medical negligence: pleadings: causation: pleaded causation
not established: appeal dismissed.

__________________________________________________________________________

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Janse Van
Nieuwenhuizen J sitting as court of first instance):
The appeal is dismissed with costs, including the costs occasioned by the
employment of two counsel.

JUDGMENT

Gorven AJA (Lewis, Bosielo and Swain JJA and Molemela AJA
concurring):

[1] The appellant was diagnosed with testicular cancer. On 3 November
2010, his left testis was surgically removed. The surgeon referred him to an
oncologist, Dr Slabber, but the appellant responded negatively to his bedside
manner. He decided to investigate alternative therapies. In doing so, he heard of
insulin potentiation therapy (IPT) and came across the respondent, a general
practitioner who administered this alternative form of treatment. The respondent
treated the appellant between 10 November 2010 and 8 February 2011. The
appellant then abandoned this treatment and consulted a conventional
oncologist, Dr Rens. The latter administered four cycles of conventional
chemotherapy. After this, the appellant’s cancer was found to be in remission.

[2] The appellant sued the respondent in the Gauteng Division of the High
Court, Pretoria. I will deal with the causes of action later in the judgment. The

parties agreed to a separation of issues under Uniform Rule 33(4). The trial
court was requested to determine the issues ventilated in the first 13 paragraphs
of the particulars of claim. Janse Van Niewenhuizen J dismissed the appellant’s
claim with costs. The appeal before us is against this dismissal, with her leave.

[3] The salient facts follow. As indicated, after his surgery, the appellant was
referred to an oncologist but did not establish a rapport with him. He came
across another patient of his age who had developed a kidney problem and
required dialysis as a result of conventional chemotherapy. He was also aware
of the severe side effects of conventional chemotherapy. Having researched
IPT, the appellant consulted the respondent on 8 November 2010. He handed
the respondent records including his CT scan and blood tests. These indicated
that he had stage III cancer with metastases. There is a lack of clarity as to what
the respondent informed the appellant concerning the pros and cons of IPT. He
did explain that, by using insulin, lower doses of chemotherapy than the
conventional ones are required to successfully treat cancer. The respondent
estimated that there was a high percentage chance of success if IPT was
administered. The respondent told the appellant of a previous patient where IPT
had been successful. The appellant visited the patient who confirmed this claim.
The treatment of the appellant then commenced.

[4] The respondent administered IPT treatments on 9 occasions between 10
November and 9 December 2010. He then went on leave, interrupting it on 20
December 2010 for a further treatment. During the respondent’s leave, the
appellant, of his own volition, had another doctor administer IPT at least once.
The respondent administered further IPT treatments on five occasions, the last
being on 8 February 2011. The appellant did not arrive for his appointment for
treatment on 22 February 2011.

[5] During the time that the IPT was being administered, the respondent
obtained regular blood count results. These showed up two tumour markers; the
Alpha-fetaprotein count (AFP) and the Beta-human chorionic gonadotropin
count (BHCG). The target for AFP was in the range of 0 to 10 and that for
BHCG was in the range 0 to 5. Both markers diminished relatively steadily
between the inception of IPT and 11 January 2011. The AFP results were within
the target range from 24 December 2010 to 22 February 2011. The BHCG
results were in the target range on 17 December, 24 December and 3 January.
Between 11 January and 22 February, however, the BHCG count rose steadily
from 3 to 253.

[6] The appellant became increasingly concerned when the BHCG results
climbed beyond the target range. His wife, who was a theatre sister, suggested
that it was time to consult a conventional oncologist. As a result, the appellant
did not arrive for his treatment scheduled for 22 February 2011. Dr Rens, an
oncologist, was consulted and commenced four cycles of conventional BEP
chemotherapy. Since the end of that course of treatment, the cancer of the
appellant has been in remission.

[7] The appellant’s first cause of action was for negligent misrepresentations
inducing him to contract with the respondent and his having suffered damages
as a result. His second was characterised as negligent conduct giving rise to a
breach of the contract between the parties. The third was for damages caused by
the negligent breach of a legal duty arising from the doctor patient relationship.

[8] Three misrepresentations were relied on to found the first cause of action.
The first was that the appellant was a suitable candidate for IPT treatment. The
second was that the IPT treatment would cure the appellant’s condition. The
third was that the appellant would have to undergo between 10 and 14 IPT

treatments. These were not pleaded in the alternative. It was averred that the
three together induced the appellant to undergo treatment at the hands of the
respondent. All three had accordingly to be proved.

[9] The representations were alleged to have been negligent, and to have
induced the appellant to contract with the respondent. It was alleged that, as a
consequence, the appellant had suffered damages by incurring unnecessary
medical and hospital expenses. In order to succeed under this cause of action,
therefore, the appellant had to establish that the three representations were
made, that they were false, that they were made negligently, that they together
induced the appellant to contract with the respondent and that, as a
consequence, he suffered damages.

[10] I shall deal with the second and third representations first. The second
representation relied upon was that the IPT treatment would cure the appellant’s
condition. In his testimony, the appellant denied that any such representation
had been made. This was confirmed by the respondent. At most, the respondent
gave an estimate that there was a 90% chance of the IPT treatment being
successful. The respondent testified that the estimate given to the appellant was
between 80% and 90%. It was clear from the evidence of both of them, in any
event, that even the percentage mentioned was a mere estimate. Quite clearly, it
was not established that the representation that IPT could ‘cure’ cancer had been
made.

[11] The third representation was as to the number of treatments required. It
was averred that the respondent told the appellant that 10 to 14 treatments
would be required. Although the appellant initially mentioned these numbers, he
clarified on two occasions that the respondent told him that he could not specify
the number of treatments which would be required at that stage. This could only

be assessed as the treatment progressed. This representation was thus also not
established.

[12] As for the first representation alleged, the respondent admitted having
told the appellant that he was a suitable candidate for IPT treatment. The
appellant did not establish that the statement was false. The only evidence
sought to be introduced on this issue was that of a book on IPT to which the
respondent had written the foreword. Apart from the book not having been
proved to be authoritative on the subject, the excerpt relied on did not assist the
appellant. He read a passage which described the ideal candidate for IPT as one
where, along with other conditions, the cancer had not metastasised. However,
the passage went on to say:
‘This does not mean that patients to whom one or more of these conditions do not apply, will
not benefit from IPT, it is only the determination of the probable course thereof which might
not be so clear.’1
This comes nowhere close to showing that the respondent’s representation was
false.

[13] The expert witness called by the appellant, Dr van Niekerk, conceded that
he knew nothing about IPT. He contented himself with the assertion that there
was no scientific basis for IPT. As a result, he did not apply his mind to whether
its use was indicated in the particular case of the appellant. What is interesting
is that he did concede that IPT may function to make the cell or tissue more
permeable to chemotherapy. He mentioned in vitro studies which show that this
may improve the transport of drugs into the cell. He testified that the research
was, however, still at an experimental stage. His attitude was that it should not

1 My translation. The original reads ‘Dit beteken nie dat pasiёnte op wie een of meer van hierdie voorwaardes
nie van toepassing is nie, geen baat sal vind by IPT nie, dit is slegs die vasstelling van die vemoedelike verloop
daarvan wat dalk nie so goed sal wees nie.’

be used on humans. He conceded under cross-examination that he was not in a
position to judge the efficacy and safety of IPT treatment.

[14] When it was put to him that the respondent had successfully treated
someone with similar symptoms to those of the appellant, he was
understandably unable to comment. He was forced to concede that, whilst this
treatment was being administered, the markers were reduced to within the target
range for a period of time. He was constrained to abandon his initial opinion
that this was the result of the surgery that preceded the treatment.

[15] This means that, of the three representations relied upon, only one was
proved to have been made. This had in any event been admitted. It was not
proved, however, that this representation was false. In the result, the first cause
of action was not made out.

[16] The second two causes of action were pleaded in a somewhat confused
fashion. They were clearly conceived as relying on the concurrent actions in
contract and delict which, in some professional relationships, can lie on the
same facts.2 Be that as it may, it was alleged that various grounds of negligence
on the part of the respondent gave rise to damages under both contract and
delict.

[17] After the pleaded allegations of negligence, the foundation of these two
causes of action was set out in paragraph 13 of the particulars of claim:
‘As a consequence of the aforegoing, the Plaintiff’s condition was not cured and the Plaintiff
had to undergo further treatment in the form of “BEP” chemotherapy.’
This averment is that the need for conventional chemotherapy was caused by
the failure of the respondent to cure the appellant. The clear corollary of this is

2 Lillicrap, Wassenaar & Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 496D-H.

that if there had been no negligence on the part of the respondent, the appellant
would have been cured.

[18] It was quite properly conceded in argument that it cannot be said that it
was shown that any conduct of the respondent resulted in the cancer not being
cured. Medical science does not speak of a cure. At most it can be said that
cancer goes into remission. The entire foundation of the appellant’s case was
thus not established. In any event, the appellant testified that he was aware that,
however high the percentage chance of success might be, there was no
guarantee that the IPT treatment would lead to remission. As such, it was
always a possibility that he would in any event have to undergo conventional
chemotherapy.

[19] In his evidence, the complaint of the appellant was that the IPT, and the
interruption in the IPT when the respondent was on leave, both caused
resistance to conventional chemotherapy. This meant, according to the
appellant, that Dr Rens had to administer more cycles of chemotherapy than
would otherwise have been necessary. Once again, however, the evidence did
not establish this contention. Dr Van Niekerk testified that if the appellant had
sought treatment from him at the outset, he would have administered four cycles
of chemotherapy. This is precisely what was done by Dr Rens.

[20] Since it was not proved that any conduct of the respondent caused the
appellant to sustain damages as pleaded, the question of whether the respondent
was negligent need not be considered. In these circumstances it would be what
has been termed negligence in the air. Even if it had been proved that the
respondent was negligent in one or more of the respects pleaded, it was not
proved that any such negligence resulted in the appellant not being cured. Still
less can it be said that it caused the appellant to have to undergo conventional

BEP chemotherapy or additional chemotherapy. No damages were therefore
occasioned by any alleged negligence.

[21] The appellant failed to prove that any conduct of the respondent caused
him to suffer damages either at a contractual or delictual level. This means that
the second and third causes of action were not established. There is therefore no
basis on which the appeal can succeed.

[22] In closing, it bears repetition that when rule 33(4) is applied, the issues
for determination should be formulated clearly and an order should be issued.3
The trial court did not, as it should have done, determine whether any damage
was caused by the respondent’s conduct. This was the result of an inappropriate
approach to the separation of issues. A failure to consider the consequence of a
separation leaves the litigants and the court in an invidious position.

[23] In the result, the following order is made:
The appeal is dismissed with costs, including the costs occasioned by the
employment of two counsel.

________________________
T R Gorven
Acting Judge of Appeal

3 Absa Bank Ltd v Bernert 2011 (3) SA 74 (SCA) para 21.

Appearances
For the Appellant:
EC Labuschagne SC (with him JG Van Der Merwe)

Instructed by:
Savage Jooste & Adams Incorporated, Pretoria

Webbers, Bloemfontein

For the Respondent
BP Geach SC (with him D Keet)
Instructed by:
Van Niekerk Attorneys Incorporated, Pretoria
Honey Attorneys, Bloemfontein