THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case no: 576/2019

In the matter between:

THE MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH, EASTERN CAPE
APPELLANT

and

ZIMBINI MPETSHENI obo
LUYANDA MPETSHENI
RESPONDENT

Neutral citation: The Member of the Executive Council for Health, Eastern Cape v
Zimbini Mpetsheni obo Luyanda Mpetsheni (576/2019) [2020] ZASCA 169 (14
December 2020)

Bench:
PETSE DP, ZONDI and NICHOLLS JJA and EKSTEEN and
UNTERHLATER AJJA

Heard:
13 November 2020

Delivered: This judgment was handed down electronically by circulation to the
parties' representatives via email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is deemed to be
09h45 on 14 December 2020.

Summary: Action in delict – acute profound brain injury during labour causing the
child to suffer from cerebral palsy – whether the trial court could depart from the
expert opinion of the radiologist agreed to by the parties – no basis found to depart
from the causal factors implicated in an acute profound brain injury.
__________________________________________________________________

ORDER
__________________________________________________________________

On appeal from: Eastern Cape Division of the High Court, Bhisho (Hartle J sitting
as court of first instance): judgment reported sub nom Luyanda v Member of the
Executive Council for Health, Eastern Cape [2019] ZAECBHC 7

(a)
The appeal is upheld.
(b)
The order of the high court is set aside and replaced by the following order:
‘The plaintiff’s claim is dismissed.’
__________________________________________________________________

JUDGMENT
__________________________________________________________________
Unterhalter AJA (Petse DP, Zondi and Nicholls JJA, and Eksteen AJA
concurring)

[1] On 3 December 2005, the respondent, Ms Mpetsheni, gave birth to a son,
Luyanda (the child), at the Madwaleni Hospital. Luyanda was born with severe brain
damage, as a result of which he suffers from cerebral palsy. Ms Mpetsheni instituted
an action against the appellant in which she alleged that the negligence of the staff
at the hospital failed to prevent the brain injury that occurred during her labour. That
injury was caused by a lack of oxygen and blood flow to Luyanda’s brain. The
technical description of reduced brain oxygen is hypoxic ischaemic encephalopathy.

[2] Ms Mpetsheni began to experience labour pains at 03h00 on 3 December
2005. Together with her mother, Ms Mpetsheni went to the hospital. They arrived at
about 07h00, and Ms Mpetsheni’s membranes ruptured. She was admitted to the
labour ward at about 08h00. There a nurse performed a vaginal examination,
checked the foetal heart rate and informed Ms Mpetsheni that the birth of her child
was still far from occurring, and that she should wait in a separate room. There are
different accounts as to what Mpetshini was told in the course of the day and what
further examinations took place. However, at 21h00 Ms Mpetsheni began to feel
great pain and started screaming. She was then examined by a nurse to check the
position of the foetus and the nurse informed her that she would give birth soon. A
drip was inserted. Ms Mpetsheni was attended upon by two nurses. One of the
important factual issues at trial was precisely what these nurses did during this final
stage of labour. But it is clear that this stage of her labour lasted some 60 minutes
before the child was delivered. During this time, and while Ms Mpetsheni was
pushing, so too did a nurse push on her abdomen. How often, and with what amount
of force, was disputed. In addition, one of the nurses performed an episiotomy.
Luyanda was born at 22h00. He did not cry. A doctor was called and, upon
investigation, it was determined that Luyanda had suffered a severe brain injury
during labour.

[3] At the trial, two issues were agreed by the parties. First, that the period in
contention was the second stage of labour, though the parties were at odds, as I shall
explain, as to how long that stage endured. Second, the parties stated that the report
of Dr Pretorius, an expert radiologist, and its addendum, was admitted into evidence
by agreement. Dr Pretorius considered an MRI scan of Luyanda’s brain. He

concluded that the image indicated an acute profound hypoxic ischemic event that
occurred intrapartum.

[4] The significance of this conclusion is an important matter. It was explained,
in the course of the trial, by the expert obstetrician and gynaecologist, Dr Buchmann,
who testified on behalf of the appellant. He testified that there is a distinction
between an intrapartum acute profound brain injury (‘an acute profound injury’) and
an intrapartum prolonged partial brain injury (‘a prolonged partial injury’). An acute
profound injury is severe, with total or near-total asphyxia (deficient supply of
oxygen); it is of short duration, and sudden onset, and generally occurs 30 minutes
before delivery. A prolonged partial injury is less severe, with partial asphyxia; it
develops slowly over several hours; it is often preceded by a deteriorating foetal
heart rate that gives a warning of developing hypoxia, that is, lack of oxygen.
Professor Buchmann stated that an acute profound injury is caused by a catastrophic
sentinel event, most likely, in the case of Luyanda, the event was the compression
of the umbilical cord. Dr Pretorius identified the injury suffered by Luyanda as an
acute profound injury.

[5] The expert called to testify on behalf of Ms Mpetsheni was Dr Ndjapa-
Ndamkou. He is also an obstetrician and gynaecologist. Dr Ndjapa-Ndamkou readily
recognised that he was not qualified to express an opinion as to the conclusion
reached by Dr Pretorius, since he is not a radiologist, and deference was thus
warranted. While there are passages of his testimony where Dr Ndjapa-Ndamkou
appeared to stray from his area of expertise to suggest that there were features of the
case consistent with a prolonged partial injury, ultimately, he accepted that Luyanda
suffered an acute profound injury.

[6] The court below was not convinced. Hartle J considered that there could be a
‘mixed injury pattern’,1 connoting an injury pattern that has some of the
characteristics of a prolonged partial injury and some of the characteristics of an
acute profound injury. This postulate was advanced for two reasons. First, Hartle J’s
‘own recourse to literature makes it plain that mixed patterns do exist and that when
energy substrates are depleted in partial prolonged asphyxia … there can be a further
assault in the form of near total collapse’.2 Second, Hartle J considered that the
absence of reasons offered by Dr Pretorius for his opinion was unhelpful and did not
exclude the possibility of a mixed injury pattern.

[7] Hartle J proceeded to consider the evidence led at the trial. Hartle J criticised
the evidence of Professor Buchmann. In particular, Hartle J considered Professor
Buchmann’s approach to be biased as to how fundal pressure (that is, applying
pressure by pushing downward on the mother’s uterus during delivery) was
conducive to cerebral palsy; that his denial of high risk factors that had occurred
during Ms Mpetsheni’s labour was unwarranted; and that his unwillingness to make
concessions that deviated from his view that this was an unforeseeable acute
profound injury lent support to an assessment of Professor Buchmann’s testimony
as lacking objectivity. Hartle J considered Dr Ndjapa-Ndamkou’s evidence to be
more probable and credible. The central finding is this:
‘Each of the risk factors highlighted by Dr Ndjapa-Ndamkou in a cascading manner point to a
causal connection between the inappropriate management of the plaintiff’s labour, including (
more especially) the injudicious and untimely application of the fundal pressure in a situation

1 Luyanda v Member of the Executive Council for Health, Eastern Cape [2018] ZAECBHC 7, especially para 121.
2 Ibid para 69.

where the child was already in a compromised position, and the superimposed acute profound
hypoxic result.’3
Consequently, the high court held that the appellant was liable in delict to the
respondent.  Aggrieved by this result, the appellant appeals against that order with
the leave of the high court.

[8] The appellant submitted that the court below fell into error. There was no
basis to depart from the finding of Dr Pretorius that this was a case of an acute
profound injury. Such an injury was properly characterised as a catastrophic sentinel
event by Professor Buchmann. It was an unforeseeable injury, occurring in the final
stage of labour, in all likelihood less than 30 minutes before delivery; and, in this
case, it was mostly likely the complete occlusion of the umbilical cord for a period
of 15 to 20 minutes that caused the injury. Neither the length of the labour, nor the
recognised failure by the hospital staff properly to monitor and inspect the progress
of the labour, nor the rupture of Ms Mpetsheni’s membranes, nor the application of
fundal pressure, was causally implicated in the injury suffered by Luyanda. There
was also no warrant, so it was contended, for the court below to find that Professor
Buchman gave biased testimony.4 Indeed, it was submitted on behalf of the appellant
that the only bias that may be found was exhibited by the court below itself.

[9] Counsel for Ms Mpetsheni acknowledged the agreement made concerning
the evidence of Dr Pretorius and the concessions made by Dr Ndjapa-Ndamkou, in
particular, that Luyanda had sustained an acute profound injury. Nevertheless, it was
contended that upon a reasonable extrapolation as to the length of Ms Mpetsheni’s

3 Ibid para 122.
4 Ibid para 114.

labour, there may have been intermittent hypoxia (oxygen deprivation),
compromising the ability of the foetus to recover. Hypoxia of this kind could have
been detected had proper foetal monitoring been done, which it was not, and steps
could then have been taken to avoid serious injury, for example by performing a
timely caesarean section. This, together with the negligent manner in which fundal
pressure was administered, resulted in the acute profound injury.

[10]  The first issue to be determined is whether the court below was justified in
departing from the opinion of Dr Pretorius, that Luyanda had suffered an acute
profound injury. It will be recalled that Hartle J did so on the basis of her own
recourse to the literature and the absence of reasons for the opinion expressed by Dr
Pretorius.

[11] This judicial assiduity strays beyond permissible bounds. The trial court will
ordinarily consider the assistance given by an expert’s evidence and come to its own
conclusions. But here the parties had agreed to accept the conclusion reached by Dr
Pretorius and ran the trial on this basis. In these circumstances, the trial court should
exercise very great caution. If Hartle J considered that Dr Pretorius’s conclusion was
questionable, it was essential to give notice of this to the parties, as soon as possible,
in the course of the trial, in turn securing the attendance of Dr Pretorius to explain
his position. Absent this, the trial court’s judgment is not the place to reject Dr
Pretorius’s opinion, nor to introduce a theory of injury at variance with the parties’
agreed position.

[12] Furthermore, a judge’s independent recourse to literature should also be
undertaken with circumspection. The admissibility of expert evidence is predicated

upon the special knowledge and skill of the expert to form an opinion that the judge,
unassisted, cannot. A judge with an interest in a field of expert knowledge should
not ordinarily undertake an independent search for relevant literature. And if it is
done for some special reason, the yield of such explorations must be put to the parties
and their experts. To do otherwise leaves the judge open to the very criticism made
in this case by the appellant: that the court below had recourse to undisclosed
literature to call into question an agreed conclusion that formed the basis upon which
the trial was run - that Luyanda suffered an acute profound injury.

[13] The high court was not willing to accept the opinion of Dr Pretorius and
characterised the injury as a ‘mixed injury pattern’. That was not a position available
to the trial court. Without notice to the parties, the literature reviewed by the learned
judge, not introduced into evidence, could not be used to justify a judicial
characterisation of the injury. Nor could the learned judge safely reach any such
characterisation, given the parties’ acceptance of the opinion of Dr Pretorius. Doubts
as to that opinion required of Hartle J that she take up the matter with the parties and
enjoy the benefit of testing her scepticism by securing the assistance of Dr Pretorius.
This is not simply a question of fairness. To make a finding on a matter that requires
an expert opinion, and to do so in contradiction of the opinion of an acknowledged
expert, agreed upon by the parties, without testing the matter with Dr Pretorius, was
to run a risk of error that cannot be allowed to stand.

[14] It follows that the matter must be considered from the agreed premise that the
parties adopted at the trial. That premise was that Luyanda suffered an acute
profound injury. The consequences of accepting this premise are far reaching. As I
have explained, the nature of an acute profound injury and a prolonged partial injury

are different. Those differences were set out by Dr Buchmann. Under
cross-examination, Dr Ndjapa-Ndamkou agreed that this was a case of an acute
profound injury and he concurred with the proposition that there was no indication
of a prolonged partial injury. Further, he agreed that an acute profound injury would
require a complete occlusion of the umbilical cord for a period between 15 and 20
minutes.

[15] What emerges from the differences between the two types of injury is that
their causes are also distinct. As their descriptions make plain, an acute profound
injury results from a catastrophic event, as Professor Buchmann explained. A
prolonged partial injury results from cumulative deprivations of oxygen over time.
The injury develops over hours and it may be observed by a deteriorating foetal heart
rate. Once this distinction is accepted, then very different time periods and causes
are implicated for the purposes of understanding what gave rise to the injury suffered
by Luyanda.

[16]  Precisely because the court below appreciated that the distinctive nature of
an acute profound injury excluded from consideration aspects of the negligent
treatment given to Ms Mpetsheni, the court questioned the conceptual distinction
between the two types of injury and adopted the notion of a mixed injury pattern.
This permitted the court below to consider the cumulative risks borne by Ms
Mpetsheni of the rupture of her membranes, the length of her labour, the failure to
undertake proper monitoring, and the fundal pressure applied to her. But without the
premise of a mixed injury pattern, what of these cumulative risks has any bearing
upon the catastrophic event that caused the acute profound injury?

[17] Counsel for Ms Mpetsheni sought to resurrect the case on this score, even
accepting that this was a case of an acute profound injury. He did so in two ways.
First, he contended that the active phase of Ms Mpetsheni’s labour endured for
considerably longer than Professor Buchmann allowed. There may have been
intermittent hypoxia, over a considerable period of time, which would have
weakened the foetus. The nurses failed to do proper monitoring to determine whether
this risk was present. In addition, the rupture of the membranes may have led to the
reduction of amniotic fluid, and the added risk of cord compression. Taken together
with the fundal pressure that was applied, the acute profound injury was a probable
consequence. I shall refer to this as the cumulative risk argument.

[18]  Second, counsel contended that the duration of the fundal pressure was in
itself a sufficient explanation of the acute profound injury. The nurses applied this
pressure in a manner that was both wrongful and negligent and hence the liability of
the appellant was proven. I shall refer to this as the excessive fundal pressure
argument.

[19]  The cumulative risk argument rests on the factual premise that the active
phase of labour was lengthy which gave rise to risks, undetected by the nurses
responsible for Ms Mpetsheni, that cumulatively contributed to the acute profound
injury suffered by Luyanda.

[20] It was argued that this factual premise is supported by the evidence led at the
trial. Counsel relied upon the evidence of Dr Ndjapa-Ndamkou. He testified that,
during his consultation with Ms Mpetsheni, she had told him that a nurse had
informed her at 13h00 that she would give birth at 16h00. If this was what a nurse

believed at the time, it gives rise to the possibility that Ms Mpetsheni entered the
active phase of her labour in the afternoon of 3 December 2005. Given the time of
Luyanda’s birth at 22h00, Ms Mpetsheni would have been in the active phase of her
labour for a lengthy time, with attendant risks.

[21]  The difficulty with this evidence is that Ms Mpetsheni, who testified both
before and after Dr Ndjapa-Ndamkou, made no mention of what the nurse had said
to her. This is an important omission. What Dr Ndjapa-Ndamkou recounted of his
consultation is hearsay. The difficulty is not simply technical. Absent some cogent
evidence that what was allegedly said by the nurse is supported by some other
evidence that Ms Mpetsheni had entered the active phase of her labour during the
afternoon, the hearsay evidence, even if considered, carries very little weight.

[22]  The supporting evidence relied upon was this. Dr Ndjapa-Ndamkou placed
some reliance on the guidance that dilation in the latent phase of labour takes places
at 1-2 cm per hour. An extrapolation using this guidance might suggest that Ms
Mpetsheni would have given birth at 16h00, and this coincided with what she
reported to Dr Ndjapa-Ndamkou the nurse had indicated to her. This was also
consistent with the evidence of Ms Mpetsheni that at 13h00 she was feeling such
pain that it did not permit her to lie on the bed until the contractions abated. Given
when it was that the birth in fact occurred, Ms Mpetsheni endured a long active phase
of labour that could have contributed to the risk of foetal distress.

[23] The difficulty with this evidence is that it rests upon the assumption that the
progress of Ms Mpetsheni’s labour followed the course of the guidance. There are
no records as to the progress of her labour. There was some evidence of an

examination of Ms Mpetsheni at 13h00, though this was not confirmed in the
testimony of Ms Mpetsheni. There was no evidence given as to what the examination
revealed. Professor Buchmann testified that there are very great variations as to the
rate of dilation between women, and there is thus little to be learnt from the
extrapolation exercise relied upon by Dr Ndjapa-Ndamkou.

[24] Absent some direct evidence as to the course of Ms Mpetsheni’s labour, the
sparse details given by Ms Mpetsheni and the speculative generalisations offered by
Dr Ndjapa-Ndamkou do not provide evidence of sufficient weight to support the
nurse’s estimate of 16h00, even if made, as being a plausible time at which the birth
might have been expected to take place.

[25]  What the evidence does establish is that Ms Mpetsheni cried out in pain at
21h00. She was then taken to the labour ward, a drip inserted, and she was attended
upon by two midwives. Fundal pressure was applied by one of the midwives. There
was some difficulty in the birth taking place. An episiotomy was performed, and
Luyanda was born at 22h00.

[26]  Without clear evidence that there was a long period of active labour that
might have compromised the foetus and thereby contributed, in some way, to the
injury suffered by Luyanda, there is no factual basis for the cumulative risk
argument. Mere supposition will not suffice.

[27] The cumulative risk argument flounders for another reason. Professor
Buchmann was very clear as to the nature of an acute profound injury. It is of short
duration, and sudden onset, and generally occurs 30 minutes before delivery. In the

evocative language of Professor Buchmann, it is caused by a catastrophic sentinel
event. Dr Ndjapa-Ndamkou was constrained to accept this.

[28] The efforts by the court below to characterise the injury as being a mixed
injury pattern cannot be supported on the evidence before the court. Dr Ndjapa-
Ndamkou’s evidence was at odds with itself. He accepted that this was a case of an
acute profound injury, yet he sought to implicate features of the case that are
consistent with a prolonged partial injury. In particular, his efforts to suggest that
there was a prolonged labour was the basis for suggesting that asphyxia might have
developed slowly over several hours. But that is the very hallmark of a prolonged
partial injury. Precisely what Dr Pretorius said it was not.

[29]  There is simply no adequate basis upon which the factual evidence and a
proper appreciation of the expert evidence supports the cumulative risk argument.

[30] I turn to the excessive fundal pressure argument. The issue here is well
defined: could the midwife have applied such excessive fundal pressure so as to
cause the catastrophic sentinel event that so grievously injured Luyanda?

[31] Professor Buchmann’s evidence was this. An acute profound event represents
a complete shut-off of blood flow to the brain. After 10 minutes, brain damage starts;
and after 25 minutes, most of the brain is damaged. Dr Ndjapa-Ndamkou was in
agreement that an acute profound event would mean a complete occlusion of the
cord for a period of between 15 and 20 minutes.

[32] When Ms Mpetsheni first gave her evidence, she explained that after 21h00
she was taken to the labour ward. There, in the course of her labour, one of the
midwives pressed on the top side of her abdomen to assist her, as Ms Mpetsheni was
pushing. Dr Ndjapa-Ndamkou referenced in his report that he had been told by Ms
Mpetsheni that excessive forceful pressure was applied. At trial, when this evidence
was sought to be led, counsel for the appellant objected on the basis that the evidence
was hearsay. This led to the recall of Ms Mpetsheni. Upon her recall, Ms
Mpetsheni’s evidence was that the midwife applied hard pressure to her abdomen
and slapped Ms Mpetsheni on her right flank. The duration of this pressure was 5
minutes on and 5 minutes off (the 5/5 regime). Under cross-examination, when asked
how Ms Mpetsheni could recall this timing so long after the event and given the pain
of childbirth, Ms Mpetsheni reported that she had heard that the 5/5 regime was
being applied from the midwives. Ms Mpetsheni also recalled that the 5/5 regime
was applied three times before the baby was delivered.

[33] The appellant submitted that the evidence of hard pressure and the 5/5 regime
should not be believed. It did not figure when first Ms Mpetsheni gave evidence, and
it was implausible that Ms Mpetsheni could remember what she claims the midwives
said, given that she was in the final stage of labour. Certainly, the trial court had
some difficulty in believing this evidence, which was described as ‘bizarre’.5

[34] It is unnecessary to express a firm view on this aspect of the matter. Here, too,
Professor Buchmann’s evidence is clear and not refuted by Dr Ndjapa-Ndamkou.
An acute profound injury requires a complete cut-off of blood flow in excess of 10

5 Luyanda (above fn 1) para 87.

minutes to start causing significant brain injury. The account given of the 5/5 regime
does not do this. Professor Buchmann considered that this fundal pressure could not
have caused the acute profound injury and he was sceptical that any midwife was
capable of applying significant pressure for 5 minutes. Dr Ndjapa-Ndamkou, while
accepting that complete occlusion was required, nevertheless maintained that the 5/5
regime might have compromised the recovery of the foetus. Here, too, the evidence
of Dr Ndjapa-Ndamkou appears to be internally inconsistent. If the type of injury
occurring in cases of acute profound injury requires a complete cut-off of blood flow
in excess of 10 minutes, then it is unclear how pressure that does less than this, on
three occasions, compromised recovery so as to bring about the same result.

[35] For these reasons, the excessive fundal pressure argument cannot be
sustained.

[36] Once this is so, the following conclusions follow. First, Dr Pretorius had
determined that the injury suffered by Luyanda was an acute profound injury.
Second, an acute profound injury, as Professor Buchmann explained, with the
ultimate concurrence of Dr Ndjapa-Ndamkou, was a catastrophic sentinel event of
short duration and sudden onset, occurring in all likelihood 30 minutes before the
birth. Third, what was done by the nursing staff in the last hour of Ms Mpetsheni’s
labour was not causally implicated in the acute profound injury suffered by Luyanda.
Fourth, there is neither sufficient evidence nor a defensible basis on the expert
evidence to find that the risks arising from a lengthy period of labour occurred in
this case. Even if they had, these risks were not causally operative in bringing about
the brain injury suffered by Luyanda.

[37] It follows that the appeal must succeed.

[38] A few final observations are warranted.

[39] First, Professor Buchmann’s opinions were clearly stated and firmly held. I
can discern no taint of bias in the manner in which Professor Buchmann defended
his position. The court below was not justified in attributing bias to Professor
Buchmann. Quite the contrary, his opinions have been of considerable assistance in
determining this appeal. A court may decide that an expert opinion is incorrect, but
a court should be slow to attribute bias to an expert of high standing because of the
conviction with which the expert defends his opinions.

[40] Second, counsel for the appellant submitted that the court below exhibited
bias. In the light of the conclusion to which I have come, there is no need to traverse
the detail of this submission. What is at stake in a trial of the kind before Hartle J
could not be of greater consequence. In these circumstances, it is of great importance
that counsel and the court place a premium upon the dignity and reciprocal respect
that allows courts to determine difficult cases.

[41] Third, counsel for the appellant made it plain that in the event that the
appellant prevailed in the appeal, no costs were sought, either in the appeal or in
respect of the trial. This was a proper stance to adopt.

[42] The following order is made:
(a)
The appeal is upheld.
(b)
The order of the high court is set aside and replaced by the following order:

‘The plaintiff’s claim is dismissed.’

________________
D N Unterhalter
Acting Judge of Appeal

APPEARANCES

For appellant:
P de Bruyn SC (with him N D Ngadlela)
Instructed by:
State Attorney, East London

State Attorney, Bloemfontein

For respondent:
D Brown (with him T Mduba)
Instructed by:
Dudula Yandis Attorneys, Johannesburg
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED
Member of the Executive Council for Health, Eastern Cape v Mpetsheni obo Mpetsheni
(Case no 576/2019) [2020] ZASCA 169 (14 December 2020)
From:
The Registrar, Supreme Court of Appeal
Date:
11 December 2020
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form
part of the judgments of the Supreme Court of Appeal

Today the Supreme Court of Appeal (SCA) handed down judgment in an appeal against an
order of the Eastern Cape Division of the High Court, Bhisho (Hartle J), which turned mainly
on the high court’s treatment of the opinion of an expert witness. The appeal was upheld.

The matter concerned an action for damages, instituted by Ms Mpetsheni on behalf of her minor
son, Luyanda (the child). The child suffered a severe brain injury during labour, due to a lack
of oxygen and blood flow, and was consequently born with severe brain damage. As a result,
the child suffers from cerebral palsy. Ms Mpetsheni alleged that the child’s injuries were due
to the hospital staff’s negligence.

The appellant and Ms Mpetsheni were in agreement in respect of two issues at the trial: that
the period in contention was the second stage of labour; and that the report of Dr Pretorius, an
expert radiologist, along with its addendum, be admitted into evidence. In this report Dr
Pretorius concluded that the MRI scan indicated an acute profound hypoxic ischemic event that
occurred during labour (as opposed to a prolonged partial brain injury that occurred during
labour). The former is severe – a total or near-total lack of oxygen, occurring suddenly and
lasting only for a brief period, generally occurring 30 minutes prior to delivery. The latter is a

less severe injury that develops slowly, over several hours, and is often preceded by a
deteriorating foetal heart rate that gives a warning of developing hypoxia, ie a lack of oxygen.

The expert called to testify on behalf of the appellant stated that an acute profound injury is
caused by a catastrophic sentinel event which, in this case, was most likely the compression of
the child’s umbilical cord. The expert who testified on behalf of Ms Mpetsheni ultimately
agreed. Nevertheless, the high court took a different view, holding that the possibility of a so-
called ‘mixed injury pattern’ – an injury pattern that is partly characteristic of an acute profound
injury and partly characteristic of a prolonged partial injury – could not be ruled out on the
evidence. This view was based on the judge a quo’s own recourse to literature, coupled with
the absence of substantiating reasons proffered by Dr Pretorius in support of his conclusion.

The principal issue on appeal was thus whether the high court legitimately departed from the
opinion of Dr Pretorius, namely that the child had suffered an acute profound injury. On this
score the SCA found that the high court had erred. While in the normal course a court is to
consider the opinion of an expert and come to its own conclusions, this case was different
because the parties had agreed to accept the conclusion reached by Dr Pretorius and for the
trial to proceed on this basis. The SCA held that a judge was not, as a rule, permitted to perform
an independent analysis of the subject-matter by having recourse to literature not introduced
into evidence, and without notice to the parties, especially where the parties had already
accepted the opinion of an expert.

The SCA accordingly approached the matter from the premise that the parties had agreed to
adopt at the trial, ie that Luyanda suffered an acute profound injury. Such injury resulted from
a catastrophic event, which meant that the high court’s consideration of the cumulative risks
borne by Ms Mpetsheni – the rupture of her membranes, the length of her labour, the failure
by hospital staff to undertake proper monitoring, and the fundal pressure applied to her belly –
were altogether irrelevant. It added nothing to the enquiry into the catastrophic event that
caused the child’s acute profound injury.

The SCA concluded that what was done by the hospital staff in the last hour of Ms Mpetsheni’s
labour was not causally implicated in the acute profound injury suffered by the child.

In the result, the appeal was upheld. Counsel for the appellant made it plain that if the appeal
was good, no costs would be sought. The SCA agreed that this was the proper stance to adopt.

________________________________________