THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

REPORTABLE
Case No: 575/2012

In the matter between:

GABRIEL BUTHELEZI

APPELLANT

v

PRISCILLA ZANELE NDABA

RESPONDENT

Neutral citation:
Buthelezi v Ndaba (575/2012) [2013] ZASCA 72 (29 May 2013).

Coram:

Brand, Lewis, Cachalia, Majiedt JJA et Saldulker AJA
Heard:

13 May 2013
Delivered:

29 May 2013

Summary:

Alleged medical malpractice – determination of negligence
on the part of the surgeon – not to be inferred from concession by surgeon
that something must have gone wrong during the operation – dependent on
evaluation of the reasoning underlying conflicting expert opinions

________________________________________________________________

ORDER
________________________________________________________________

On appeal from:  KwaZulu-Natal High Court, Pietermaritzburg (Jappie J sitting as
court of first instance):
The appeal is upheld with costs.
The order of the court a quo is set aside and replaced with the following:

‘The plaintiff’s claim is dismissed with costs.’
________________________________________________________________

JUDGMENT
________________________________________________________________

BRAND JA (LEWIS, CACHALIA, MAJIEDT JJA et SALDULKER AJA
CONCURRING):

[1] This is a case about alleged medical negligence. The appellant, Dr Gabriel
Buthelezi,
practises
as
a
specialist
gynaecologist
and
obstetrician
in
Pietermaritzburg. On 13 February 2006 he performed a surgical operation known as
a total abdominal hysterectomy on the respondent, Ms Priscilla Ndaba. Some time
after the operation, she began to suffer from urine incontinence. Further examination
by a urologist revealed the cause of her problem to lie in what is known in medical
parlance as a vesico-vaginal fistula which can be described in layman’s terms as a
hole in the posterior wall of the bladder and the contiguous anterior wall of the
vagina. What happened in these circumstances, so the medical experts explained,
was that urine passed from the bladder to the vagina above the control mechanisms
which caused the urine incontinence. Relying on these facts, the respondent
instituted an action against the appellant in the court a quo for the damages she
suffered in consequence of the vesico-vaginal fistula (the fistula) which resulted from
his alleged negligence in performing the hysterectomy operation.

[2] When the matter came before Jappie J in the court a quo he was asked, by
agreement between the parties, to determine the issues pertaining to the appellant’s
liability first while the quantum of the respondent’s alleged damages stood over for
later determination. During the preliminary proceedings that followed, it became
apparent that the only relevant dispute hinged on whether or not the appellant was
negligent and that this question in turn depended on an election between the
opposing views expressed by two medical experts in this regard. On the one hand
Prof R W Green-Thompson testified, on behalf of the respondent, that in his view the
appellant was negligent in performing the hysterectomy operation. On the other
hand, the appellant’s expert witness, Prof L Snyman, took the position that he was
not. At the end of these proceedings Jappie J upheld the respondent’s claim on the
merits with costs. In consequence he ordered the appellant to pay the respondent
such damages as either agreed on or as the respondent may prove at the second
stage of the trial. The appeal against that judgment is with the leave of the court a
quo.

[3] I find it convenient to start the recital of the facts with an introduction of the
medical specialists involved in the order that they testified. First, there was Dr Abdul
Dada, a specialist urologist who was called to testify on behalf of the respondent and
who was responsible for diagnosing and eventually repairing the fistula that caused
the incontinence problem. Secondly, there was Prof Green-Thompson, the former
head of the department of obstetrics and gynaecology at the Faculty of Medicine,
University of KwaZulu-Natal, to whom I have already referred. Thirdly, there was the
appellant himself who testified on his own behalf. Albeit that he was not called as an
expert witness, it transpired that when he performed the operation on the
respondent, he had practised as a specialist in his field for nearly 20 years during
which period he had carried out about 1 000 hysterectomy operations. Finally there
was the appellant’s expert, Prof Snyman, who held a joint appointment as professor
of medicine at the University of Pretoria and the principal specialist at the
department of obstetrics and gynaecology at the Kalafong Hospital in Atteridgeville,
Pretoria.

[4] Before I turn to the differences in opinion  between these medical specialists
that emerged during the trial, I propose to deal with the large areas of their testimony
which proved to be common cause. First amongst these was the fact that the fistula
of about one centimetre in diameter, which was observed by Dr Dada some six
weeks later during the remedial operation, did not occur during the hysterectomy,
nor immediately thereafter, but that it progressively developed over the ensuing
period. At the same time the specialists agreed that the development of the fistula
did not start spontaneously, but that it was triggered by something that happened
during the hysterectomy. On this aspect they specifically agreed that the following
factors, singularly or in combination, could not in themselves cause the fistula: the
fact that the respondent was HIV positive; that she suffered from diabetes; that she
had previously undergone a caesarean section; and that she had been struggling
with chronic pelvic infection at the time. Yet, they also concurred that because of
these factors, the respondent was at an increased risk of the formation of a fistula.

[5] An abdominal hysterectomy without complications, so the medical specialists
further agreed, involves the removal of the uterus from the upper part of the vagina,
known as the vaginal vault, and the subsequent closing of the hole in the vault
caused by the removal. The bladder lies anterior to the uterus and although the two
organs are in close proximity, they do not share the same wall nor the same blood
supply. Of critical importance, so the specialists agreed, is to separate the bladder
from the uterus before the operation starts and to protect it from harm during the
operation. Normally the separation presents little difficulty, because the connection
between the two organs consists of what is described as loose areola tissue. But if
the patient had undergone a previous caesarean section, it is likely that there will be
some tethering or adhesions between the two organs which the surgeon has to cut
through with some sharp surgical instrument.

[6] Prof Green-Thompson’s thesis as to what happened in this case is that,
during the hysterectomy operation, some damage was caused to the blood supply to
an area of the bladder wall. The compromised area then became devascularised –

that is, deprived of blood – which in turn led to a progressive tissue necrosis of the
bladder wall and eventually to the formation of the fistula. Because no direct damage
to the bladder wall occurred during the surgery, the problem would not have been
noticeable at the time. The fistula developed and increased over time through
ongoing tissue necrosis in the devascularised part of the bladder wall. That explains
why the respondent’s urine incontinence did not manifest itself immediately
subsequent to the operation, but only some time thereafter.

[7] As to when and how the damage to the blood supply of the bladder wall
occurred, Prof Green-Thompson expressed the view that it happened either when
the bladder was separated from the uterus or when the uterus was removed from
the vaginal vault. In any event, he said, the problem was caused by the appellant’s
failure to ensure that the bladder was kept separate and safe during the course of
the operation. If reasonable precautions had been taken, so Prof Green-Thompson
concluded, the injury to the bladder would not have occurred. What Prof Green-
Thompson’s opinion thus amounted to, as I understand it, was that the fact of the
injury to the respondent’s bladder inevitably gave rise to the inference that
reasonable precautions were not taken and hence that the appellant was negligent.

[8] The appellant’s independent recollection of the operation on the respondent
was virtually non-existent and his contemporaneous notes were not of much
assistance. These recorded only that ‘a standard TAH” ie a total abdominal
hysterectomy was done; that there was some difficulty due to oozing of the vaginal
vault; and that haemostasis was secured, ie that the oozing was stopped. This
meant, so the appellant testified, that it was a straightforward operation; that there
were no complications and no difficulties, save for the oozing of the vaginal vault,
which had soon been resolved. Whether or not there were tetherings or attachments
between the respondent’s uterus and bladder, as a result of her previous caesarean
section, he could not remember. But if there were, he would not regard it as a
problem worthy of mention because he had encountered it on so many occasions in
the past.

[9] The reference to a ‘standard TAH’ in his notes also led him to the inference
that he used the standard technique which he always applied in the many
hysterectomy operations he performed before and after this one. Part of his standard
procedure, so the appellant testified, was firstly to ensure the separation of the
bladder from the uterus before the operation starts and to protect it from harm.
Under cross-examination he confirmed that he had heard of the remedial operation
by Dr Dada about six weeks after the hysterectomy and that he then realised that
the fistula which necessitated the operation probably resulted from something that
happened during the hysterectomy. At that time he therefore gave thought to what
he could have done differently from what he routinely did during the literally
hundreds of other hysterectomy operations that he had performed, but nothing came
to his mind.

[10] He further said under cross-examination that Prof Green-Thompson could be
correct in his thesis that the fistula resulted from damage to the blood supply to the
bladder during the operation and that this could have happened either when he
separated the bladder from the uterus, when he removed the uterus from the vaginal
vault, or even when he stopped the blood oozing from the vault after the removal of
the uterus by putting in stitches. He also conceded the feasibility of the proposition
raised for the first time by the respondent’s counsel in cross-examination, namely,
that the fistula could have resulted from infection which was in turn brought about by
blood collecting in the area where the oozing occurred and which he did not remove.
With reference to this possibility, it was not suggested to the appellant that his failure
to remove the accumulated blood would constitute negligence on his part.

[11] Further statements by the appellant which ultimately weighed heavily with the
court a quo in concluding that he was negligent, emanated from questions by Jappie
J himself. These appear from the following quotation of the evidence in the judgment
of the court a quo:

‘You can’t recall as what you did during the operation in regard to the bladder wall except to
say you would have performed and used your standard technique? – Yes. Would that be fair
to you?
So if the bladder and we must accept because it is common cause that the bladder was
compromised, you can only speculate as to how that may well have happened? – Yes.
You can’t take it any further than that? – No I could not. And if it is suggested to you that it
should not have happened, what would your response be? – . . . [M]y response would be it
should not have happened, I would agree with that. It should not have happened.
But we know it did happen? – . . . Yes.’

[12] In his testimony Prof Snyman underscored the fact that no one really knew
how the fistula came about and that all the theories advanced, including the one by
Prof Green-Thompson, amounted to no more than speculation. Although he did not
deny that Prof Green-Thompson’s thesis could be valid, his view was that there were
other hypotheses that would have an equal claim to validity. Amongst these he
seemed to prefer the possibility of a small cut in the bladder wall which occurred
when the bladder was separated from the uterus, particularly because of the
potential tetherings or adhesions resulting from the respondent’s previous caesarean
section. The injury thus caused, he explained, could have been so small that it was
not noticeable during the operation. Yet, over time and especially in the light of the
respondent’s diabetes and the chronic pelvic infection from which she suffered, the
small injury could have developed into the fistula. Another possibility that he
recognised was the one suggested to the appellant in cross-examination, to wit, that
the fistula resulted from an infection in the vaginal vault which was in turn caused by
accumulated blood in the area of the oozing which had not been removed. With
regard to the latter possibility Prof Snyman stated, however, that failure to remove
the accumulated blood would not constitute negligence per se because ‘[t]here is
good evidence that if you do not remove blood after an operation . . . it does not
cause any problems . . . [because] the body absorbs [the accumulated blood]’.

[13] What Prof Snyman also emphasized was that the occurrence of a fistula does
not in itself justify an inference – as Prof Green-Thompson seemed to suggest – of

negligence on the part of the surgeon. On the contrary, he said, the development of
a fistula is widely recognised as a consequence of hysterectomy operations that
cannot always be avoided, however careful the surgeon might be and whatever
precautionary measures he or she may take. In this regard he referred to
international medical journals that were placed before the court a quo, which
supported his opinion. In one of these it is stated, for example, that:
‘[Even if] the operation . . . [is] performed to an adequate standard . . . it would be generally
agreed that inadvertent bladder injury is a recognised complication of hysterectomy and can
occur even with careful surgical technique.’

[14] I have said at the beginning that the outcome of the dispute as to whether or
not the appellant’s performance of the surgery, which led to the respondent’s injury,
could be described as negligent, ultimately turns on an election between the
opposing views of two expert witnesses. It is true, of course, as the court a quo
accentuated in its judgment, that the determination of negligence ultimately rests
with the court and not with expert witnesses. Yet that determination is bound to be
informed by the opinions of experts in the field which are often in conflict, as has
happened in this case. In that event the court’s determination must depend on an
analysis of the cogency of the underlying reasoning which led the experts to their
conflicting opinions.

[15] That analysis, so it seems to me, was never undertaken by the court a quo in
this case. As I understand its judgment, the court was swayed in favour of the
respondent’s expert by what it regarded as an admission of negligence on his part
by the appellant himself. As appears from the quotation from the appellant’s
evidence by the court a quo, all he admitted, however, was that the injury to the
respondent’s bladder should not have happened unless something went wrong
during the hysterectomy. As I see it, that does not amount to an admission of
negligence. After all, as Lord Denning MR observed in Hucks v Cole [1968] 118 New
LJ at 469:

‘With the best will in the world things sometimes went amiss in surgical operations or
medical treatment. A doctor was not to be held negligent simply because something went
wrong.’
Or as Scott J said in Castell v De Greef 1993 (3) SA 501 (C) at 512A-B:
‘The test remains always whether the practitioner exercised reasonable skill and care or, in
other words, whether or not his conduct fell below the standard of a reasonably competent
practitioner in his field. If the “error” is one which a reasonably competent practitioner might
have made, it will not amount to negligence.’

[16] Turning to the conflicting views of the respective experts, it appears that Prof
Green-Thompson’s underlying reasoning departs from the inference that the injury to
the respondent’s bladder would not have occurred if the appellant was not negligent.
To me that seems reminiscent of an application of the res ipsa loquitur maxim, which
the court a quo quite rightly found inappropriate in this case. I say quite rightly
because, as was pointed out in the locus classicus on medical malpractice, ie Van
Wyk v Lewis 1924 AD 438 at 462, that maxim could rarely, if ever, find application in
cases based on alleged medical negligence. The human body and its reaction to
surgical intervention is far too complex for it to be said that because there was a
complication, the surgeon must have been negligent in some respect. Logic dictates
that there is even less room for application of the maxim in a case like this, where it
has not even been established what went wrong; where the views of experts are all
based on speculation – giving rise to various, but equally feasible possibilities – as to
what might have occurred. Moreover, although Prof Green-Thompson did not deny
the authority of the international publications, put to him in cross-examination, that
contradict his conclusions, he simply seemed to ignore their content. In sum I thus
find Prof Green-Thompson’s opinion ill-supported by his reasoning.

[17] By contrast, Prof Snyman’s opinion, based on his expertise and experience in
practice, that this type of injury may result from a hysterectomy operation despite
reasonable care on the part of the surgeon, appears to be well-supported by views
expressed in international journals in the field. In fact, these publications seem to
indicate that this type of injury to the bladder is generally accepted as one of the

inherent risks of a hysterectomy operation. In these circumstances, I consider that
the court a quo erred in finding that negligence on the part of the appellant had been
established.

[18] In the result:
The appeal is upheld with costs.
The order of the court a quo is set aside and replaced with the following:

‘The plaintiff’s claim is dismissed with costs.’

____________________
F D J BRAND
JUDGE OF APPEAL

APPEARANCES:

For Appellant:

J Marais SC

Instructed by:

MacRobert Inc

DURBAN

Correspondents:

Claude Reid

BLOEMFONTEIN

For Respondent:

F M Moola SC

Instructed by:

Sarawan & Co

PIETERMARITZBURG

Correspondents:

Honey Attorneys

BLOEMFONTEIN
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
29 May 2013
Status:
Immediate

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

Buthelezi v Ndaba (575/2012) [2013] ZASCA 72 (29 May 2013)

The Supreme Court of Appeal (SCA) handed down judgment today in an appeal from the
KwaZulu-Natal High Court, Pietermaritzburg (High Court). The matter involved a specialist
gynaecologist – the appellant – and his erstwhile patient – the respondent – on whom he
performed a surgical operation known as a total abdominal hysterectomy. After the operation
the patient suffered from urine incontinence. Subsequent examination by a urologist revealed
the cause of the patient’s problem to lie in a fistula or hole in the patient’s bladder wall.
Though it was common cause that the hole resulted from something that happened during the
hysterectomy operation, the question was whether it was due to negligence on the part of the
appellant. That was the only issue in both the High Court and on appeal.
In the High Court there was a difference of opinion between expert witnesses on this issue.
The expert called on behalf of the patient expressed the view that the doctor was negligent
while the expert on behalf of the doctor believed that he was not. The High Court accepted
the opinion of the former and thus upheld the patient’s claim.
On appeal, Brand JA, noted that while the final determination of negligence is within the
exclusive purview of the court, it is nevertheless informed by the opinions of experts; where
there is a dispute between such opinions, the court is then called upon to analyse the cogency

of the underlying reasoning thereof. In undertaking such analysis, the SCA held that the
opinion of the expert witness in favour of the patient’s claim was reminiscent of the res ipsa
loquitur (facts speak for themselves) maxim. It is trite law that this is not generally applicable
in matters of medical negligence, due to the complexity of the human body and its reaction to
surgical intervention. Consequently, the underlying reasoning of that expert witness’ opinion
did not withstand the scrutiny of the SCA.
Conversely, the opinion of the expert witness in favour of the appellant doctor’s case –
namely that such injuries may result from a hysterectomy operation despite reasonable care
on the part of the surgeon – was well-supported throughout medical scholarship.
Consequently, this Court held that the court a quo had erred in finding that negligence on the
part of the appellant had been established. Hence the appeal was upheld with costs.