REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
In the matter between:
Bezuidenhout v Nel (I 3107/2010)  NAHCMD 134 (17 May
Coram: MILLER AJ
Heard: 05 –
07 November 2012; 11 March 2013; 13 March 2013
Delivered: 17 May
The claim is dismissed
with costs which include the costs of one instructing and one
MILLER AJ :
 On 11 September 2007
and at the Roman Catholic Hospital in Windhoek the plaintiff
underwent surgery, performed by the defendant a specialist surgeon to
repair an incisional hernia.
 It became apparent
during the course of the surgery that certain lesions attached to
inter alia the bowels of the plaintiff which the defendant had
to dissect free. This according to the defendant rendered the
surgical procedure more difficult than it would have been otherwise.
 In the process a
small enterotomy or rupture was made. This was however detected
immediately and sutured. No further complications or consequences
followed from that.
 At the conclusion of
the procedure, according to the defendant, he tested the plaintiffs’
bowels for leaks and none were detected.
 Post operatively the
plaintiff developed complications as a result of which the defendant
was summoned at around midnight on the same day.
 There is a dispute on
what is an important issue. That dispute is whether or not the
defendant had visited the plaintiff at 8h00 on the morning of 12
 The plaintiff’s
case is that he was not seen by the defendant, whereas the latter is
adamant he did indeed visit the plaintiff.
 The defendant says
that on that occasion he gave directions to the hospital staff to
give the plaintiff clear fluids and to administer maintelyte at the
rate of 100 milliliters per hour.
 The defendant refers
to Exhibit “L” which is a medication prescription chart
of the relevant hospital which contains such instructions and the
date of 12 September 2007. It does not however contain the names or
particulars of the patient concerned.
 Similarly the
hospital records kept by the hospital staff, which were produced at
the trial have no entry relating to a visit by the defendant to the
plaintiff at 8h00 on 12 September 2007.
 The evidence of the
plaintiff on this issue is not consistent. Whereas he initially
stated in evidence that the defendant did not pay him a visit, he
conceded in cross-examination that he could not recall whether he was
seen by the defendant. His evidence also stands in contradiction to
the subsequent letter dated 7 July 2009 and addressed to the Health
Professional Council of Namibia. The letter was signed by the
plaintiff’s wife but it is apparent to me that the plaintiff
was instrumental in the drafting thereof. In that letter reference is
made to the disputed visit.
 In order to resolve
this dispute I had regard to the following factors. Firstly there is
the direct testimony of the defendant that such a visit took place.
The defendant was a good although at times an impatient witness.
 There is some
corroboration for his evidence in the medication prescription chart
 Mr. Ipumbu who
appeared for the plaintiff submitted that the document has no value
because the plaintiff’s particulars do not appear on it. It is,
however, highly improbable that on the same day some other doctor had
given identical directions to some other patient and that
fortuitously the defendant came to know about it and more
fortuitously that it had found its way to the records pertaining to
 Mr. Ipumbu did not
seek to persuade me that I should rely on the evidence of the
plaintiff. Instead he sought to rely on the absence of an entry on
the plaintiff’s hospital records recording the disputed visit.
 The short answer to
that is that nothing was placed before me to the effect that the
records that were kept were complete in the sense that every visit
 When I consider the
evidence and evidential material, the merits and demerits of the
witnesses, the probabilities and circumstances surrounding the case I
find that the defendant did visit the plaintiff on the morning of 12
 To return to
summarizing the facts, the plaintiffs’ condition deteriorated
to the extent that the defendant decided on 13 September 2007 to
perform surgery on the plaintiff once more to insert a drain.
 During the course of
that procedure the defendant noticed that the intra-abdominal fluid
of the plaintiff was in fact intestinal fluid which indicated a
perforation of the bowel.
 A laporatomy was
performed and a leak from a small perforation of the bowel in
proximity to the previous one which have been sutured on 11 September
2007 was found. The perforation was sutured and appropriate measures
were taken to combat the complications this caused.
 It is however not in
dispute that the medical complications caused by the rupture of the
bowel had far reaching consequences for the plaintiff who had to
suffer further surgery and an extended stay in hospital together with
the pain and discomfort that goes with it.
 In the result and on
10 September 2010 the plaintiff issued summons against the defendant.
The action is one in delict. In his particulars of claim the
plaintiff alleged several grounds upon which it says the defendant
 At the conclusion of
hearing I was informed by Mr. Ipumbu that only two of these were
persisted with. These were firstly that the defendant was negligent
in that he perforated the plaintiffs’ bowels and secondly that
the defendant had neglected to rectify the post-operative
complications developed by the plaintiff.
 The plaintiff claims
damage from the defendant in the sum of N$400.000.00.
 I may add that
further claims relating to a subsequent removal of the plaintiff’s
gall bladder and a claim for loss of income was not persisted with.
 The onus to
establish negligence rests on the plaintiff.
 On that issue I,
apart from the testimony of the plaintiff and the defendant, heard
the evidence of Professor Thomson and Professor Warren. They clearly
are qualified and quite capable of expressing credible opinions on
I had the benefit of a joint report prepared by them. In the end both
were unanimous in their opinions. As far as the rupture complained of
is concerned, they
state that either the rupture occurred during the surgery performed
on 11 September 2007 and was not detected which is a recognized
complication. Otherwise the bowel tissue became damaged and weakened
during the course of the surgery and ruptured post-operatively once
the bowel had built up pressure. Nothing in any event points to
negligence in their opinion.
As far as the post-operative care is concerned they agreed that it
would have been negligent not to have seen the plaintiff on the
morning of the 12th September 2007.
 They further agreed
that had such a visit taken place, the steps taken then were based on
clinical judgment which was reasonable.
 Taking into account
the totality of their evidence and their collective wisdom which
guide me, I have come to the conclusion that their respective views
are sound and can not in any respect be faulted.
 It follows that the
plaintiff did not prove any of the grounds for negligence relied
 The claim is
dismissed with costs which include the costs of one instructing and
one instructed counsel.
P J MILLER
PLAINTIFF : T IPUMBU
Of Titus Ipumbu Legal
DEFENDANTS: C VAN DER
Of Engling, Stritter &