NSS obo AS v MEC for Health, Eastern Cape Province

The appellant, as mother and natural guardian of her minor son (the child), sued the respondent for compensation. The child sustained perinatal asphyxia during labour in 2006 at St Patrick's Hospital, Mthatha, rendering him a cerebral palsy quadriplegic. The plaintiff delivered expert reports from paediatric radiologists Prof J W Lotz (30 July 2015) and Dr B Alheit (27 July 2019), both opining based on MRI scans that the child suffered an acute profound hypoxic ischaemic injury. The defendant's attorneys wrote to the plaintiff stating that these expert summaries were "admitted" and could "be handed in as evidence". The plaintiff subsequently delivered a supplementary report from Dr Alheit (21 August 2019) explaining that while the injury pattern appeared acute profound, it could develop over time without a sudden sentinel obstetric event. The defendant objected, claiming section 15 of the Civil Proceedings Evidence Act 25 of 1965 precluded the plaintiff from adducing evidence contradicting the "admitted" expert reports. During trial, the high court granted the defendant's application and ordered that the plaintiff could not adduce evidence to disprove the contents of the two earlier expert reports.

• Whether a statement by a party that an opponent's expert opinion can be handed in as evidence constitutes a 'fact admitted on the record' within the meaning of section 15 of the Civil Proceedings Evidence Act 25 of 1965
• Whether a party can bind the court to the opinion of the opponent's expert witness
• Whether the high court's order preventing the plaintiff from adducing expert evidence was appealable
• Whether a court is entitled to make findings contrary to the opinions of experts, even where their reports are agreed

The appeal was upheld with costs, including costs of two counsel. The high court's order was set aside and replaced with an order dismissing the defendant's application that the plaintiff was not entitled to adduce evidence to disprove the contents of Prof Lotz's report dated 30 July 2015 and Dr Alheit's report dated 27 July 2018, with costs including costs of two counsel.

A statement by a party that an opponent's expert opinion can be handed in as evidence is not a 'fact admitted on the record' within the meaning of section 15 of the Civil Proceedings Evidence Act 25 of 1965. Expert opinions are not facts that can be formally admitted to bind the court. A party cannot bind the court to the opinion of an opponent's expert witness by merely conceding that the opinion is correct - the decision on expert evidence is for the court, not the witness. Courts are entitled to, indeed must, evaluate expert evidence by analyzing the reasoning process and premises, and may make findings contrary to the opinions of experts even where their reports are agreed. Experts have a principal and overriding duty to the court to contribute to the just determination of disputes, not to the party by whom they are retained.

The Court noted that to the extent the judgment in MEC for Health, Eastern Cape v DL obo AL [2021] ZASCA 68 could be understood as meaning that section 15 applies to expert opinions, it should not be followed. The Court emphasized that section 28(2) of the Constitution provides that a child's best interests are of paramount importance in every matter concerning the child, which was relevant given the irreparable prejudice the high court's order would cause to the permanently disabled child. The Court also discussed the distinction between acute profound hypoxic ischaemic injury (sudden onset) and partial prolonged hypoxic ischaemic injury (developing over time), noting that this distinction has been significant in many medical negligence cases where claimants failed to prove causation due to the undetectable onset of acute profound injuries.

This case clarifies the scope and application of section 15 of the Civil Proceedings Evidence Act 25 of 1965 regarding formal admissions. It establishes important principles concerning expert evidence: (1) expert opinions are not "facts" that can be formally admitted to bind a court; (2) a party cannot bind the court to an opponent's expert opinion by merely conceding its correctness; (3) courts retain the duty and discretion to evaluate all expert evidence and may make findings contrary to expert opinions even where agreed; (4) experts owe their primary duty to the court, not to the party retaining them. The judgment protects litigants' rights to adduce relevant evidence and prevents procedural manipulation through purported "admissions" of expert opinions. It is particularly significant in medical negligence claims involving children, where the best interests of the child are paramount under section 28(2) of the Constitution. The case also clarifies the test for appealability of interlocutory orders, emphasizing that the interests of justice may warrant immediate appeal where an order causes irreparable prejudice.