This blog is co-authored by Daniel Kariithi, candidate attorney.

An August 2025 High Court appeal judgment has emphasised a court’s entitlement to make findings on expanded issues in case where parties have conducted themselves in a manner that extends it beyond the confines of the pleadings.

The claimant gave birth at a provincial hospital during which an episiotomy was performed by the midwives on duty. In the three days after the procedure, the claimant attended a clinic in which it was stated that her stitches were unusual and that healing would be slow. On her six-week check-up, the complainant complained of severe pain whilst sitting and during bowel movements. She was diagnosed with an infected episiotomy with an abscess and sinus. The claimant’s condition worsened until a fistulectomy was performed to repair the perineum. Despite post-surgery check-ups revealing nothing untoward, the claimant developed permanent severe faecal incontinence. The claimant brought action against the MEC for health.

The court a quo found that the claimant’s incontinence was caused by the negligence of the MEC’s attendees at hospital. It found that the incontinence was directly caused by the cutting of the sphincter muscle during the fistulectomy. The cutting of the sphincter was a result of the risk to the area before the surgery not being properly assessed or documented, and due to neglect prior to the fistulectomy that allowed for the area to get infected.

On appeal, the primary issue raised by the MEC was that the lower court’s finding assigning majority of the responsibility of the main injury to the pre-fistulectomy negligence differed from that pleaded, which was focused on the negligence occurring at and after the fistulectomy.

The appeal court reaffirmed the general position that parties are bound to their pleaded case on negligence. However, it emphasised that if both parties present and defend the case beyond the pleadings, without causing prejudice to either party, the court may make findings on the expanded issues. In its plea, the MEC denied all negligence in at the episiotomy and prior fistulectomy, putting the claimant to the proof thereof. The appeal court found it inconsistent for the MEC to rely on a failure to comprehend that the negligence extended to pre-fistulectomy conduct. The court took issue with the MEC not raising the issue of the matter being expanded beyond pleadings at the trial stage. The court dismissed the appeal.

The judgment reminds us that whilst parties are generally held to what they plead, the bounds of a case can be extended through the conduct of the parties. The party whom the case is broadened against is expected to object at trial stage if they wish to reject the broadening.

MEC for Health Gauteng Province v M.C.C (A2023/134184) [2025] ZAGPJHC 835