About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2021
>>
[2021] ZANCHC 1
|
|
Erasmus N.O v MEC for Health, NC Province (1342/2014) [2021] ZANCHC 1 (8 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division,
Kimberley)
Case
number:
1342/2014
Date
heard:
26/06/2020
In
the matter of:
Date
delivered:
08/01/2021
SOPHIA
ERASMUS N.O.
and
Plaintiff/Respondent
THE
MEC FOR HEALTH, NC PROVINCE
Defendant/Applicant
Coram:
Van Tonder, AJ
JUDGMENT
VAN TONDER,
AJ
[1]
This is
an application by the defendant in terms of Rule 35 for an order in
the following terms:-
1.1
Compelling
the respondent to furnish a reply to the Applicant’s notice in
terms of Rule 35(3) dated 21 April 2020 within ten
(10) days of the
delivery of the aforementioned order on the respondent’s
attorney of record;
1.2
Authorising
the applicant’s attorneys of record to attend to the delivery
of the order;
1.3
Directing
the respondent to pay the costs of this application; and
1.4
Granting
the applicant further and/or alternative relief as the above
Honourable Court may deem fit.
[2]
For
ease of reference the parties are throughout referred to as in the
action.
[3]
The
plaintiff, Patrick Gert Erasmus, instituted action against the
defendant (as first defendant) and one Dr Kruger as second defendant
during 2014.
[4]
The
plaintiff had recently passed away, and is currently represented by
Sophia Erasmus N.O. in her capacity as executrix of the
estate of the
late Patrick Gert Erasmus, in respect of his remaining claim for past
medical expenses and general damages.
[5]
The
plaintiff’s claim against Dr Kruger emanated from the fact that
on 13 November 2012, Dr Kruger put a rubber band around
the big left
toe of the plaintiff to create a bloodless field when he extracted
the plaintiff’s toenail.
[6]
According
to the plaintiff Dr Kruger failed to remove the rubber band and it
was left on for 3 days, resulting in gangrene to develop
that
necessitated the amputation of the plaintiff’s left big toe.
[7]
On
20 November 2012 Dr Kruger diagnosed that the toe was gangrenous and
immediately referred the plaintiff to Kimberley Hospital,
where he
was admitted (under the care of the defendant).
[8]
After
a series of unfortunate events, the plaintiff’s left leg was
ultimately amputated above the knee on 6 February 2013.
[9]
In
the initial summons (dated 5 August 2014) the plaintiff claimed
damages in an amount of R2 000 000-00 from the defendants jointly
and
severally, the one paying the other to be absolved.
[10]
On the 26
th
of January 2017, the plaintiff and Dr Kruger entered into an
agreement in terms of which the plaintiff accepted an undisclosed
amount of money from Dr Kruger in settlement of his claim against Dr
Kruger, and the case against Dr Kruger was withdrawn.
[11]
The matter
proceeded against the (first) defendant and the matter went to trial
during the first half of 2017. At the commencement
of the trial the
parties agreed to separate the merits from the
quantum
in terms of Rule 33(4) of the Uniform Rules of Court.
[12]
The issue
for determination at the trial on the merits was enunciated by
Mamosebo J, in her judgment delivered on 13 September 2017,
as
follows:
“
[2]
The issue that falls for determination is whether the MEC (Kimberley
Hospital) was negligent, and if so, whether such
negligence can be
causally linked to the damages suffered by Mr Erasmus.”
[13]
In her
judgment Mamosebo J, found in favour of the plaintiff, and made
inter
alia
the following order:
“
[54]
In the result the following order is made:
1. The first
defendant, the MEC: Health, Northern Cape Government, is ordered to
pay all damages that the plaintiff, Mr Patrick
Erasmus, will be able
to prove in due course that was caused to the plaintiff by the
defendant’s failure to render adequate
medical services to the
plaintiff during the period of 20 November 2012 to 06 February 2013
that led to the loss of the left leg
of the plaintiff above the
knee.”
[14]
On the 14
th
of November 2019, the matter was set down for trial in respect of the
quantum
on
the roll of the 26
th
of June 2020.
[15]
On the 3
rd
of June 2020, the defendant proceeded with the application to compel
as referred to above, which was initially set down for the
12
th
of June 2020, but after it became opposed, on the said date it was
postponed to the 26
th
of June 2020 for argument.
[16]
The
defendant’s application to compel was as a result of the
plaintiff’s failure to reply to the defendant’s Rule
35(3) notice that was electronically served on 21 April 2020.
[17]
In the Rule
35(3) notice the defendant requested the correspondence between the
plaintiff’s attorney and Dr Kruger’s
attorneys until such
date as the action was withdrawn and documentation including
correspondence between the plaintiff’s
attorneys regarding the
settlement of the action by Dr Kruger and the settlement agreement
between the plaintiff and Dr Kruger
which recorded the terms of the
settlement of the action with Dr Kruger.
[18]
The
plaintiff did not file an answer to the defendant’s Rule 35(3)
notice, as the plaintiff contend that defendant’s
erstwhile
attorneys had already filed a notice in terms of Rule 35(3) on the
20
th
of August 2018, requesting full particulars of the settlement between
the plaintiff and Dr Kruger including any settlement agreement,
to
which notice the plaintiff had already formally replied to.
[19]
In the
plaintiff’s affidavit in terms of Rule 35(3), which was served
on the 11
th
of September 2018, the plaintiff had stated that the settlement
agreement has a confidentiality clause, and that the document is
privileged, wherefore the plaintiff would only provide a copy thereof
to the defendant, in the event of Dr Kruger relinquishing
the
confidentiality clause. The plaintiff proceeded to attach a
copy of the settlement agreement to the plaintiff’s
answering
affidavit, in respect of the application to compel, with the
references to the amount that was paid as compensation redacted.
[20]
The
defendant alleges that he requires the documents requested as it goes
to the heart of the issue of
quantum
,
especially in circumstances where the plaintiff has passed away, and
the
quantum
of the claim is limited to the past medical expenses and general
damages.
[21]
The
defendant contends that the plaintiff’s failure to provide the
documentation is hampering the defendant in the quantification
of the
plaintiff’s claim, and his preparation for trial.
[22]
The
defendant sets it out in his founding affidavit, as follows:
“
The
documents which the defendant seeks in the Rule 35(3) notice are
relevant to the issues which must be determined between the
parties
and are relevant to the narrowing of the issues between the parties.
The defendant is entitled to be informed, with
sufficient precision,
the extent to which the deceased has been compensated for his damages
in order to be placed in a position
to properly quantify the
deceased’s damages and make an appropriate Rule 34 tender (if
applicable at all).”
[23]
The
plaintiff contends that the defendant is precluded from issuing a
Rule 35(3) notice in April 2020 for the same documents that
it issued
a Rule 35(3) notice for in August 2018 to which notice the plaintiff
had formally applied to under oath, and which was
not followed by an
application in terms of Rule 35(7) as the defendant ought to have
done.
[24]
In his
replying affidavit, the defendant relies on the provisions of Rule
35(11) in terms of which the court has a discretion to
order the
production of the required documents.
[25]
The
plaintiff however argued that the defendant had elected not to
proceed with an application in terms of Rule 35(11), wherefore
the
defendant cannot rely on the powers of the court in terms of Rule
35(11) to support its application in terms of Rule 35(7).
[26]
In the
matter of
Eke v Parsons
2016 (3) SA
37
(CC)
at page 53 the
Constitutional Court has held the following:
“…
Without doubt,
rules governing the court process cannot be disregarded. They serve
an undeniably important purpose. That, however,
does not mean that
courts should be detained by the rules to a point where they are
hamstrung in the performance of the core function
of dispensing
justice. Put differently, rules should not be observed for their own
sake. Where the interests of justice so dictate,
courts may depart
from a strict observance of the rules. That, even where one of the
litigants is insistent that there be adherence
to the rules.
Not surprisingly, courts have often said “[i]t is trite that
the rules exist for the courts, and not
the courts for the rules”.
[40] Under our constitutional
dispensation, the object of court rules is two-fold. The first is to
ensure a fair trial or hearing.
The second is to “secure
the inexpensive and expeditious completion of litigation and . . . to
further the administration
of justice”. I have already
touched on the inherent jurisdiction vested in the superior courts in
South Africa.
In terms of this power, the High Court has always
been able to regulate its own proceedings for a number of reasons,
including
catering for circumstances not adequately covered by the
Uniform Rules, and generally ensuring the efficient administration of
the courts’ judicial functions.”
[27]
In view of
the contradictory views of the plaintiff and the defendant on whether
the contents of the settlement agreement ought
to be provided to the
defendant or not, the court will in any event have to make a ruling
thereon, which ought to be done sooner
rather than later, in order to
finalise the matter expeditiously.
THE
PARTIES’ CONTENTIONS
[28]
The
defendant contends that in view of the fact that the plaintiff
claimed damages from the defendant and Dr Kruger jointly and
severally, the information as to the amount in which Dr Kruger
compensated the plaintiff is relevant and necessary, as this amount
stands to be deducted from the plaintiff’s claim against the
defendant.
[29]
If the
amount in which Dr Kruger compensated the plaintiff exceeded the
amount claimed from the defendant, namely R2 000 000-00,
the
aforesaid compensation would have effectively extinguished the
plaintiff’s claim against the defendant.
[30]
At the
beginning of his argument Mr Reynders indicated that the defendant
was not aware of the fact that the plaintiff had in fact
amended its
particulars of claim during 2018, and that the amended particulars of
claim was served and filed on 23 August 2018.
He indicated that he
was handed a copy of the said amended pages shortly before the
commencement of the matter.
[31]
The amended
particulars of claim had removed any mention of Dr Kruger as second
defendant, and throughout only referred to the claim
as against the
defendant, based on the negligence of the staff at Kimberley Hospital
after the 20
th
of November 2012.
[32]
Adv Reynders
argued that the said amendment did not detract from the fact that the
plaintiff had initially instituted its action
against the defendant
and Dr Kruger jointly and severally, and that at the time that the
settlement agreement was entered into,
the pleadings at the time
still referred to the claim against both defendants jointly and
severally. He furthermore argued
that in view thereof, the
plaintiff and Dr Kruger were fully aware that any amounts paid to the
plaintiff would be relevant in
respect of the plaintiff’s claim
against the defendant.
[33]
Mr Botha on
behalf of the plaintiff however argued that the confidentiality
clause of the agreement had to be respected, as the
failure to do so,
would effectively negate and nullify such agreements entered into
between doctors and patients.
[34]
Especially
in view of the fact that such agreements are entered into to pay
compensation, expressly without any admission of negligence
and
liability, and with the amount in question remaining confidential and
not to be divulged to any other party. If the confidentiality
of the contents of such agreements are not upheld, it will be
detrimental to the whole manner in which professional indemnity
insurers regularly settle such claims against doctors.
[35]
Adv Botha on
behalf of the plaintiff also argued that the plaintiff’s claims
against the defendant and Dr Kruger are two separate
and distinct
claims, which differ in time and substance.
[36]
The claim
against Dr Kruger emanated from his negligent treatment since the
13
th
of November 2012, which resulted in gangrene that had necessitated
the amputation of the plaintiff’s left big toe. His treatment
of the plaintiff then ceased on the 20
th
of November 2012, when he referred the plaintiff to the Kimberley
Hospital.
[37]
The claim
against the defendant emanated from the fact that the employees of
the defendant took over the treatment of the plaintiff
on the 20
th
of November 2012, and which negligent treatment ultimately led to the
plaintiff’s left leg being amputated above the knee
on the 6
th
of February 2013, with the result that the plaintiff was confined to
a wheelchair for the remainder of his life.
[38]
Adv Botha
furthermore argued that the defendant did not rely on the provisions
of the Apportionment of Damages Act, 34 of 1956 or
plead contributory
negligence on the part of Dr Kruger, and did the defendant also not
join Dr Kruger as a joint wrongdoer in terms
of Rule 13, either
before or after the case against Dr Kruger was withdrawn.
[39]
In view
thereof, he argued that there was no basis upon which the defendant
was entitled to simply deduct the amount received from
Dr Kruger, in
respect of the plaintiff’s claim against the defendant, as the
defendant intended.
[40]
He also
argued that the fact that the settlement entered into between the
plaintiff and Dr Kruger was in respect of general damages
prior to 20
November 2012, as well as future medical expenses and legal costs,
made it impossible to set off the amount against
the defendant’s
liability for past medical expenses after 20 November 2012, as well
as general damages.
[41]
In view of
the aforesaid arguments, the plaintiff contended that the amount
received by the plaintiff from Dr Kruger, was therefore
not only
confidential but also irrelevant in respect of the finalisation of
the plaintiff’s claim against the defendant.
[42]
Mr Botha
also argued that, even if the court were to find that the amount
received in settlement was relevant to the proceedings,
the court
should exercise its discretion against the discovery of the document
and the information therein. In this regard
he relied on the
matter of
Venmop 275 (Pty) Ltd &
Another v Cleverlad Projects (Pty) Ltd & Another
.
[1]
THE
RELEVANCE OF THE INFORMATION SOUGHT
[43]
The object
of discovery was described by Tredgold J in the matter of
Durbach
v Fairway Hotel Limited,
as follows:
“
A
party is required to discover every document relating to the matters
in question, and that means relevant to any aspect of the
case.
This obligation to discover is in very wide terms. Even if a
party may lawfully object to producing a document,
he must still
discover it. The whole object of discovery is to ensure that
before trial both parties are made aware of all
the documentary
evidence that is available. By this means the issues are
narrowed and the debate of points which are incontrovertible
is
eliminated.”
[2]
[44]
The broad
meaning ascribed to relevance is circumscribed by the requirements in
both subrules (1) and (3) of Rule 35, namely that
the document must
be one “
relating to
”
(35(1)) or which “
may be
relevant to
” (35(3)) any
matter in question which in turn is determined from the pleadings.
[3]
[45]
Joffe J in
his aforesaid judgment in the matter of
Swissborough
Diamond Mines v Government of the RSA
referred to the test for relevance as follows:
“
The requirement of
relevance, embodied in both subrule 35(1) and 35(3), has been
considered by the courts on various occasions.
The test for
relevance, as laid down by Brett LJ in Compagnie Financieré et
Commerciale du Pacifique v Peruvian Guano Co
(1882) 11 QBD 55
, has
often been accepted and applied. See, for example, the full bench
judgment in Rellams (Pty) Ltd v James Brown & Hamer
Limited
1983
(1) SA 556
(N) at 564A, where it was held that:
"After remarking that it
was desirable to give a wide interpretation to the words 'a document
relating to any matter in question
in the action', Brett LJ stated
the principle as follows:
'It seems to me that every
document relates to the matter in question in the action which, it is
reasonable to suppose, contains
information which may – not
which must – either directly or indirectly enable the party
requiring the affidavit either
to advance his own case or to damage
the case of his adversary. I have put in the words "either
directly or indirectly"
because, as it seems to me, a document
can properly be said to contain information which may enable the
party requiring the affidavit
either to advance his own case or to
damage the case of his adversary, if it is a document which may
fairly lead him to a
train of enquiry which may have either of these
two consequences.'"
[4]
[46]
The learned Judge also referred to the well-established principle
that:
“
It is well-established
law that courts are reluctant to go behind a discovery affidavit,
which is prima facie taken to be conclusive.
In Marais v Lombard
1958 (4) SA
224
at 227G it was held that
"when a party making
discovery has sworn an affidavit as to the irrelevancy of certain
documents, the Court will not reject
that affidavit unless a
probability is shown to exist that the deponent is either mistaken or
false in his assertion …"
This approach was held in
Richardson's Woolwasheries Ltd v Minister of Agriculture
1971 (4) SA
62
(ECD) at 67C–F to be also applicable when possession, as
opposed to the relevance of a document, is in issue. In Continental
Ore v Highveld Steel & Vanadium Limited supra the following was
held at 597E–H:
"It has further been held
in a series of cases before the enactment of the present Rules that
when a party to an action refuses
to make discovery of or to produce
for inspection any documents on the ground that they are not relevant
to the dispute, the Court
is not entitled to go behind the oath of
that party unless reasonably satisfied that the denial of relevancy
is incorrect. Caravan
Cinemas (Pty) Ltd v London Film Productions
1951 (3) SA 671
(W) per Murray AJP at 675–77. The affidavit
denying relevance is generally taken as conclusive, and the Court
will not reject
it unless a probability is shown to exist that the
deponent is either mistaken or false in his assertion. Marais v
Lombard
1958 (4) SA 224
(E) per O'Hagan J at p 227G; Lenz Township Co
(Pty) Ltd v Munnick and others
1959 (4) SA 567
(T) per Williamson J
at 572–573. See also the authorities collected in Federal Wine
and Brandy Co Ltd v Kantor
1958 (4) SA 735
(E) at 745–748, a
judgment of Wynne J, which was described in the Lenz case (at p 573)
as a veritable thesaurus of the decision
on discovery."
[5]
[47]
As stated by Mamosebo J, in her judgment
against the defendant on the merits:
“
[45]
It must be borne in kind that the claim against the MEC is
compensation for damages suffered as a result of the amputation
of
his left leg above the knee and based on contract or alternatively,
on delict. The MEC has not pleaded contributory negligence.”
[48]
As appears
from the aforesaid judgment, in respect of the merits of the
plaintiff’s claim, no mention was made of any possible
contributory negligence on the part of Dr Kruger. This much is
also confirmed by the learned Judge’s formulation of
the
dispute between the parties:
“
[1] … The hearing
proceeded against the MEC for health only since the dispute
between the plaintiff and the second
defendant, Doctor Kruger, was
settled out of court and Mr Erasmus withdrew the case against him.
[2] The issue that
falls for determination is whether the MEC (Kimberley Hospital) was
negligent, and if so, whether such
negligence can be causally linked
to the damages suffered by Mr Erasmus.”
[49]
The learned Judge also stated the following
regarding the case against Dr Kruger:
“
44.1. It is common
cause that Erasmus had pain on the left toe for which he consulted Dr
Kruger. While the case against Dr
Kruger was settled and was
not before me, I take judicial notice of the settlement even though I
was not privy to the contents.”
[50]
The question
then arises, on what basis is the defendant entitled to the details
of the settlement agreement and specifically the
amount (and possible
set-off) thereof, and on what basis does it stand to be taken into
account when establishing the
quantum
of the plaintiff’s claim against the defendant?
[51]
As a result
of the aforesaid, I find the plaintiff’s argument very
persuasive that in view of the fact that the defendant
did not rely
on the provisions of the Apportionment of Damages Act, 34 of 1956, or
pleaded contributory negligence on the part
of Dr Kruger, or joined
Dr Kruger as a joint wrongdoer in terms of Rule 13, the details of
the settlement agreement is not relevant
to the plaintiff’s
claim against the defendant.
[52]
Is the fact
that the plaintiff had initially instituted action for damages
against the defendant and Dr Kruger jointly and severally
sufficient
to establish that the details and amount of the settlement agreement
need to be taken into account in respect of the
quantum
of the claim against the defendant?
[53]
Also having
regard to the fact that the initial particulars of claim were in any
event amended subsequent to the settlement and
withdrawal of the
claim against Dr Kruger, without any objection thereto by the
defendant.
[54]
However,
even if cognisance is taken of the initial particulars of claim,
prior to its amendment, the damages claimed against Dr
Kruger and the
defendant is therein expressly pleaded with regard to two separate
sets of fact.
[55]
The claim
against Dr Kruger stems from the breach of an agreement
alternatively
delict by way of his negligent
treatment of the plaintiff’s septic ingrown toenail which led
to gangrene setting in in his
left toe, that ultimately resulted in
the amputation of his left toe. Dr Kruger’s treatment
ceased on the 20
th
of November 2012, when he referred the plaintiff to Kimberley
Hospital where the plaintiff was then admitted.
[56]
The claim
against the defendant stems from the breach of an agreement
alternatively
delict
by way of the employees of Kimberley Hospital’s negligent
treatment of the plaintiff’s gangrenous left toe, after
his
admission on the 20
th
of November 2012, as well as the failure to timeously amputate his
left toe, that ultimately resulted in the amputation of his
left leg
above the knee on 6 February 2013.
[57]
In the
matter of
Minister of Communications
and Public Works v Renown Food Products
1988 (4) SA 151
(CPD) at 153 D-H the following was stated in respect
of joint wrongdoers:
“
Section 2(1) of
the Apportionment of Damages Act provides as follows:
‘
Where it is
alleged that two or more persons are jointly and severally
liable in delict to a third person (hereinafter referred
to as the
plaintiff) for the same damage, such persons (hereinafter referred to
as joint wrongdoers) may be sued in the same action.’
To fall within that Act
the two defendants must have caused the same damage.
There is no evidence in the present case,
nor was it suggested in
argument, that the two defendants in fact caused the same damage.
…
The normal rule is that,
where separate wrongdoers each cause separate damage to the
plaintiff, at common law each can be
held liable for the damage
which he has caused. This appears from the judgment of Van
Winsen AJA in Mkwanazi v Van
der Merwe and Another
1970 (1) SA 609
(A) at 622B-D. Mr Kirk-Cohen argued that the Makwanazi case was
distinguishable from the present case because of the time
separation
between the two collisions in Makwanazi’s case as opposed to
the time separation of one or two seconds in the
present case.
It is correct that such a distinction does exist but whether the time
separation be ten minutes or a few seconds
the principle, to my mind,
remains the same, namely that where two separate acts of negligence
have caused different damage and
resultant loss to a plaintiff each
defendant will be liable at common law only for such damage and loss
as he himself has caused.
There is nothing in the Apportionment
of Damages Act which detracts from that position.”
[58] In
view of the aforesaid, I am of the view that the defendant had failed
to establish that
the amount of compensation agreed upon between the
plaintiff and Dr Kruger, is relevant to the
quantum
of the
plaintiff’s claim against the defendant.
THE
EFFECT OF THE CONFIDENTIALITY CLAUSE OF THE
AGREEMENT ON THE EXERCISE OF THE
COURT’S
DISCRETION
[59]
Even if I
were wrong in the aforesaid finding, and the information sought was
indeed relevant to the
quantum
of
the plaintiff’s claim against the defendant, then the court
still has a discretion to order or refuse discovery, notwithstanding
that the documents sought are relevant.
[60]
As set out
by Peter AJ, in the matter of
Venmop
:
“
[30]
Mr Segal, who appeared for Venmop, submitted that where the documents
are relevant there is no longer a discretion to order
compliance with
the rule; an order of compliance ought to follow as a matter of
course. The import of such submission is
that where the
documents are not relevant the court retains a discretion to order
compliance with the rule on discovery.
I cannot agree with the
submission on three bases. First, the case authority referred
to above suggests the discretion to
refuse discovery of documents,
notwithstanding that they are relevant. Secondly, rule 35
requires a party to make discovery
of relevant documents. Compliance
with the rule requires the discovery of relevant documents.
Where the documents are not
relevant, ordering a party to make
discovery or produce such documents cannot be said to be ordering
compliance with rule 35 in
circumstances where there has been a
failure to give discovery in terms of the provisions of subrules
35(1) to 35(6). Thirdly,
it is difficult to conceive of a
situation where the discretion would be exercised to order a party to
give discovery of irrelevant
documents. In my view the
discretion in rule 35(7) is predicated on the documents, in respect
of which discovery is sough,
being relevant.”
[6]
[61]
In
exercising this discretion, the argument of Adv Botha that the
consequences of an order being granted to discover the information
regarding the settlement amount, would have a severely detrimental
effect on future settlement agreements, bears further scrutiny.
[62]
Especially
with regard to such agreements being entered into, expressly without
any admission of negligence and liability, and with
the amount in
question remaining confidential and not to be divulged to any other
party. As well as what the effect of such
an order would be on
the whole manner in which professional indemnity insurers regularly
settle professional negligence claims
against doctors.
[63]
In the
matter of
Spies v Vorster
,
Bale C.J. dealt with an appeal against an order made against the
proprietor, printer and publisher of a tri-weekly newspaper,
who was
ordered to disclose the name and address of the writer of an
anonymous letter, which had appeared in the newspaper, and
which was
allegedly defamatory.
[7]
[64]
He remarked
as follows:
“
There
are, apart from authority, objections in principle against such a
disclosure. Newspapers have long been the medium for the
ventilation
of public or private grievances by letter or otherwise, sometimes
anonymously and sometimes bearing the author's name.
The proprietor,
printer, and publisher of the newspaper are all liable for any
defamatory matter so given to the public. The responsibility
for any
injurious statements which have been sown broadcast is rightly
theirs. They are not entitled to shelter themselves behind
anonymity,
nor by modern practice are they freed from liability upon disclosure,
though possibly the amount of damages might be
reduced. If the
writer's identity be known he too can be made liable, but it would,
we think, strike at the root of the modern
idea of journalistic
ethics, and in our opinion contrary to law and just principles, if
the offending proprietor could be made
to disclose the name of the
contributor who has confided in his discretion and so shift
responsibility upon the latter, who might
be an impecunious person.
The editor is the recognised medium between the contributor and the
public, and he is supposed to know
what may and what may not safely
be given to the world, and the proprietor of the paper takes
responsibility for what is published.
If he does his duty, he will
either suppress altogether or remove the sting from any defamatory
matter, and no tangible harm is
done. It is right that the burden
should be cast upon him rather than upon the unknown contributor.
If
an editor were bound to disclose the name of his correspondent there
would be an end of confidential relationship between correspondent
and newspaper which has existed for generations, to the advantage of
the public, and many an abuse would go unremedied and many
a
grievance unredressed because those who knew, for reasons good or
bad, were unwilling or unable to allow their names to be published.
However much it may be abused, as it often is, to air personal
grievances and to injure, there can be no doubt that many anonymous
communications have been the means of effecting valuable and
wide-reaching reforms.
A
decision in favour of the applicant if applied in other cases might
lead to very serious consequences and do much to restrain
freedom of
communication and breeds suspicion and distrust. Its application to
other causes of action might destroy that freedom
of communication
which is so essential to comfort and well-being.
It might give occasion for applications grounded merely on
well-founded suspicions.
”
[8]
(Own
emphasis added)
[65]
When a claim
of confidentiality is made over information that is sought to be
discovered, considerations of fairness arise, as formulated
by Deputy
Chief Justice Moseneke in as follows:
“
[27] Even before the
advent of the Constitution, courts often, and correctly in my view,
recognised that when there is a claim of
confidentiality over
information that is sought to be discovered or disclosed other
considerations of fairness arise. These are
well recognised by Schutz
AJ in Crown Cork & Seal Co Inc and Another v Rheem South Africa
(Pty) Ltd and Others:
1980 (3) SA 1093
(W)
“
[A
conflict arises] between the need to protect a man’s property
from misuse by others, in this case the property being confidential
information, and the need to ensure that a litigant is entitled to
present his case without unfair halters. And, although the approach
of a Court will ordinarily be that there is a full right of
inspection and copying, I am of the view that our Courts have a
discretion
to impose appropriate limits when satisfied that there is
a real danger that if this is not done an unlawful appropriation of
property
will be made possible merely because there is litigation in
progress and because the litigants are entitled to see documents to
which they would not otherwise have lawful access. But it is to be
stressed that care must be taken not to place undue or unnecessary
limits on a litigant’s right to a fair trial, of which the
discovery procedures often form an important part.”
[9]
[66]
The conflict
between the defendant’s right to discovery, must therefore be
weighed against the plaintiff’s (and Dr Kruger’s)
right
to confidentiality, with fairness to the parties being the overriding
factor.
[67]
The
consideration of the two opposing rights have been phrased in the
following manner by Patel J:
“
In
event of a challenge a court will only order production of documents
for inspection if this is necessary either for disposing
of the
matter or for saving costs. The burden of proof must be on the
party making the challenge. The court has a discretion
to order
production, which discretion must be exercised judicially. A
court will in each case have to strike a balance between
the
importance of ordering production, from the point of view of doing
justice or saving costs in the proceedings in question,
and
respecting confidentiality. A distinction must be drawn between
confidentiality as between the immediate parties to the
litigation
and confidentiality involving third parties. In my view the
discretion to refuse production of documents should
most commonly be
applied where disclosure would breach confidentiality involving a
third party. See Science Research Council
v Nassé [1980]
AC 1028.
”
[10]
[68]
In view of
the effect that an order compelling the plaintiff to provide the
defendant with the information sought, would have on
future
settlement agreements being entered into, (specifically entered into
expressly without any admission of negligence and liability,
and with
the amount in question remaining confidential and not to be divulged
to any other party) I would exercise my discretion
against the
defendant.
[69]
In the
circumstances of the present matter, it is difficult to fathom any
unreasonable prejudice that the defendant would suffer
if the order
compelling discovery is refused, whereas immense prejudice would be
suffered by Dr Kruger, and to a lesser extent
the plaintiff, if an
order compelling discovery is granted, which order would effectively
destroy the confidentiality of the settlement
agreement and negate
the whole purpose and object of entering into such an agreement.
COSTS
[70]
Although the
plaintiff asked for a punitive cost order against the defendant by
way of attorney and client costs, I am not persuaded
that a punitive
cost order is warranted herein.
[71]
There is
nothing to detract from the trite principle that the successful party
is normally entitled to his costs, wherefore the
costs will follow
the result herein.
CONCLUSION
[72]
Wherefore I make an order in the
following terms:-
1.
The
defendant’s application is dismissed.
2.
The
costs of the application are to be paid by the defendant.
AG VAN TONDER
ACTING JUDGE
On
behalf of the Applicant/Defendant: Adv. S.J.Reynders SC (oio Robert
Charles Attorneys) On behalf of Respondent/Plaintiff:
Adv. C.H. Botha (oio Elliott, Maris, Wilmans & Hay)
[1]
Venmop 275 (Pty) Ltd & Another v Cleverlad Projects (Pty) Ltd &
Another
2016 (1) SA 78
(GJ) at p 93
[2]
Durbach v Fairway Hotel Limited
1949 (3) SA 1081
(SR) at 1083
[3]
Swissborough Diamond Mines v Government of the RSA
1999 (2) SA 279
(T) at 316-317
[4]
Swissborough Diamond Mines v Government of the RSA supra at 316 E-G
[5]
Swissborough Diamond Mines v Government of the RSA supra at 317E-I
[6]
Venmop 275 (Pty) Ltd & Another v Cleverlad Projects (Pty) Ltd &
Another
2016 (1) SA 78
(GJ) at 93E-H
[7]
Spies v Vorster (1910) 31 NPD 205
[8]
Spies v Vorster
(1910) 31 NPD 205
at 217-218
[9]
Independent Newspapers (Pty) Ltd v Minister for Intelligence
Services: In re Masethla v President of the RSA
& Another
2008 (5) SA
31
(CC) at 42D-G also reported as
[2008] ZACC 6
;
2008 (8) BCLR 771
(CC) at par 27
[10]
Santam v Segal
2010 (2) SA 160
(NPD) at 164J – 165C