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[2015] ZAGPPHC 62
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F.B.K v Minister of Defence (9735/2011) [2015] ZAGPPHC 62 (6 February 2015)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG,
PRETORIA)
CASE NO:
9735/2011
DATE: 6 February
2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
F[...] B[...]
K[...]
.......................................................................................................
PLAINTIFF
AND
THE MINISTER OF
DEFENCE
.....................................................................
DEFENDANT
JUDGMENT
VAN NIEKERK J
Introduction
[1] The plaintiff is
a member of the South African National Defence Force (SANDF). It is
not disputed that during August 2004, he
was diagnosed as HIV
positive, after tests conducted by medical personnel in the employ of
the SANDF. The plaintiff voluntarily
left the SANDF on 31 March 2006
and was paid a severance package. Some two years later, in May 2008,
the plaintiff applied for
appointment to the Reserve Force. During
the course of medical screening conducted for the purposes of that
application, a rapid
(pinprick) assay returned a result of HIV
negative.
[2] The plaintiff
sought redress in terms of the SANDF’s internal procedures for
what he contended to be an incorrect diagnosis
of his HIV status in
2004. He claimed that he would not have left the SANDF in 2006 had it
not been for the incorrect diagnosis,
and that he was entitled in
those circumstances to reinstatement with retrospective effect.
During the course of the internal procedures,
the Surgeon General
concluded ultimately that the ‘only explanation’ for the
different diagnoses was a confusion between
two members of the SANDF
with the same names and dates of birth but different force numbers,
the one being 94870268RR (the plaintiff
acknowledges that this is his
force number), the other being 94850054RR (the plaintiff asserts that
this is the force number of
an unknown third party). After
intervention at ministerial level, and on the basis of what the SANDF
then acknowledged to be a
mistaken diagnosis, the plaintiff was
re-appointed to the SANDF in December 2009 on a twelve month fixed
term contract. He was
thereafter reinstated in the permanent force,
with effect from January 2011. The plaintiff has since attained the
rank of major,
and expects to remain in the permanent force until his
retirement in 2031.
[3] The plaintiff
maintained that the redress afforded him (his reappointment to the
permanent force) was inadequate and insisted
on reinstatement with
effect from the date of his withdrawal from the SANDF on 31 March
2006. The SANDF refused to acquiesce in
this demand, on the basis
that the plaintiff had been under no compulsion to leave the SANDF
and that his decision to do had been
entirely voluntary. That refusal
led to the institution of the present proceedings.
The nature of the
plaintiffs claim and the relief sought
[4] In these
proceedings, the plaintiff contends that on account of the negligence
of the SANDF’s medical personnel in misdiagnosing
him as HIV
positive in August 2004, he is entitled to reinstatement in the
SANDF, with retrospective effect and with full benefits,
from 31
March 2006. He seeks a declaratory order to this effect. The
plaintiff also claims general damages and as an alternative
to the
claim for reinstatement, he claims special damages for loss of
income.
[5] The parties had
originally agreed that the trial would proceed in respect of both the
merits and quantum. When the matter was
called, the court was advised
that one of the expert witnesses scheduled to give evidence had
suffered a stroke and was unable
to testify. It was agreed that in
these circumstances the matter would proceed only in respect of the
merits, and a separation
order was accordingly granted.
[6] Although the
particulars of claim are not drafted in the most elegant terms, the
plaintiffs case is that the medical personnel
employed at 2 Military
Hospital in Cape Town were negligent when conducting the test that
resulted in the incorrect health status
by failing to ascertain the
correct name, serial number and\or identity number of the patient
before releasing the result of the
blood test to the plaintiff;
alternatively, by confusing the blood samples of different patients
resulting in incorrect results
being released to the plaintiff. The
plaintiff avers that on account of the incorrect diagnosis by the
SANDF’s employees
he ‘followed a process of exit’
from the SANDF, a process referred to as the ‘mobility exit
mechanism or MEM,
finalised on 31 March 2006. The plaintiff avers
further that he suffered shame, humiliation, severe feelings of guilt
and emotional
instability due to the misdiagnosis and that for a
period of two years following his leaving the SANDF, he received no
salary,
pension medical aid or housing subsidy.
[7] The particulars
of claim further record that after the health assessment conducted on
23 May 2008 and the result of the rapid
test to the effect that he
was HIV negative, he requested reinstatement into the SANDF. The
plaintiff avers that the failure to
reinstate him as a permanent
member of the SANDF is unlawful, alternatively, that the relevant
members of the SANDF, acting in
the course and scope of their
employment, acted negligently in that they failed to consider his
case for reinstatement. The plaintiff
avers further that the
continuous failure to reinstate him caused him to suffer emotional
distress and to suffer a loss of income
for the period April 2006 to
15 December 2009. The plaintiff submits that it is ‘fair and
just’ that he be reinstated
into the SANDF in the position he
held in March 2006, with full benefits and pay.
[8] The SANDF had
initially admitted that that the diagnosis of HIV positive following
the tests conducted by its employees in August
2004 was incorrect;
the only issue placed in dispute was that of negligence. In July
2013, the SANDF filed a notice to amend its
plea. In terms of the
amendment, the SANDF averred that the plaintiff tested HIV positive
on 23 November 2004 on a rapid test and
a laboratory test, and that
the same diagnosis was made in January 2005 when a CD4 count of 615
and a viral load of 15 500 were
recorded. The SANDF averred further
that on 23 May 2008, a rapid test was done on the plaintiff, and that
he did not undergo a
CD4 count or a viral load count test. The effect
of the amendment was to withdraw an admission by the SANDF that the
diagnosis
reached in August 2004 was incorrect, to assert its
correctness and deny that any of its employees had made any mistake
in the
diagnosis. The plaintiff did not object to the amendment,
except for that part of it which referred to the HIV status of the
plaintiffs
wife. That is not an issue which is relevant to the
present proceedings.
[9] During argument,
counsel for the plaintiff submitted that in these circumstances,
there is an onus on the SANDF to prove the
positive averments made in
its amended plea. As I understood the submission, it was for the
SANDF to establish that its employees
had not been negligent in
reaching the diagnosis they did in August 2004. There is no merit in
this submission. Given the limited
objection to the proposed
amendment, and in the absence of any objection to the substance of
the notice of amendment, the plaintiff
is deemed to have consented at
least to that part of the amendment to which he did not object. There
is no reason therefore why
any amendment to the plea should vary the
ordinarily applicable rule, i.e. that to succeed in his claim, the
onus rests throughout
on the plaintiff to prove, on a preponderance
of probabilities, that the employees of the SANDF were negligent in
one or more of
the respects alleged in the particulars of claim.
[10]
It is appropriate at this juncture to deal also with the question of
remedy. As I have indicated, the primary relief sought
by the
applicant is retrospective reinstatement into the SANDF. The nature
of these proceedings is an Aquilian action, in which
the plaintiff
asserts that the SANDF personnel acted unlawfully and negligently by
incorrectly diagnosing him as HIV positive.
The remedy available to a
plaintiff in these circumstances is damages. Although counsel for the
SANDF acknowledged that this matter
ought more properly to have been
raised by way of a special plea, she submitted that the facts
disclose that the plaintiff’s
election to seek a discharge from
the SANDF by way of the MEM process was an entirely voluntary act on
his part, and that it is
not open to him in these circumstances to
claim reinstatement. The authority referred to,
Kynoch
Fertilizers Ltd v Webster
[1998]
1 BLLR 27
(LAC), in which the Labour Appeal Court found that a
resignation once accepted amounts to a settlement that deprived an
employee
of the right to seek reinstatement or compensation, is in my
view misplaced. That authority relates to the application of the
Labour Relations Act, 66 of 1995
, and in particular, the effect of an
act of resignation on rights and remedies which might otherwise have
been available to an
employee under the Act for an unfair dismissal.
The present matter concerns a delictual claim. Whether or not the
plaintiff left
the employ of the SANDF on account of the diagnosis
which he contends to be incorrect and whether he would have remained
in the
SANDF but for the diagnosis is an issue that more properly
goes to causation. Given the nature of the action instituted by the
plaintiff, it is not open to him to contend, as he does, that if the
SANDF is found to be negligent, he is entitled to an order
of
reinstatement. It is not competent for this court, except perhaps in
an application for interim interdictory relief, to entertain
any
claim for what amounts to specific performance on account of any
negligence on the part of the SANDF or its employees. Orders
of
reinstatement may be the primary remedy in respect of other causes of
action (for example, clams of unfair dismissal or unfair
labour
practice under the
Labour Relations Act, or
a contractual claim) but
having elected to institute an Aquilian action, his claim for the
plaintiff is limited to his alternative
claim for special damages.
[11] In short, the
legal issue at stake can be reduced to the following: Whether the
medical personnel employed by the SANDF at
2 Military Hospital were
negligent when diagnosing the plaintiff as HIV positive, either by
not ascertaining the correct name,
serial number, and identity number
of the patient before releasing the results to the plaintiff;
alternatively, by confusing blood
samples of different patients
resulting in the incorrect results being released to the plaintiff.
Given the nature of the pleadings
and the evidence, the key factual
issue is whether the diagnosis was wrong.
The evidence
[12] I do not intend
to repeat the evidence of all of the witnesses. The plaintiff
testified, after which he closed his case. For
the SANDF, evidence
was given by a Lt Col Letadi (the plaintiff’s career officer at
the relevant time), Dr Buckton (a medical
doctor and employee of the
SANDF), Col van der Merwe (a human resources officer), Major EC
Engelbrecht (a medical technologist
in the employ of the SANDF), Dr
MJ Engelbrecht and Dr Cook (both medical doctors employed by the
SANDF).
[13] The plaintiff
testified that prior to his integration into the SANDF in 2002, he
was an APLA operative. He is currently based
in Makhado, with the
rank of major, deployed as an operations officer with a
responsibility for protection services, and in particular,
base
security. The plaintiff was based in Langebaan in 2004. It is common
cause that in August 2004, a blood test was conducted
at the base
clinic. The plaintiff was subsequently advised during an interview
with a doctor in the employ of the SANDF that the
results indicated
that he was HIV positive. When the doctor telephoned to obtain the
results, he used the plaintiffs force number
94870268.
[14] The plaintiff
testified that the diagnosis affected him profoundly and that he
feared that he would die in circumstances where
he had lived an
unfulfilled life. He advised his career officer, a Major Lebatsi, of
his HIV status and he decided ultimately to
leave the SANDF by way of
the MEM. At that stage, the plaintiff stated that he had accepted
that the diagnosis was a threat to
his life and that the certainty of
the payment of a lump sum would enable him to build a home and thus
provide some security for
his dependents.
[15] The plaintiff
stated that he left the SANDF on 31 March 2006. He returned to his
home in East London and lived with his family
in a flat on his
mother’s property. He disclosed his HIV status to his youngest
sister who in turn informed the plaintiffs
mother. The plaintiff
stated that his mother reacted in a manner that was wholly unexpected
- she ultimately secured an order evicting
the plaintiff and his
family from the premises. The plaintiff later received a lump sum of
R 217,000 and utilised the money to
build a house in the Limpopo
province
[16] The plaintiff
applied to join the reserve force during April 2008. He completed the
necessary application forms and later underwent
a health assessment.
The assessment included a test for HIV status form of a pinprick
test; the result was that the plaintiff was
HIV-negative. It was on
this basis that the plaintiff lodged a grievance, contending that the
diagnosis conveyed to him in August
2004 was incorrect and that but
for the incorrect diagnosis, he would not have left the SANDF. As I
have indicated, it is not disputed
that the SANDF, under the
impression that it was at fault on account of a possible confusion of
blood samples in August 2004, reappointed
the plaintiff ultimately to
the permanent force.
[17] The SANDF’s
case emerged during cross-examination. In short, the SANDF contends
that although it had initially adopted
the view that there was
possible confusion of blood samples when an HIV test was conducted on
the plaintiff in August 2004 thus
resulting in an incorrect
diagnosis, subsequent investigation had revealed that the person
identified as having the same names
and date of birth as the
plaintiff but with a different force number, is in fact the
plaintiff. In other words, there was no other
person who shared a
name and date of birth with the plaintiff - both force numbers in
question had been allocated to him, and there
was therefore no
confusion of the blood samples taken in August 2004. Further, the HIV
tests conducted on the plaintiff during
2004 and later in 2005
unequivocally establish that the plaintiff is HIV positive. The test
conducted in 2008 was based only on
a pinprick and the result was a
false negative. There was therefore no confusion and no incorrect
diagnosis, and no negligence
on the part of any of the SANDF’s
employees.
[18] The plaintiff
denied all of these propositions. He denied that he was ever in the
Army, and asserted that he had been integrated
into the SANDF only in
2002. The plaintiff denied that documents put to him which indicated
that he had been on strength in the
SANDF as early as 16 February
1995, when a F[...] B[...] K[...] with ID number [...] and force
number 94850054 had been appointed
as a scout in the SA Intelligence
Corps. The plaintiff proffered the theory that during the
repatriation process in 1994, his personal
particulars were used by
some unknown person to gain appointment in the SANDF. The plaintiff
testified that between 1996 when he
applied for and was granted
demobilization and 2002, he was employed in East London until his
reintegration in the SANDF in 2002.
The plaintiff acknowledged that
he had given his consent to participate in the Phidisa programme
after the diagnosis in August
2004, and that he had participated in
the programme. He had not been tested for his HIV status since the
pinprick test conducted
during the health assessment in 2008.
[19] Lt Col Letabi
testified that prior to the plaintiffs decision to apply for a
discharge from the SANDF in terms of the MEM policy,
he had conducted
a number of discussions with the plaintiff, both formal and informal,
all aimed at persuading the plaintiff not
to leave the force. The
plaintiff had never conveyed to him that he was HIV positive, and
stated that his primary reasons for wishing
to leave the force
concerned his family and finances, although in the period June to
December 2004, the plaintiff did mention health
concerns.
[20] Col van der
Merwe testified that he knew the plaintiff personally and that he had
been engaged in discussions with him regarding
his return to the
SANDF during 2007 and 2008. Van der Merwe testified that he had
visited the SANDF archives to conduct an investigation
into the files
of members with force numbers 94870268RR and 94850054RR. The SANDF
was aware at that stage that the names and surnames
of the members
were identical; what he sought to investigate particularly was the
difference in the force numbers. File 94850054
disclosed that the
member F[...] B[...] K[...] with ID number [...] had enrolled as a
scout with the SA Intelligence corps in February
1996. Also on file
was a copy of a temporary ID which recorded the identity number on
the file as being that of a F[...] B[...]
K[...] born on 24 March
1971. He also examined the file in respect of force number 94870268.
This file related to a F[....] B[...]
K[...], born on [...] 1971,
with identity number issued in 1995 being [...]. When he examined the
files further, he found that
the banking particulars given by the
persons concerned (in other words, the bank account number given by
the member for purposes
of payment of his remuneration) was the same,
as was the given address of the next of kin (in this instance, the
name and address
of the plaintiffs mother). The signatures of the
force member on the documentation contained in the respective files
also seemed
to him to be the same. Col van der Merwe explained the
difference in force numbers by reference to the temporary and
permanent
identity documents respectively - one number was referenced
to a temporary identity document issued to the plaintiff, the other
to a permanent identity document issued to the plaintiff on a later
date. In his view, the plaintiff had obtained a temporary identity
document and was allocated force number 9[...], and using a permanent
identity document was later allocated a different force number,
[...], the number presently used by the plaintiff. Col van der Merwe
concluded that in the light of his investigation and the
documentation available to him, the ‘two K[...]’s’
initially thought to have existed were one and the same person.
[21]
Dr Sally Buckton, a medical practitioner in the employ of the SANDF,
gave evidence
inter
alia
concerning
the findings of a medical examination of the plaintiff conducted on 3
July 2008. These are recorded on a form referred
to as a ‘DD50’.
The medical category assigned to the plaintiff is recorded as G1K1,
meaning that the plaintiff was
in good health. Dr Buckton testified
that an element of the medical screening comprised a HIV test if
positive, would result in
the drawing of blood and the forwarding of
the specimen to laboratory for analysis and confirmation. In the
plaintiff’s case,
the rapid HIV test returned a result of
negative. In Dr Buckton’s view, a rapid test was capable of
resulting in a false
negative; there was about a 5% incidence of
false negatives. She testified further that it was not economically
viable to take
blood samples at each screening. The result of the
screening was in any event only valid for 12 months.
[22] Dr Terry
Marshall, a virologist employed by Ampath Laboratories, was not
personally involved in any of the test conducted either
in 2004 or
2008 but gave evidence as to her report, prepared for the purposes of
Rule 36.
Dr Marshall testified that the results of the test conducted
on 23 August 2004, both the rapid finger prick HIV assay and the
confirmatory
testing using laboratory-based assays, conformed with
internationally accepted guidelines. The results of the laboratory
tests
(for HIV ELISA, HIV Western Blot, and baseline HIV viral load
and CD4 testing) served as more than sufficient confirmation of HIV
infection in the plaintiff. Dr Marshall noted further that further
monitoring as part of the Phidisa project incorporated additional
viral load and CD4 assays performed through the same laboratory
system on 5 July 2005. The results of that test, in her opinion
further supported the HIV infected status of the plaintiff. In regard
to the test conducted on 23 May 2008, a testing for HIV using
a rapid
essay, Dr Marshall expressed the opinion that in general, a
biological testing system is 100% accurate and that falsely
positive
and negative results will occur from time to time even in the best
quality assured environments. In her view, it was far
more likely
that the test result obtained in 2008 was a falsely negative result.
[23] Major
Engelbrecht gave evidence on the protocol for the testing of blood
specimens. Referring to a preliminary report dated
23 August 2004,
the witness testified that the blood test concerned was probably
conducted on 23 August 2004. The procedure is
one that contemplates
confirmation of the force number on the relevant form with the
specimen, the completion of documentation
and the capturing of the
data on the IT system and the forwarding of the specimen to the
laboratory for analysis. In the event
that a specimen is found to be
reactive, it is forwarded to the Groote Schuur hospital for repeat
testing. Major Engelbrecht also
testified as to the laboratory report
that 27 August 2004, prepared by the National health laboratory
service at Groote Schuur,
which confirmed a reactive diagnosis on the
ELISA method.
[24] Dr MJ
Engelbrecht, a medical practitioner in the employ of the SANDF gave
evidence concerning the Phidisa project, a project
initiated by the
SANDF to both conduct research into members affected by
sexually-transmitted diseases and HIV\AIDS and to offer
medical
assistance and counselling to those who test positive. The witness
was referred to and confirmed an averment in an affidavit
deposed to
by the plaintiff on 25 August 2010, in support of an application for
the condonation of his non-compliance with
section 3
(2) of the
Institution of Legal Proceedings against Certain Organs of the State
Act, 40 of 200 under observation by the witness
In the affidavit, the
plaintiff had stated that he participated in the Phidisa project. The
objective of the programme was to avoid
the stigma attaching to HIV
and to provide patients diagnosed HIV positive with hope,
opportunities and medical assistance. Dr
Engelbrecht described the
process of initiation into the program, by reference to the relevant
documentation. In the plaintiffs
case, the relevant source document
disclosed that the plaintiff had been provided with information
concerning the programme and
had given his consent to participation
in the program. The note records that the plaintiff was ‘very
eager to sign'. He is
recorded as having stated that he had tested
positive for HIV, and that he was concerned about his CD4 count. The
source document
further recorded the plaintiffs personal particulars,
including his name, number and rank and date of birth. A rapid HIV
test conducted
as part of the screening visit indicated that the
plaintiff was HIV positive. A follow-up visit was scheduled for 30
November 2004.
The witness testified further on the pathology reports
received consequent on the screening visit. These included the
results of
a CD4 cell count, an ELISA test and a western blot test,
all of which returned a result of HIV positive. Research protocol in
what
was a blind test. A ‘research’ file was compiled
reflecting only a reference number with no names or other personal
details and a second ‘source’ folder, in which the name
of the patient and other personal details were apparent. A
register
was kept in which a unique number assigned to the patient enabled the
two files to be linked.
[25] Dr Cook
testified that she was employed in the SANDF during 2004 and that she
had been engaged in the Phidisa program since
2004. The witness
explained the research protocol and the system of two folders, one a
research file the other source file, is
the basis on which
information was collected and collated. The witness gave evidence
concerning the protocol used during the screening
visit in November
2004. The witness had personally examined the plaintiff on 28 June
2005. The consultation was part of the Phidisa
program follow-up for
HIV-positive patients. She recorded the plaintiff’s history and
his CD4 count of 612 and viral load
of 28 000, results obtained from
the laboratory results dated 23 November 2004. During the course of a
discussion with him, and
by reference to contemporaneous notes, she
testified that the patient was eager to join the programme on account
of concern regarding
a high CD4 count, and that he disclosed that he
had been HIV positive since 2002. She had personally drawn a blood
sample a week
before the consultation. She saw the plaintiff on 5
July 2005 and recorded the results of the blood test being a CD4
count of 615
and a viral load of 15 500, all indicative of a
HIV-positive status. The witness was referred to the pathology
reports, none of
which contain the plaintiff’s name. The
reports simply referred to subject initials as ‘FBK’ (it
is common cause
of these other plaintiffs initials), a subject number
03-001-245 and a date of birth, in this instance, ‘24-Mar-1971’,
which, it is common cause, is the plaintiffs date of birth. Dr. Cook
explained that personal particulars of patients was not made
available to medical personnel not participants in the program, who
had access to both the source file (which disclosed or personal
details) and the research file, which did not. A register was kept in
terms of which it is possible to correlate the reference
numbers and
the personal profile of the patients concerned. In this instance, Dr.
Cook testified that she had seen the plaintiff
(although she could
not recall him personally and that all of the signifiers on pathology
reports were consistent with the personal
particulars of the
plaintiff, at least insofar as his initials and date of birth are
concerned. Dr. Cook denied that there was
any possibility of a mix up
of blood samples given that the protocols that were observed.
Analysis
[26] The evidence
obviously discloses a number of material disputes of fact. For
present purposes, that which is most material is
the correctness or
otherwise of the diagnosis of HIV positive made in respect of the
plaintiff during August 2004. It is incumbent
on the plaintiff to
prove, on a balance of probabilities, that the employees of the SANDF
were negligent in misdiagnosing his HIV
status. In other words, as I
have indicated above, it is incumbent on him to establish that the
results of the test were in fact
incorrect. This enquiry has two
elements -whether the medical personnel concerned failed to ensure
the correct name, serial number,
and identity number of the patient
were recorded before releasing the results to the plaintiff;
alternatively whether the blood
samples of different patients were
confused resulting in the incorrect results being released to the
plaintiff.
[27] It is not
disputed that the plaintiff was diagnosed to be HIV positive and that
the status was confirmed by a laboratory at
2 Military Hospital in
Cape Town on 30 August 2004 and that the plaintiff was a participant
in the Phidisa project. The plaintiff’s
case, in essence, is
that the SANDF could not establish a chain of evidence in respect of
the blood tests conducted during August
2004, November 2004, January
2005 and June 2005. The documents concerned were not linked to the
plaintiff; they simply disclose
the results of a patient. In
particular, there was no link drawn between the plaintiff and the
patient with file number 03-001-245,
but for his date of birth being
1971 and his initials being ‘FBK’. In the light of the
confusion with the other member
of the SANDF with the initials ‘FDK’
and the same date of birth but with a different force number, the
simple reference
to initials and the year of birth was insufficient
to link the plaintiff with the results of the various tests. This
submission
was made in the context of an allegation of tampering with
evidence - the plaintiff alleges that the subject number or unique
number
on certain of the pathology reports had been blacked out and a
sticker generated during 2011, seven years after the information
was
generated, placed at the bottom of the page. The plaintiff submits
that in the circumstances, the court must draw negative
inference
from the fact that the documents originally provided by way of
discovery had been tampered with in this way, while the
original
documents, disclose shortly before the commencement of the trial
disclosed no such ‘tampering’.
[28] In my view,
there is nothing sinister or significant in relation to the state of
the documentation. The documents originally
provided during the
course of discovery had the subject number of the patient concerned
deleted and stickers recording the plaintiffs
personal details have
been affixed to the bottom of the page concerned. The evidence was
that the documents had been prepared for
the purposes of this
litigation and whoever prepare the documentation thought that the
unique subject number ought to be deleted
and the plaintiff’s
full personal particulars provided. Be that as it may, and as
inadequate as that explanation might be,
the fact remains that the
original documentation was furnished to the plaintiff prior to the
commencement of trial and that document
clearly indicates the subject
number allocated to the patient concerned, and did not in any detail
disclose the plaintiffs personal
particulars.
[29] The question
that arises is whether a nexus can be drawn between the various tests
and reports conducted between November 2004
and July 2005, and the
plaintiff. It is appropriate perhaps at this point to assess the
thesis advanced initially by the SANDF
and now by the plaintiff, i.e.
that there were two different persons, with the initials and names FB
K[...].
[30] This contention
was refuted by the evidence of Col Van der Merwe. His evidence, which
was not seriously called into question
during cross examination,
explained the circumstances in which the plaintiff came to be issued
with two (different) force numbers,
each linked to a different
identity document held at various times by the plaintiff. The
plaintiff did not deny that he had held
a temporary identity document
and later a permanent identity document, or that these documents
appeared in the files examined by
Col van der Merwe. The evidence
that confirms a nexus between the files (and therefore the force
numbers in issue) in two material
respects. The first was a common
bank account number, which the plaintiff conceded was his bank
account number. Only he could have
provided this information to the
SANDF, which he must have done when he was enrolled in the
Intelligence Corps in 1995 and later
when he was integrated into the
SANDF, in the Air force. The second is the address of a next of kin,
where in each case, the nominee
was the plaintiffs mother and the
address given that of her home in East London. Only the plaintiff
could have provided this information.
In these circumstances, the
probabilities are overwhelming that the FB K[...]'s with force
numbers 94870268RR and 94850054RR, both
born on 24 March 1971 is one
and the same person - the plaintiff.
[31] The diagnosis
of Dr Cook, in particular, rules out any possibility of a
misdiagnosis of the plaintiffs HIV status, either on
the basis of a
mistaken identity or otherwise. First, even if there were another FB
K[...] with the same date of birth as the plaintiff
but with a
different force number, I fail to appreciate how it can be contended
on the available evidence that the plaintiffs blood
sample came to be
mixed up with of that other person with the same name. Patients
participating in the Phidisa programme were allocated
a unique
subject number (in the plaintiffs case, it is not disputed that this
number is 03-001-245) and the testing protocols were
conducted on the
basis on this number. There is no mention of force number, let alone
full names and ranks, on any of the documents
submitted to the
laboratory, or any of the reports returned by the laboratory to
Phidisa. The reports generated by the laboratory
in November 2004 and
again in 2005, all of which indicated a diagnosis of HIV positive,
could only relate to the plaintiff. The
high CD 4 count and viral
load disclosed during Dr Cook’s examination of the plaintiff in
2005 confirmed the diagnosis made
in August 2004. Dr Cook was
familiar with both the research file and the source file, and
confirmed the documents therein and the
personal details of the
plaintiff. Major Engelbrecht’s evidence confirms the
preliminary HIV status of the plaintiff as at
23 August 2004, and his
personal details on the preliminary report prepared when the
plaintiff reported for testing on that day.
Dr Engelbrecht’s
evidence further excludes the possibility of any mistaken identity or
an incorrect diagnosis.
[32] In support of
his contention that the diagnosis of his HIV condition made in 2004
was incorrect, the plaintiff proffers no
more than the result of the
rapid test conducted in 2008. In the face of the compelling evidence
as to the plaintiffs, and the
fact that the rapid test conducted in
2008 was in no way a definitive or even confirmed diagnosis, and
given the results of the
tests conducted by SANDF medical personnel
during 2004 and 2005 and the links to the plaintiff, the
probabilities are overwhelming
that the diagnosis of the plaintiffs
HIV status in August 2004 was correct, and that none of the medical
personnel concerned were
in any way negligent.
[33] In my view, the
plaintiff has failed, on the balance of probabilities, to discharge
the onus that the SANDF or any of its employees
were negligent either
by failing to ascertain the correct name, serial number and/or
identity number of the patient before releasing
the result of the
blood test to the plaintiff, or by confusing the blood samples of
different patients resulting in incorrect results
being released to
the plaintiff.
[34] The SANDF was
represented by senior counsel throughout, and there is no reason why
the costs of senior counsel ought not to
be allowed.
I make the following
order:
1. The plaintiff’s
claim is dismissed with costs, such costs to include the costs of
senior counsel.
ANDRÉ VAN
NIEKERK
ACTING JUDGE OF
THE HIGH COURT
APPEARANCES
For the Plaintiff:
Adv. G Botha SC, with him Adv. LD Scholtz, instructed by Thys Cronje
Inc.
For the Defendant:
Adv. Nellie Cassim SC, instructed by the state attorney