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[2014] ZAGPPHC 57
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Sebidi v Thobejane (36432/2012) [2014] ZAGPPHC 57 (21 February 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: 36432/2012
DATE:
21 FEBRUARY 2014
In the matter
between:
SIMON DIATLENG
SEBIDI
......................................
Plaintiff
And
DR. R K
THOBEJANE
............................................
Defendant
JUDGMENT
MATOJANE, J
[1] The Plaintiff
has instituted an action against the Defendant; a medical
practitioner who the Plaintiff avers committed adultery
with his
wife.
[2] The plaintiff
claims a sum of R 2,5 million made up as follows:
General damages :
R 2 000 000-00
Contumelia : R 500
000-00
PLEADINGS
[3] It is necessary
to quote relevant parts of the particulars of claim and the plea in
some detail, because in both cases, the
evidence fell short of what
was pleaded, and demonstrated that the allegations in the pleadings
were speculative and based on assumptions.
PARTICULARS OF
CLAIM
[4] Paragraph 4 of
the particulars of claim reads:
“On or about
and /or during the period 2011 up until 28th March 2012 the defendant
unlawfully, intentionally and wrongfully
had an adulterous
relationship with the plaintiff’s wife.”
[5] Paragraph 5
reads:
"During the
adulterous relationship between the defendant and the plaintiff’s
wife, the plaintiff had on various occasions
inside the defendant’s
surgery had sexual intercourse with the plaintiff’s wife to
which the defendant personally admitted
before the plaintiff on the
28th March 2012.”
PLEA
[6] Defendant in his
plea denied ever having had an adulterous relationship with the
Plaintiff’s wife and put Plaintiff to
the proof thereof. In
amplification of his denial, Defendant specifically pleaded that:
“5.2.1 the
defendant denies ever having an adulterous relationship with
plaintiff’s wife;
5.2.2 the defendant
denies ever having sexual intercourse with the plaintiff’s wife
at the defendant’s surgery and
5.2.3 the defendant
however does acknowledge the plaintiff’s wife being one of the
defendant’s patients and having consulted
and treated her on
previous occasions”
EVIDENCE OF THE
PLAINTIFF
[7] Plaintiff first
called Liza Prinsloo, a clinical psychologist to testify on his
behalf. She testified that she was requested
by Plaintiff’s
attorneys to compile a psycho-forensic report on the psychological
status of the Plaintiff following a traumatic
event. She was
furnished with an instruction letter from the attorneys and the
combined summons together with the particulars
of claim. The
Plaintiff attended the evaluation with his wife on the 18 July 2013.
Liza Prinsloo testified that Plaintiff informed
her that his first
marriage broke off after 4 years because his wife had an affair. He
married the current wife in 2009. He stated
that she started changing
approximately a year after their marriage. The change included a
reduction in their intimate relationship
and she seemed to live above
her means. He confronted her and enquired if she had an affair but
she did not respond. In 2011
their relationship deteriorated
further. He was made aware of his wife’s frequent visits to
the doctor’s surgery and
on one occasion he waited for her in
the waiting room, her consultation took very long and he had to
leave. He informed her of
the cell phone message he saw on his
wife’s phone on the 28 March 2012 and how he confronted the
Defendant at his surgery.
[8] The Plaintiff
was asked to complete a questionnaire, the Symptoms Checklist - 90 –
R on the presence and severity of psychological
symptoms for the past
7 days. The scores on the Somatization and Psychoticism scales were
found to be raised in comparison to
his other scores and fell two
standard deviations above the normative population. Scores on the
Obsessive – Compulsive, Depressive,
Anxiety, Hostility and
Paranoid dimensions were raised one standard deviation from the norm
and the Global Severity Index fell
two standard deviations above the
norm. This according to Liza Prinsloo suggested that significant
psychological distress was
present. The individual items endorsed
indicated the presence of headaches and weaknesses in his limbs as
well as a general distrust
of others. She testified that the
Plaintiff involuntarily ruminates about the events and the impact it
has had on his life.
[9] In her opinion,
the Plaintiff and his wife could benefit from couples therapy and to
this end 12 sessions of marital therapy
are recommended at an
approximate rate of R800-00 per session. Plaintiff’s wife
informed Lisa Prinsloo that she believed
they had marital problems,
irrespective of her relationship with the Defendant but wanted to
remain married and was motivated to
work hard on their difficulties.
[10] Plaintiff
testified that Defendant has been his family doctor since 2004 and
knows of his marriage to his wife. He referred
the court to an
invoice of a purchase of a washing machine that he said was given to
his wife by the Defendant as a wedding gift.
He testified that in
the early morning of the 28th March 2012 as they were preparing to go
to work, he saw a cell phone message
on his wife’s phone. The
message said, “Cynthia my lover, I hope you slept well and hope
that you are happy about what
we did”. He confronted his wife
about the message and she tried without success to grab the phone
from him. He took the
phone with him to work and saw several other
messages from the same number. When he called the number,
Defendant’s receptionist
answered it and confirmed that the
number belonged to the Defendant who was then busy consulting
patients.
[11] Accompanied by
his wife he went to the Defendant’s surgery to confront him.
His wife told him not to cause a scene at
the surgery. He found
patients in the waiting area and managed to slip in before a patient
whose turn it was to see the Defendant.
He asked Defendant what he
was doing with his wife and Defendant said nothing. He went to his
car to fetch his wife where she
was waiting. He invited Defendant to
go through the messages and the latter told him that he could not.
Defendant broke down
crying saying that he regretted his actions.
Defendant told him and his wife to move to another room for privacy
and Defendant
again apologized and said he will never again phone his
wife. The following Sunday he had another meeting at the consulting
rooms
where the Defendant again apologized.
[12] Following the
confrontation in the Defendant’s surgery, his wife informed him
that Defendant continued to phone her expressing
concern for her
marriage. I must pause to mention that during the consultation with
Liza Prinsloo, Plaintiff’s wife refuted
the allegation by
Plaintiff that Defendant remained in contact with her even at the
time of assessment.
[13] Plaintiff
testified that Defendant subsequently sent him cell phone message
inviting him to a meeting at a local Casino despite
serving him with
an interdict prohibiting him from speaking with him. Transcripts of
the messages were discovered and formed part
of the record. The
Defendant sent the first message on the 11 September 2012 to the
Plaintiff and reads:
“Good morning,
would you be available for a dinner meeting for 18H00 at the Carousel
on Friday the 13th. I will compensate
with R400.00 petrol expense.
Thanks”
In reply, Plaintiff
message reads:
“The meeting
is welcomed; however it will be wise of us to sort ourselves out
before our attorneys since we have had unpleasant
differences in our
approach to the issue of importance. You are the one to steer the
initiative. I will be waiting as always.”
[14] Under
cross-examination, Plaintiff testified that he did not see his wife
having sex with Defendant but was told by his wife
that they slept
together. It was put to him that Defendant denies having an
adulterous relationship with his wife and further
that Defendant
denies having admitted to having a relationship with his wife on the
28 March 2012. Counsel failed to deny the
further allegations made
by the Plaintiff and further failed to put the Defendants version to
the Plaintiff.
HEARSAY EVIDENCE
[15] During
Plaintiff’s evidence in chief, his counsel brought an
application for the admissibility of the hearsay evidence
of
Plaintiff’s wife. The application was refused and I indicated
that I would furnish my reasons as part of the judgment.
These are
my reasons.
[16]
Section 3
of
the
Law of Evidence Amendment Act of 1988
prohibits, in the absence
of agreement, the admission of hearsay evidence unless the interests
of justice require it. The section
reads:
“
3 Hearsay
evidence
(1) Subject to the
provisions of any other law, hearsay evidence shall not be admitted
as evidence at criminal or civil proceedings,
unless -
(a) each party
against whom the evidence is to be adduced agrees to the admission
thereof as evidence at such proceedings;
(b) the person upon
whose credibility the probative value of such evidence depends,
himself testifies at such proceedings; or
(c) the court,
having regard to-
(i) the nature of
the proceedings
(ii) the nature of
the evidence;
(iii) the purpose
for which the evidence is tendered;
(iv) the probative
value of the evidence;
(v) the reason why
the evidence is not given by the person upon whose credibility the
probative value of such evidence depends;
(vi) any prejudice
to a party which the admission of such evidence
might entail; and
(vii) any other
factor which should in the opinion of the court be taken into
account, is of the opinion that such evidence should
be admitted in
the interests of justice.
(2) The provisions
of subsection (1) shall not render admissible any evidence which is
inadmissible on any ground other than that
such evidence is hearsay
evidence.
(3) Hearsay evidence
may be provisionally admitted in terms of subsection (1) (b) if the
court is informed that the person upon
whose credibility the
probative value of such evidence depends, will himself testify in
such proceedings: Provided that if such
person does not later testify
in such proceedings, the hearsay evidence shall be left out of
account unless the hearsay evidence
is admitted in terms of paragraph
(a) of subsection (1) or is admitted by the court in terms of
paragraph (c) of that subsection.
(4) For the purposes
of this section-
'hearsay evidence'
means evidence, whether oral or in writing, the probative value of
which depends upon the credibility of any
person other than the
person giving such evidence;
'party' means the
accused or party against whom hearsay evidence is to be adduced,
including the prosecution.”
[17]
Section 3(1)(c
)(i) confers a judicial discretion on the court to take specific
account of the nature of the proceedings. This refers to the
distinction between civil and criminal proceedings. In civil
proceedings the Plaintiff must prove its case on the balance of
probabilities unlike in criminal cases were the onus is onerous and
the admission of hearsay evidence may unfairly ease the burden
on the
state to prove its case beyond reasonable doubt.
[18]
Section
3(1)(c)(ii)
refers to the nature of the evidence. The Plaintiff’s
wife has an interest in the matter; that she attended the evaluation
by Liza Prinsloo with Plaintiff shows that she wants to save her
marriage and make it work; it is inconceivable that her evidence
if
not tested under cross examination will be objective.
[19]
Sections
3(1)(c)(iii)
- the purpose for which the evidence is tendered is
clearly to prove that Defendant, despite his denials, has had sexual
intercourse
with the Plaintiff’s wife at his surgery on various
occasions without the reliability of her evidence being tested under
cross examination. The probative value of the hearsay evidence
section (1)(c)(iv) - The intended hearsay evidence cannot be
independently
corroborated, if such evidence is admitted then the
judgment will be based on her “say so” as to what
happened without
with no guarantee of reliability of the evidence.
The cell phone messages that have been discovered do not make mention
of any
love relationship between the Defendant and Plaintiff’s
wife. The first message that Plaintiff alleges he read on his wife’s
phone was never discovered. In any event, the message merely asks
whether Plaintiff slept well after what she and Defendant allegedly
did. It is speculative to insinuate from the message that they had
sex the previous day at Defendant’s surgery as alleged
in the
particulars of claim. The hearsay evidence, in my view, will have
very little probative value and will carry no weight
at all if
admitted.
[20] The Plaintiff
has not given any reason why his wife cannot testify (section
(1)(c)(v)): The court will not speculative as to
the reasons why
plaintiff elected not to call her as a witness. There is not doubt
that the admission of the hearsay evidence
will prejudice the
Defendant as he will not have the opportunity to challenge the
evidence despite his denial in his plea that
he never committed
adultery as alleged and most importantly, the court will be denied
the opportunity of weighing her credibility
and reliability of her
evidence in deciding whether the interest of justice require its
admission. I am accordingly not persuaded
that the interest of
justice require the admission of the hearsay evidence of the
Plaintiff’s wife.
EVIDENCE OF THE
DEFENDANT
[21] Defendant
testified that he has been practising as a medical doctor for about
19 years. He denies having had an adulterous
relationship with
Plaintiff’s wife who was his patient. He further denies that
he admitted to Plaintiff on the 28 March
2012 that he committed
adultery with Plaintiff’s wife. He stated that Plaintiff wants
to extort money from him because Plaintiff
has been constantly
sending him phone messages demanding R500 000.00 from him and later
reducing it to R300 000.00. When Plaintiff
phoned to tell him that
he was coming to see him at the surgery he told Plaintiff that he
would regret it as he had embarrassed
him before. He later decided
to send Plaintiff a cell phone message arranging to meet with him and
explain to him that his suspicions
are baseless. Initially Plaintiff
was amenable to a meeting and told Defendant that he did not have
money for petrol. Defendant
offered him R400.00 as compensation.
The meeting never took place as Plaintiff recanted and said they
should meet in the presence
of their lawyers.
[22] During
cross-examination he was shown an invoice of a washing machine that
he allegedly bought for Plaintiff’s wife as
a wedding gift, he
denied knowledge of same. He denied having admitted to having an
adulterous relationship with Plaintiff’s
wife. It was put to
Defendant that his counsel never disputed Plaintiff’s evidence
that Defendant sent a message to Plaintiff’s
wife asking her
about what they did the previous day. Defendant denied having sent
such a message to the Plaintiff’s wife.
He further denied
obtaining a restraining order against Plaintiff. It was suggested to
him that his evidence that Plaintiff wanted
to extort money from him
was a recent fabrication, as it was never put to the Plaintiff when
he testified. He was adamant that
he gave his lawyers his whole
version and cannot explain why they never confronted the plaintiff
with his version.
DISCUSSION
[23] The evidence of
the Plaintiff did not support the allegations in the particulars of
claim, namely that Defendant had an adulterous
relationship with
Plaintiff’s wife for a period of a year until 28 March 2012 and
thereafter. No evidence was led to show
that Defendant has had on
various occasions’ sexual intercourse with Plaintiff’s
wife in his surgery.
[24] Defendant was
not an altogether satisfactory witness. He initially denied that
Plaintiff was his patient and that he did not
know that plaintiff was
married. He sought to create an impression that he knew Plaintiff’s
wife only by her maiden surname
but recanted when confronted with
notes he made in the clinical records. He also initially said the
notes in the clinical records
relating to Plaintiff were made by his
locum but quickly admitted that the handwriting was his.
[25] The only
evidence on the part of the Plaintiff, which suggests that Defendant
committed adultery, is the opportunistic answer
of the Plaintiff
under cross-examination, to the question by defendant’s counsel
whether any person had seen Defendant committing
adultery, he
answered that his wife told him that she had sex with Defendant.
This was hearsay evidence that I had ruled inadmissible.
The
Defendant’s evidence was more consistent with his pleadings,
but he clearly could not explain why his counsel never
confronted the
Plaintiff with his version.
[26] It was
submitted on behalf of the Plaintiff that as Defendant’s
counsel never denied that Defendant cried and admitted
adultery to
Plaintiff, his version should be accepted as true. It is clear that
Defendant’s counsel brought no professional
skill, judgment or
knowledge to the advantage of his client. He failed to take basic
steps to represent his client properly.
[27] While I have an
understanding for the position of the Plaintiff in this case,
sympathy cannot supplement a lack of evidence.
I am of the view that
the evidence falls short of what the Plaintiff is required to prove
for the purposes of the present action,
when I weigh the competing
probabilities, I am not satisfied that the Plaintiff has discharged
the onus to prove his case on the
balance of probabilities.
ORDER:
Absolution from the
instance is granted, each party to pay its own costs.
K E MATOJANE
JUDGE OF THE HIGH
COURT