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[2014] ZANCHC 10
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Malan v Minister of Defence (691/2011) [2014] ZANCHC 10 (5 September 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case
No: 691/2011
DATE:
05 SEPTEMBER 2014
In the matter
between
ADRIAAN JACOBUS
MALAN
........................................................
Plaintiff
V
MINISTER OF
DEFENCE
.............................................................
Defendant
Heard: 13 May
2014
Delivered on: 05
September 2014
JUDGMENT
PAKATI J
[1] The plaintiff,
Mr Adriaan Jacobus Malan, is a Warrant Officer in the South African
Defence Force (SANDF) and attached to the
Human Resources (HR)
Division, Department of Labour and Service Relations. He is based at
Lohatla, Northern Cape. The defendant
is the Minister of Defence of
the Republic of South Africa (“the Minister”). The
plaintiff instituted action against
the Minister for damages he
suffered when the military police, the Minister’s employees
namely, Sgt Modisa Patrick Sehoro,
Corporal Edward Godi and Major
Emmanuel Kagisho Kgokong in the SANDF based at Lohatla, arrested and
detained him on 31 March 2010.
CLAIM 1
[2] The plaintiff
claims that the aforementioned members of the SANDF, at Postmasburg
Sehoro and Godi assisted by Maj Kgokong, acting
within the course and
scope of their duties as military police officials, arrested and
detained him without a warrant on 31 March
2010 at approximately
18h10 until 08h00 on 01 April 2010. He was later released without
being charged. He was distressed and inconvenienced
and as a warrant
officer was severely humiliated and his dignity impaired. He claims
damages in the amount of R90 000-00 for the
alleged unlawful arrest
and detention.
CLAIM 2
[3] During the
arrest, it is alleged, the plaintiff was assaulted by the said
military police officials by being strangled and his
arms twisted
behind his back as a result of which his left arm (the ulna bone) was
cracked. In the process of handcuffing him his
two bottom vertebrae
in his neck went into spasm. The assault took place in full view of
the members of the public. He was later
taken to a doctor at the
Lohatla Medical Hospital for medical treatment. He claims damages in
the amount of R80 000-00 in this
regard.
CLAIM 3
[4] Whilst Dr
Rademan of the Lohatla Medical Hospital examined the plaintiff on 31
March 2010 for the injuries sustained during
the arrest Brig Gen
Nontobeko Mpaxa of the South African Army Combat Centre (“SAAC”),
Lohatla, without the permission
of the doctor or the plaintiff
entered, or more appropriately, burst into the examination room. She
allegedly took photos of him
without his permission, and insulted him
in the presence of Dr Rademan and other medical personnel. She is
reported to have uttered
the following words:
“I am taking
pictures of you so that I can contact your friend Erica Gibson to
show her what her friend, the Lohatla Labour
Relations Officer, looks
like when he is drunk and I am going to send the pictures to the
papers that they can say Lohatla Labour
Relations Officer caught for
drunken driving.” She is said to have added: “You are the
person that tells all the people
in Lohatla to write letters against
me.” That she also made racist remarks by saying: “You
are wasting the doctor’s
time, ag shame, you must remember
South Africa is a tough country and a country for Africans.”
[5] It is claimed
that as the general uttered these words attributed to her she pointed
to her skin indicating her black colour.
As she escorted the
plaintiff out of the consulting room she insulted him continually.
They drove to the officer’s quarters
at Lohatla. The general
threatened to assault him and waved her fist at him. She told him
that she hates whites especially the
plaintiff. As she said so she
spit on the ground. This took place in full view of other military
personnel including junior officers.
According to the plaintiff Gen
Mpaxa’s conduct was degrading of him and caused a commotion. As
a result of her conduct the
military police intervened. As a senior
warrant officer the plaintiff felt humiliated and his right to
privacy was invaded in the
doctor’s consulting room.
Consequently the plaintiff claims damages in the amount of R350
000-00 in this respect.
[6] In her plea the
Minister admitted that the plaintiff was arrested and detained by the
aforementioned officials without a warrant
on 31 March 2010. She
contended, however, that the plaintiff was arrested on reasonable
suspicion of having committed an offence
of driving a motor vehicle
whilst he was under the influence of intoxicating liquor or a drug
having a narcotic effect. The plaintiff
was also accused of assault
or ill-treating a subordinate, the said Sehoro. The Minister denied
that the plaintiff was distressed
and inconvenienced or that his
dignity was impaired. However, the Minister admitted that there were
members of the public who watched
the plaintiff’s arrest.
According to her (the Minister) the plaintiff resisted arrest. As a
result the arresting officers
were constrained to use the necessary
force to carry out the apprehension. The Minister further admitted
that Gen Mpaxa entered
the consultation room uninvited and/or without
consent but claimed that such entry was lawful and justified in terms
of the military
discipline or Code of Conduct. Gen Mpaxa expressed
her disappointment with the plaintiff’s poor behaviour. From
the consultation
room she got into her vehicle and left. The
defendant denied the rest of the allegations and adduced the evidence
of Sehoro, Maj
Kgokong and Gen Mpaxa.
[7] Sehoro is and
has been a sergeant in the military police for 25 years and states in
his evidence-in-chief that he was on standby
duty. It was after 17h30
when he drove to Postmasburg on patrol duty using a marked military
vehicle. He was in military uniform.
When he turned towards Five Star
Restaurant he noticed a Ford Bantam bakkie driven at a high speed by
the plaintiff. The plaintiff
was also in military uniform. The Bantam
nearly collided with his vehicle. Sehoro swerved to avoid an
accident. The plaintiff first
stopped behind him and then reversed
and parked next to Sehoro’s vehicle. He accused Sehoro of being
drunk and grabbed his
car keys and went to his bakkie. Sehoro
followed him and grabbed the plaintiff’s military beret from
the dashboard of the
Bantam. The plaintiff grabbed him by his
shoulders and head-butted him, causing him to bleed from his mouth.
The plaintiff demanded
and was given back his beret. In return he
handed back Sehoro’s car keys. The plaintiff’s breadth
had a smell of alcohol
.
[8] The plaintiff
phoned Col Buys and handed the phone over to Sehoro who refused to
speak to Col Buys. The plaintiff parked his
bakkie in front of Five
Star Restaurant. In the process he almost knocked down Ms Ester
Gaborone, a female soldier and her child.
Sehoro parked his vehicle
next to the plaintiff’s. He approached the plaintiff and asked
him what his problem was. The plaintiff
grabbed him by his shoulders
and threatened to assault him again. Maj Kgokong intervened and
instructed Godi and Tlhako to arrest
the plaintiff for driving a
motor vehicle whilst under the influence of alcohol and for assault.
The plaintiff tried to escape
but they caught up with him. He
resisted arrest and insulted them. He was aggressive but they managed
to restrain and handcuffed
him. The plaintiff suddenly became
co-operative and asked them to remove the handcuffs because they were
too tight, which they
did.
[9] The plaintiff
admitted having consumed a double-tot of whisky. Maj Kgokong, Sehoro
and Tlhako drove to Postmasburg Hospital
with the plaintiff for his
blood to be drawn. The latter was done. The concentration of alcohol
in his blood specimen was 0,06g
per 100ml which was condonable (Exh
“L”). The plaintiff was taken to the police station for
incarceration. He advised
the military police that he uses an
electric breathing machine due to his asthmatic condition. The
machine was brought from his
home.
[10] At the police
station there was no private cell to isolate the plaintiff with the
machine. He was therefore taken to Lohatla
Military Base. On arrival
at Lohatla the plaintiff requested to consult a doctor for his
injuries. They obliged. A little while
later Gen Mpaxa arrived. She
and Maj Kgokong went inside the hospital whilst Sehoro remained in
the car. About 20 to 30 minutes
later Maj Kgokong returned with the
plaintiff. At that stage Gen Mpaxa was still inside the hospital. Maj
Kgokong, Sehoro and Tlhako
looked for W/O Fortuin, who is of the same
rank as the plaintiff to leave him with for the night, but did not
find him. They drove
to the duty room where the plaintiff remained
for the night. Maj Kgokong corroborated the evidence of Sehoro as to
how they arrested
the plaintiff.
[11] For 31 March
2010 the occurrence register (Exh “B”) recorded that
Sehoro was off duty at 15h30 and not 16h00 as
he testified in-chief.
He was also not on standby duty in terms of Part 1 Unit Order. (Part
1 Unit Order was described as an official
document that manages the
day to day and other tasks of the unit for a period of a month).
Sehoro conceded under cross-examination
that he did not have a valid
trip authority when he went to Postmasburg that afternoon, nor did he
have a stabling authority. (A
stabling authority was described as a
form that one completes which specifies that one has a State car at
home and should not be
misused but kept under lock and key). An
inspection gets done at home to confirm that the vehicle is safe.
Sehoro confirmed that
the plaintiff asked him what he wanted at
Postmasburg. When Sehoro was confronted during cross-examination with
the contradictory
versions of the Minister’s witnesses he said
he could not remember all what was said as the incidents of the late
afternoon
unfolded. He blamed the contradictions on the military
Judge not having recorded the evidence correctly during the Military
tribunal.
[12] Sehoro
testified further that he enquired from the plaintiff why he phoned
Col Buys instead of Gen Mpaxa. The plaintiff responded
that he would
not phone the general because she always spoke ill of Ms Erica
Gibson, a journalist. The plaintiff phoned Col Buys
again and handed
the phone over to Maj Kgokong. Col Buys instructed the major
telephonically to tell Sehoro to release the plaintiff
but the major
arrested him instead. The basis of the arrest was (a) a suspicion of
driving a motor vehicle being under the influence
of alcohol, (b)
insulting Maj Kgokong and Gen Mpaxa and (c) for insubordination.
According to Maj Kgokong the plaintiff could not
stand straight, he
swayed from side-to-side, his eyes were blood-shot and his speech was
slurred.
[13] Gen Mpaxa
testified that she occupied the substantive rank of a general and was
the Commandant in the South African Army Combat
Training Centre at
Lohatla Military Base at the time. On 31 March 2010 Maj Kgokong
telephonically reported to her concerning the
incident that took
place between Sehoro and the plaintiff and the inappropriate conduct
exhibited by the plaintiff which resulted
in the latter’s
arrest.
[14] Upon receiving
the report Gen Mpaxa proceeded to Lohatla Military Hospital from
Kathu. She found Maj Kgokong at the hospital
who allowed her to enter
the examination room, whose door was open. She found the doctor, the
plaintiff and two other SANDF members
(a driver and a female
administrative officer) inside. The plaintiff’s examination was
in progress. The plaintiff did not
object to her and Maj Kgokong’s
presence in the examination room. The plaintiff was still in full
uniform.
[15] Gen Mpaxa
confronted the plaintiff concerning the reported incident and
reminded him of his position as Labour Relations Officer.
She
expressed her disappointment in his conduct. The plaintiff apologised
to her, she states. She then left for Kathu. The general
disputed
that she took photos of the plaintiff to display them to his friend,
Ms Gibson. She disputed further that she uttered
the following words:
“You are wasting the doctor’s time; ag shame you must
remember South Africa is a tough country
and a country for Africans.”
That concluded the
defendant’s case.
[16] Dr D Calitz
testified on behalf of the plaintiff. According to the doctor he
examined the plaintiff on 01 April 2010 and completed
the J88 (Exh
“A”). The plaintiff informed him that he had been
assaulted. The following were his clinical findings:
16.1 A bruising on
the left upper arm, on the biceps (the front muscle) area;
16.2 The spraining
of the right wrist;
16.3 A neck muscle
spasm and bruising of the skin around the neck area. The neck muscle
spasm was confirmed through x-rays;
16.4 Bruising and
scratch wounds on the left wrist. The x-rays showed a
small hairline
fracture in the distal radius area. (The radius is the thicker bone
of the two bones in the forearm).
Dr Calitz gave the
plaintiff anti-inflammatories for the injuries to relieve pain.
According to Dr Calitz the injuries were consistent
with assault as
described by the plaintiff. In his opinion as a professional and
qualified doctor with vast experience he testified
that no one may
enter the consulting room while a doctor examines a patient except
with the patient’s authorisation. Maj
Kgokong and Sehoro
confirmed that they took the plaintiff for medical treatment at his
request. The major in particular specifically
confirmed the injury
sustained by the plaintiff to his wrist during the handcuffing
struggle.
Dr Rademan was not
called to testify.
[17] At the close of
the case for the defendant Mr Van Niekerk, for the plaintiff, argued
that the defendant has failed to discharge
the onus which rested on
it on a balance of probabilities with regards to Claim 1 (unlawful
arrest and detention) and Claim 3 (the
infringement of personality
rights). He closed the plaintiff’s case without leading
evidence in respect of claim 1. With
regards to the assault (Claim 2)
he argued that sequelae flow from the unlawful arrest (Claim 1) and
also closed the plaintiff’s
case without leading further
evidence.
[18] Mr Ramawele,
for the Minister, in response conceded that the arrest and detention
(Claim 1) of the plaintiff by the employees
of the defendant were
unlawful.
[19] The onus of
proving the lawfulness of the plaintiff’s arrest and detention
rests upon the defendant to be discharged
on a balance of
probabilities. In ZEALAND v MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT AND ANOTHER
[2008] ZACC 3
;
2008 (2) SACR 1
(CC) at paras 24 and 25 Langa
CJ stated:
“[24] The
Constitution enshrines the right to freedom and security of the
person, including the right not to be deprived of
freedom arbitrarily
or without just cause, as well as the founding value of freedom.
Accordingly, it was sufficient in this case
for the applicant simply
to plead that he was unlawfully detained. This he did. The
respondents then bore the burden to justify
the deprivation of
liberty, whatever form it may have taken.
[25] This is not
something new in our law. It has long been firmly established in our
common law that every interference with physical
liberty is prima
facie unlawful. Thus, once the claimant establishes that an
interference has occurred, the burden falls upon the
person causing
that interference to establish a ground of justification.”
[20] Kriegler J had
this to say in EX PARTE MINISTER OF SAFETY AND SECURITY AND OTHERS:
IN RE S V WALTERS
2002 (2) SACR 105
(CC) at 123e-f para 30:
“[30] …The
arrest of a person by definition entails deprivation of liberty and
some impairment of dignity and bodily
integrity.”
See further MINISTER
OF LAW AND ORDER AND ANOTHER v DEMPSEY
1988 (3) SA 19
(A) at 38B-C.
In my view it will
therefore be a futile exercise to deal in any more detail with Claim
1 having regard to the cases referred to
and the concession fairly
and correctly made by Mr Ramawele.
[21] With regards to
Claim 2 (the assault) Mr Van Niekerk submitted that the physical
apprehension of the plaintiff constituted
assault in itself and when
it is not underpinned by any justification constitutes unlawful
arrest. The Minister in her plea denied
that her employees assaulted
the plaintiff and pleaded that the plaintiff resisted arrest. In the
premise it was contended that
the arresting officers used reasonable
or the necessary force to carry out the arrest. It was in fact
conceded that ‘the
necessary force’ used resulted in the
plaintiff sustaining the injuries that the doctor described in the
J88 medical form.
[22] Dr Calitz’s
evidence was uncontested. It was common cause or not disputed that
the plaintiff did not carry any injuries
prior to his arrest. The
assault on the plaintiff can therefore not be said to be lawful when
it was occasioned by the unlawful
arrest and detention.
[23] HOFFMAN AND
ZEFFERT IN THE SOUTH AFRICAN LAW OF EVIDENCE 4th Ed at 508 state:
“If at the end
of the plaintiff’s case there is not sufficient evidence upon
which a reasonable man could find for him,
the defendant is entitled
to absolution. Or, as it has been expressed on more than one occasion
by the Appellate Division, “the
only question” is
“whether, at the close of the plaintiff’s case, there was
such evidence before it upon which
a reasonable court might, not
should, give evidence against the defendant.” Trengove JA has
said in OOSTHUIZEN v STANDARD
GENERAL VERSEKERINGS MAATSKAPPY BPK
1981 (1) SA 1032
(A) at 1035H-36A that this is the usual measure used
to determine, at this stage, whether the plaintiff’s evidence
is sufficient
to avoid absolution. It is submitted that the use of
the qualification “gewoonlik” (usually) does not signify
that
there is, unusually, some other yardstick. The same rule applies
in cases in which the defendant begins but fails to discharge the
duty to adduce evidence, except that in such a case the proper order
would be the judgment for the plaintiff.”
[24] The third claim
relates to the infringement of the plaintiff’s rights to
privacy and dignity in that Gen Mpaxa, without
invitation or consent
by the plaintiff, or even the doctor, barged into the examination
room whilst the examination was in progress.
The plaintiff alleged
further that Gen Mpaxa insulted her, hurled racist remarks at him and
threatened to assault him; that this
conduct humiliated and severely
traumatised him.
[25] Mr Ramawele
submitted that the defendant did not bear the onus to prove the
invasion of privacy. According to him the defendant
admitted the
entrance into the examination room but disputed the infringement of
privacy. He argued that the plaintiff should therefore
have led
evidence to prove the infringement of privacy. The Minister’s
plea states in para 12. 2 that “Gen Mpaxa’s
aforesaid
entry into the consultation room was lawful and justified.”
This was in response to para 13 of the plaintiff’s
Particulars
of Claim which runs as follows:
“13. CLAIM 3
On or about 31 March
2010 and at the Lohatla military medical facility whilst receiving
[treatment] for his injuries sustained during
the illegal arrest the
Plaintiff’s right to privacy between doctor and patient was
infringed by Brig Gen Mpaxa of the South
African Army Combat Centre,
Lohatla, in that she:
13.1 Intruded the
consultation room [uninvited] where the Plaintiff was “under
medical examination;”
13.2 Further
infringed his privacy and dignity by starting to take photos of him
without any permission whatsoever from the Plaintiff.”
[26] NEETHLING
POTGIETER VISSER in the LAW OF DELICT 3rd Ed p 354 state as follows:
“The right to
privacy is recognised as an independent personality right which the
courts have included within the concept
of dignitas. Privacy is an
individual condition of life characterised by seclusion from the
public and publicity. This implies
an absence of acquaintance with
the individual or his personal affairs in this state. Accordingly,
privacy may only be infringed
by unauthorised acquaintance by
outsiders with the individual or his personal affairs.”
See JANSEN VAN
VUUREN v KRUGER
[1993] ZASCA 145
;
1993 (4) SA 842
(A) at 849E-H.
[27]
If wrongfulness
has been established, as in the case of an insult, a presumption of
animius iniuriandi arises which may be rebutted
by the defendant. If
he fails to do this, the actio iniuriarum is available to the
plaintiff. See Neethling Potgieter Visser supra
at 356. See also
JANSEN VAN VUUREN AND ANOTHER NNO v KRUGER
[1993] ZASCA 145
;
1993 (4) SA 842
(A) at
849C-D. Harms JA in MEDIA LTD AND ANOTHER v JOOSTE
[1996] ZASCA 24
;
1996 (3) SA 262
(A) at 271J stated that a person is entitled to decide when and under
what conditions private facts may be made public. NEETHLING
POTGIETER
VISSER states further at 354:
“If the
plaintiff proves that he feels insulted in circumstances where the
reasonable man would have also felt insulted, a
presumption of
wrongfulness arises which the defendant may rebut by proving the
existence of a ground of justification for his
conduct.
If he does not
succeed in doing this, wrongfulness is certain and a presumption of
animus iniuriandi arises. The onus is then on
the defendant to rebut
this presumption by proving a ground excluding intent. If he fails to
do this, an iniuria is proved.”
See MINISTER OF
POLICE v MBILINI
1983 (3) SA 705
(A) at 716A-E.
[28] Hoexter JA in
MINISTER OF JUSTICE v HOFMEYR
[1993] ZASCA 40
;
1993 (3) SA 131
(A) at 153D-E stated:
“The plain and
fundamental rule is that every individual’s person is
inviolable. In actions for damages for wrongful
arrest or
imprisonment our Courts have adopted the rule that such infractions
are prima facie illegal. Once the arrest or imprisonment
has been
admitted or proved it is for the defendant to allege and prove the
existence of grounds in justification of the infraction.”
[29] Chapter 2 (s
10) of the Bill of Rights guarantees that everyone has inherent
dignity and the right to have their dignity respected
and protected.
The question is whether the intrusion by Gen Mpaxa in the examination
room without the plaintiff’s consent
was lawful and justified
and whether the evidence adduced by the defendant passed muster.
[30] Mr Van Niekerk,
for the plaintiff, argued that the alleged degrading and racist
remarks made by Gen Mpaxa in the presence of
Dr Rademan and other
medical personnel and taking of photos, the threats to assault the
plaintiff, shouting at him in the presence
of his subordinates serve
as aggravating features of the infringement of the plaintiff’s
personality rights and will be dealt
with when quantum is argued.
This approach was endorsed by Mr Ramawele.
[31] When Gen Mpaxa
was asked why she asked Maj Kgokong for permission to enter the
examination room she replied:
“The reason
why I asked, because he was in hospital, it is because he might be
with doctors and they might be consulting with
him and I know that I
cannot go in when someone is still going through medical or a doctor
is busy with the person. Kgokong’s
answer was that “general,
you may go in because I have also been in there and there are other
people in there who are not
doctors or medical practitioners. I asked
Kgokong to accompany me so we could go in together. I did not go in
there alone.”
She also said: “I
did not ask for permission from him,” meaning the plaintiff.
From the above statements it is clear
that Gen Mpaxa was aware that
she was violating the plaintiff’s right to privacy. She later
admitted that she was fully aware
of the doctor-patient privilege and
conceded that she should have respected it.
[32] The mere
entrance by Gen Mpaxa and Maj Kgokong in the examination room as
described and conceded to, was unlawful and constituted
an
infringement of the plaintiff’s right to privacy and impugned
his dignity. The onus therefore rests on the defendant to
dispel this
prima facie case. In HARDAKER v PHILLIPS
2005 (4) SA 515
(SCA) at
524E-I para 14 Scott JA held:
“It is now
firmly established that publication of a defamatory statement (or
other defamatory material) gives rise to two
presumptions: first,
that the publication was unlawful, and second, that the statement was
made animo injuriandi, ie with a deliberate
intention to inflict
injury. (See eg Joubert and Others v Venter
1985 (1) SA 564
(A) at
696A.) While the two presumptions arise from the same event, they are
essentially different in character. The presumption
of animus
injuriandi relates to the defendant’s subjective state of mind;
the presumption of unlawfulness relates to objective
matters of fact
and law. (Neethling v Du Preez and Others; Neethling v The Weekly
Mail and Others
[1993] ZASCA 203
;
1994 (1) SA 708
(A) 768I-769A.) Until comparatively
recent times, there was doubt as to the nature of the onus of
rebuttal. It is now settled that
the onus on the defendant to rebut
one or other presumption is a full onus, ie it must be discharged on
a preponderance of probabilities.
(Mahomed and Another v Jassiem
[1995] ZASCA 115
;
1996
(1) SA 673
(A) at 709H-I.) A
bare denial on the part of the defendant will therefore not suffice.
Facts must be pleaded by the defendant that
will legally justify the
denial of unlawfulness. (National Media Ltd v Bogoshi
[1998] ZASCA 94
;
1998 (4) SA
1196
(SCA)
1999 (1) BCLR 1)
at 1202H (SA).)”
[33] Mr Ramawele
argued that the Hardaker-case is distinguishable from the instant
case because it deals with the publication of
defamatory articles
published in a newspaper. Counsel intimated that in Hardaker-case the
elements of defamation were admitted
unlike in the instant case where
the defendant only admits entrance in the examination room and not
the infringement; That the
principles set out in Hardaker favour the
defendant’s case that no onus rests on it; and further that the
onus instead rested
on the plaintiff to show that he was indeed
assaulted and that his right to privacy was infringed. In response
Mr Van Niekerk
submitted that there was no duty on the plaintiff to
testify and supplement the defendant’s case if the plaintiff’s
case has already been established.
[34] The following
is stated at p353 of Neetling Potgieter Visser supra:
“A person’s
dignity embraces his subjective feelings of dignity or self-respect.
Infringement of a person’s dignity
accordingly consists in
insulting that person. There are an infinite number of ways in which
a person may be insulted. Any insulting
words or belittling or
contemptuous behaviour may be included here.” See the Mbilini
case at 715G-716A supra.
[35] Maj Kgokong was
very evasive in answering questions and committed several
self-contradictions. In his evidence-in-chief he
testified that he
was already in the consultation room when Gen Mpaxa phoned that she
was at the parking bays. He then went out
to meet her. In his
statement (typed version), Annexure “P” he testified
differently by stating that:
“On our
arrival at the duty room, Warrant Officer Malan requested to consult
with the doctor for the alleged injuries sustained
during his arrest.
We then took him to Lohatla Sickbay and duty personnel called the
sister-on-call. A moment after the arrival
of the sister-on-call,
Brig Gen N Mpaxa also arrived. We followed the sister-on-call and
Warrant Officer Malan, Brig Gen N Mpaxa,
the Commandant, told Warrant
Officer Malan that she, the Commandant, is disappointed in what
Warrant Officer Malan has done.”
[36] When it was put
to the major by Mr Van Niekerk that he never phoned Gen Mpaxa after
he had been in the examination room but
in fact he and the general
followed the plaintiff and the doctor to the examination room. The
major conceded: “I agree with
that, it’s written here”.
He and Gen Mpaxa conceded that the examination was still in progress
when they entered the
examination room. Gen Mpaxa confessed: “The
doctor was holding the patient on his arm near the neck but on his
arm.”
This statement served to advance the plaintiff’s
case even further.
[37] Gen Mpaxa went
on to say:
“So even in
this whole South African Defence Force, I have never experienced such
a Commander would then be sending a message
perhaps to request
permission to enter [the examination room] from a patient himself. It
would be the first time it would transpire
with Malan.”
This clearly shows
that Gen Mpaxa was never going to ask for permission from the
plaintiff. She insisted that she had a right to
enter as Commander
and Chaplain. In the same breadth she said she knows that the
Constitution guarantees the right to privacy for
everyone. The two
views are irreconcilable.
[38] There is no
evidence that Gen Mpaxa enquired about the condition of the
plaintiff. She expressed her disappointment in the
plaintiff on
matters reported to her and never sought an explanation from the
plaintiff. She did not dispute this. She insisted
that there were
also other people in the room and stated that the plaintiff was not
naked but fully clothed. The general’s
whole demeanour displays
anger at the plaintiff. One does not sweet-talk anyone in anger.
[39] Even though Gen
Mpaxa testified that there was nothing wrong with Col Buys to have
attended to the problem she nevertheless
expressed her unhappiness
that the plaintiff phoned Col Buys and not her. I cannot see the
necessity for the general to travel
from Kathu to Lohatla as Col Buys
was in the vicinity. Her excuse for the trip was that she wanted to
ensure that the plaintiff’s
breathing machine was correctly
dealt with. Strangely enough she never even saw the machine nor did
she see where it was installed.
When pressed she adjusted her
evidence and said her concern was not really to see to the correct
manipulation of the machine but
to establish where it would be
installed. When asked if she identified a room where it could be done
she was very evasive. I had
to urge her to appropriately answer the
question. She then conceded that she did not identify any room for
that purpose.
[40] Maj Kgokong
also could not justify his intrusion into the examination room. His
explanation was that he merely was accompanied
Gen Mpaxa. He is not
credible on this aspect. He has given several versions on it. He
disputed that he gave Gen Mpaxa permission
to enter the examination
room. He testified that Gen Mpaxa did not ask for permission from him
but asked whether she was allowed
to enter. When it was put to him
that his response to Gen Mpaxa as testified to by Gen Mpaxa was as
follows: “General you
may go in”, he said: “I
believe that the General didn’t finish up my response. I don’t
know, maybe she
forgot something there, but that is not what I told
her.”
[41] The argument by
Mr Ramawele that the mere entrance in the examination room did not
constitute an infringement of the plaintiff’s
right to privacy
and dignity cannot be upheld, especially in the face of Gen Mpaxa’s
concession regarding the doctor-patient
privilege. It does not make a
difference whether the plaintiff was fully clothed or not. No
justifiable explanation therefore was
given for their unlawful
conduct. On their own admission they infringed the plaintiff’s
right to privacy. The general was
at the apex of the Defence Force in
the Northern Cape. She should have known better. Her assertion that
she sought authority from
her subordinate to enter the doctor’s
consulting room lacks conviction, as the permission would still have
been invalid.
The general did not enter the consulting room, but she
intruded.
[42] The defendant
therefore failed to discharge the onus that she was settled with. In
my view the principle in the Hardarker-case
(supra) is in point and
is followed. The plaintiff’s claim in respect of Claim 3 must
therefore also succeed.
[43] What remains is
for the plaintiff to prove the extent of damages he suffered in
respect of all three claims.
In the circumstances
the following order is made.
1. The plaintiff, Mr
Adriaan Jacobus Malan, succeeds in all three claims, namely Unlawful
Arrest and Detention (Claim 1); Assault
(Claim 2) and Invasion of the
Plaintiff’s Privacy (Claim 3).
2. The defendant,
the Minister of Defence, is ordered to pay the costs of suit on a
party and party scale.
BM PAKATI
JUDGE
On Behalf of the
Plaintiff: ADV GJ VAN NIEKERK
Instructed
by: JOHAN KOTZE ATTORNEYS
ENGELSMAN
MAGABANE INC
On Behalf of the
Defendant: ADV RPA RAMAWELE
Instructed
by: OFFICE OF THE STATE ATTORNEY