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[2013] ZAFSHC 101
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Vis v Minister of Correctional Services and Others (1283/2013) [2013] ZAFSHC 101 (16 May 2013)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 1283/2013
In matter between:
Willem Vis
..................................................................................................
1st
Applicant
Joseph Maruping
.....................................................................................
2nd
Applicant
Sello Mogale
..............................................................................................
3rd
Applicant
Dawid Khambule
.......................................................................................
4th
Applicant
and
The Minister of
Correctional Services
...............................................
1st
Respondent
G4S Correctional
Services (Bloemfontein)
(Pty) Limited
.........................................................................................
2nd
Respondent
Faranani Life Health
Solutions (Pty) Ltd
............................................
3rd
Respondent
HEARD
ON:
02
APRIL 2013
JUDGMENT
BY:
C.J.
MUSI, J
DELIVERED
ON:
16
MAY 2013
[1]
On 2 April 2013 the applicants applied, on an urgent basis, for Anton
Pillar-type orders. I dismissed the application. These
are my reasons
for doing so.
[2]
The applicants sought the following orders:
“
That any adult person in
control of the second Respondent situated at Mangaung Correctional
Centre, Bloemfontein;
That any adult person in control of
the premises of the Third Respondent’s business situated at
Mangaung Correctional Centre,
Bloemfontein;
Grant the Sheriff of the above
Honourable Court, the independent Supervising Attorneys’ (“the
Supervising Attorney”),
the independent representatives of the
Applicants and a computer expert and, if requested by any of the
aforesaid individuals,
the Applicants’ Attorneys, access to the
premises for the purpose of:
(a) Inspecting and searching the
premises and any containers of whatsoever nature on the premises, for
the purpose of enabling any
of those persons to identify and point
out to the Sheriff originals or copies of or extracts of, all
documents relating to:
i. Medical and Psychiatric treatment
rendered to the Applicants;
ii. Medication dispensed to the
Applicants;
iii. Any communications between the
First Respondent, the Second Respondent or the Third Respondent
jointly and severally, relevant
to the medical treatment applied to
the Applicants.
(b) Examining any item
for the purpose of identifying it and deciding whether it is of the
nature mentioned in the preceding sub-paragraph;
(c) Searching the
premises and any containers of whatsoever nature on the premises for
the purposes of finding any computer data
storage device containing
any of the items referred to above;
(d) Enabling the Nursing
Attendant set out in Annexure “E” hereto to interact with
the Applicants for the purpose of
taking body fluids samples and hair
samples for toxicology screening.
That any adult person in
control of the premises forthwith disclose passwords and procedures
required for effective access to any
computer, computer file and/or
internet website on the premises for the purpose of searching the
computer, computer file and/or
internet website and making an
electronic and/or hard copy of any information contained thereon that
falls within the ambit of
this order.
That any adult person in
control of the premises permit the Sheriff to attach and remove any
document, thing or computer and/or
computer data storage device that
falls within the ambit of this order.
The Sheriff is directed
to keep each so removed item in his custody until the Applicants
authorize its release or this Honourable
Court directs otherwise.
That until completion of
the search authorized in the preceding paragraphs, the respective
Respondents and/or the person in control
of the premises may not,
except with the leave of the Supervising Attorney, access any
document, thing, computer and/or computer
data storage device or make
telephone calls or send an electronic message, save to obtain the
attendance and advice mentioned in
the Notice which is handed over
immediately prior to the execution of this order.
The Sheriff is directed
in the presence and under the supervision of the Supervising Attorney
and before this Order is served or
executed to:
9.1. Hand to the
respective Respondents or other person/s found in the charge of the
premises, a copy of a Notice attached hereto
marked “A”;
19.1. Explain the said
Notice marked “A”;
19.2. Inform those
persons that:
9.2.1. Any interested
party may apply to this Honourable Court on not less than twenty-
four (24) hours’ notice to the offices
of the Applicants’
Attorney for a variation or setting aside of this Order, the Court’s
practices and Rules applying
unless the Court directs otherwise;
9.2.2. The respective
Respondents or their representatives are entitled to inspect items in
the Sheriff’s possession for the
purpose of satisfying
themselves that the inventory referred to herein is correct;
9.2.3. The Supervising
Attorney shall, together with the Sheriff, immediately make a
detailed inventory of all items attached and
removed in terms of this
Order. A copy of this list shall be handed by the Supervising
Attorneys to Applicants’ Attorney
and to the respective
Respondents or to the person/s in control of the premises, if
present, and a copy shall be retained by the
Sheriff.
That, unless a different
direction is obtained from Court, the Applicants and the Applicants’
Attorney shall, not earlier
than three (3) days after the execution
of this Order, become entitled to inspect any of the removed items in
order to assess whether
they provide evidence relevant to the present
Application or to the further legal proceedings envisaged in this
Application and,
if so, to, make copies thereof.
That the Sheriff is
ordered to inform the respective Respondents or the person in control
of the premises that the execution of
this Order does not dispose of
all of the relief sought by the Applicants and to serve
simultaneously the Notice of Motion herein
and supporting Affidavits
and explain the nature and exigency thereof.
By no later than five (5)
days after the execution of this Order, there shall be placed before
this Honourable Court the Report
of the Supervising Attorney with
proof that a copy thereof has been served on the Applicants’
Attorneys and on the respective
Respondents (or their Attorney, if
represented).
If the Applicants do not
institute further legal proceedings against the Respondents which are
or may be foreshadowed in this Application,
within sixty (60) days of
the execution of this order, the Respondent shall, on no less than
seventy-two (72) hours’ notice
to the office of the Applicants’
Attorney, be entitled to apply to this Honourable Court for an Order
that the Sheriff be
ordered to return the removed items immediately
and/or an Order determining liability for legal costs.
That
in the event of the documents or any of them listed or identified in
Annexure “X” hereto not being situate at the
premises,
then the respective Respondents and the person/s in control of such
premises for the time being, are directed to disclose
and point out
the Sheriff and the Applicants’ representatives any other
premises or place where such documents or any of
them are stored and
to point out and to disclose the documents at such other premises or
place. In the event that such disclosure
and pointing out takes
place, then the provisions of this Order shall
mutatis
mutandis
be
applicable to such other premises or place.
The Applicants are
authorized to supplement these papers in the event that the
Respondent/s set the matter down for reconsideration
by this Court.
Costs of the proceedings
to be reserved for determination in the proceedings to be instituted.
Further and/or
alternative relief.”
[3] The documents
referred to in annexure “X” are hard and electronic
copies of:
All medical records,
including medical history continuation sheets relevant to each
applicant;
Psychiatric treatment
records of each applicant;
Unit file of each
applicant;
Health care file of each
applicant;
Pharmaceutical
dispensary records including registers in respect of Schedule 5 to 7
drugs.
[3] The applicants are
inmates at the Mangaung Correctional Centre (the MCC) a private
prison which is operated by the second respondent.
The first, third
and fourth applicants were each sentenced to life imprisonment and
the second applicant to twelve years imprisonment
in different
provinces, for unrelated crimes, and transferred to the MCC.
[4] The third respondent
provides health services at the MCC in terms of an agreement between
it and the second respondent.
[5] The applicants
alleged that they were subjected to involuntary treatment at the MCC.
They alleged that the involuntary treatment
was administered by the
nursing personnel employed by the third respondent at the MCC. When
they resisted treatment they were pinned
down and restrained by
warders so that the injections could be administered. The injections
were administered at the hospital section
of the MCC.
[6] Although they do not
know what medication they received they all believe that it was
anti-psychotic drugs. Due to the involuntary
treatment administered
to them they have all experienced negative symptoms including,
tremors, spasms, spasms of the neck, spongy
tongues, excessive weight
loss/gain, slack jawbones, lack of physical energy, poor
concentration and loss of memory.
[7] According to the
applicants, they are victims of a systemic, planned programme of
medicating inmates; the aim being to break
their spirits and mental
resistance, thereby rendering them compliant and submissive to the
functionaries of the MCC.
[8] They alleged that
they suffered delictual damages arising from the unlawful involuntary
treatment administered to them because
it interfered with their
physical and mental health. They further alleged that upon
ascertaining the exact nature of the treatment
rendered to them they
intend to:
8.1. Apply for an order
interdicting the respondents from continuing or re- implementing the
programme of involuntary treatment
of inmates as the MCC.
8.2. Apply for an order
to compel the respondents to implement an appropriate treatment plan
with each inmates’ consent, if
such treatment is required;
8.3. Institute an
appropriate action for delictual damages.
[9] They alleged that
they have a well-grounded apprehension that the documents mentioned
in paragraph 3 above will be hidden or
destroyed. They hold this
apprehension because, should their allegations be proved the
contractual relationship that the second
respondent and derivatively
the third respondent has with the first respondent will be placed in
peril. The termination of the
contract of the second respondent which
is a 25 (twenty-five) year contract, will have a profound effect on
the finances of the
second respondent.
[10] They alleged that
traces of the anti-psychotic drugs administered to them might be
found in their urine and/or hair samples.
To that extent, they want
their urine and/or hair samples taken, urgently, so that it can be
send for toxicological analysis. According
to them, any attempt to
obtain their bodily fluids or hair samples by way of a conventional
application will be frustrated by the
second and third respondents
because the respondents know that every day that passes diminishes
the prospects of successfully identifying
the substances administered
to them.
[11]
In
Roamer
Watch Co SA
v
African
Textile Distributors
1980
(2) SA 254
(WLD) at 272 B to 275 A Cilliers AJ suggested guidelines
for Anton Pillar-type applications. These are, in summary, as
follows:
11.1.
The applicant should make out a clear case against the party against
whom the order is sought. In
Universal
City Studios Inc v Network Video
1986
(2) 734 (AD) at 755 (A) it was suggested that the applicant should
establish
prima
facie
that
he has a cause of action against the respondent which he intends to
pursue.
11.2. The remedy of
attachment and, where appropriate, removal of documents, information,
articles and the like must be the only
practicable means of
protecting the applicant’s rights and doing justice between the
parties, if the applicant can obtain
the same evidence in some other
way without undue hardship, the procedure of attachment without
notice should not be permitted.
11.4. The evidence
provided by the documents must be material to the applicant’s
case. The incriminatory value of such evidence
must not be a mere
make-weight when considered together with the applicants other
available evidence.
11.5. There must be clear
evidence that the respondent has such incriminating documents in his
possession, or that, at least, there
are good grounds for believing
that this is the case.
11.6. The applicants must
fully set out cogent reasons for believing that there is a real
danger that the documents will be removed
or destroyed and the ends
of justice will be defeated, if the respondent were given notice of
the proceedings against him.
11.7. The order should go
no further than is strictly necessary for the preservation of the
evidence sought to be preserved. It
should not afford an applicant
the substantive relief which he may be entitled to obtain at a later
stage after the respondent
has had the opportunity to be heard.
[12] The applicants in
essence sought an order, firstly, to take hair and/or urine samples
from them and secondly, to search and
seize medical records and
documents of the applicants on the premises of the MCC.
[13] The hair/urine
samples which the applicants want to be taken from them are not in
the possession of the MCC. They are inmates
at the MCC but that does
not mean that hair and/or urine samples may not be taken from them by
a medical practitioner of their
choice.
[14] Section 12(3) of the
Correctional Services Act 111/1998 provides as follows:
“
Every
inmate may be visited and examined by a medical practitioner of his
or her choice and subject to the permission of the Head
of the
Correctional Centre, may be treated by such practitioner, in which
event the inmate is personally liable for the costs of
any such
consultation, examination, service or treatment.”
[15] Section 12(3) gives
an inmate a right to be visited and examined by a medical
practitioner of his/her choice. The permission
of the Head of the
Correctional Centre is only needed when the inmate is to be treated
by such medical practitioner.
[16] Regulation 7(5) of
the regulations published in Government Gazette No 35277 of 25 April
2012 prescribes what the medical practitioner
must do after examining
or treating an inmate. It reads:
“
If
an inmate is attended to by his/her own medical practitioner of
choice, such medical practitioner must provide written reports
to the
Correctional Medical Practitioner made pursuant to the findings of
any special examination, diagnoses, proposed treatment,
interventions
and treatment requires that may be prescribed by the medical
practitioner.”
[17] There is no
allegation, in the papers, by any of the applicants that they cannot
afford a medical practitioner of their choice.
There is also no
allegation that their own medical practitioner would not be permitted
to take their hair and body samples for
analysis. In fact, they
already procured the services of a nursing attendant to take the
samples. They even have a computer expert
who they intended to task
to search for and seize all electronic medical records and
documentation pertaining to them. They went
through all this effort
without asking their medical practitioner to examine them.
[18] The applicants
alleged that upon ascertaining the exact nature of the treatment
rendered to them, they propose to instruct
their attorney to launch
applications wherein they seek the relief in paragraphs 2 and 3
above. It is clear that they wanted to
go on a fishing expedition in
order to see whether there is any incriminating evidence. That is not
the purpose of Anton Pillar-type
orders. There is no allegation about
the nature of the evidence and its incriminatory value. As a matter
of fact, the applicants
wanted to make that assessment after they
have seized and peeped. They clearly wanted to build their suspicions
into a probable
case by inspecting the MCC’s documents. The
applicants alleged that they have a well-grounded apprehension that
the second
and third respondent will destroy or hide their medical
records because the involuntary treatment is illegal and secondly
that
the respondent might cancel the contract between the first and
the second respondent.
[19] The destruction or
concealment of an inmate’s medical records is also not in the
second and third respondent s interest.
That too, may lead to the
first respondent reconsidering or cancelling the agreement between it
and the second respondent. The
applicants, in any event, did not
allege that records of the illegal treatment were kept.
[20] Even if I assume in
their favour that records were kept, I have serious doubt that the
medical practitioners and nurses, who
administered the illegal
medication, would put their careers at risk by destroying all the
medical records of all the applicants.
[21] The applicants
alleged that ordinary application procedure or discovery procedures
will be of no assistance to them, because
the second and third
respondents acted in a constitutionally delinquent manner and cannot,
in the circumstances, be expected to
conduct themselves honestly with
regard to future litigation or discovery. These are bold' and
unsubstantiated allegations.
[22]
The fear of destruction of the medical records, as expressed by the
applicants, is frail. It must be remembered that there
must be a
“grave danger” or a real possibility that the documents
will be destroyed or hidden. See
Hall
and
Another
v Hevns and Others
1991
(1)
SA
381
(CPD)
at
390
D.
The keeping of medical records of inmates is expressly and
comprehensively outlined in the
Health
Care Policy and Procedures of the Department of Correctional
Services.
It
inter
alia
states
that only health care professionals and authorised officials will
collect and record the health history, vital signs, and
other health
appraisal data in an inmate’s health file. It sets out the
minimum standards of record keeping in detail why
and how records
should be kept. The relevant part reads as follows:
“
Record
keeping
This
is a critical aspect that affects the outcome of any
malpractice
suit. It must be assured that documentation is
defensible
by including details of at least the following:
The name of the inmate,
registration and identity number and correctional centre of
incarceration.
All entries in the
health file must be made in black ink.
All interventions
relating to referrals must be documented.
Treatment regime should
be documented legibly and in detail regarding name of medication,
dosage strength, frequency and education
given to patient...
Progress report notes
must be accurately documented.
A correction fluid
(typex) must never be used to delete or correct errors. A line must
be drawn through an incorrect entry and
the person making the
correction must attach his/her signature and date of the correction
including his/her initials and surname
in print.
The use of ditto marks
must be avoided.
A reason for all late
entries must be indicated, and witnessed.
Health records should be
secured and safeguarded against loss, defacement, tampering or use
by unauthorised persons.
An inmate requesting
to review his/her health records may review them in the presence of
a health care official.
A system must be
maintained for the identification and filing of health files to
ensure rapid access to each inmate’s health
record.
The hospital/clinic must
have adequate storage space and equipment for all health records.
The storage for the records must be
safe from fire and water damage
as well as secured from unauthorised access and use...
When an inmate is
transferred to another Correctional Centre, the health record must
be put in a sealed envelope with the name
of the inmate and centre
of admission and accompany him/her...” (My emphasis).
[23] It is clear that the
medical records of each inmate must be kept properly, safe and
secured. The tampering with or destruction
of an inmate’s
health file will have negative consequences for the second and third
respondents’ case and would probably
favour the applicants in
later litigation.
[24] The applicants did
not give any reason why they did not, in terms of the policy attempt
to review their own health files. The
policy gives them that right.
[25]
In
Economic
Data Processing (Pty) Ltd
and
Others v
Pentreath
1984 (2)
SA 603
(TPD) at 618 Coetzee J, correctly in my view, said:
“
I
do not see how one can make an order for the attachment of property
where it is not alleged that a right has already arisen in
the sense
that a demand has been made for the surrender of the property which
he still holds...
These
orders are only made ex
parte
in
any event when it is clear that there is a refusal by a respondent
after a demand properly made or there is a reasonable fear
that he
might destroy it, for instance, if he had notice of the application.”
[26] As stated above the
applicants did not demand their health records. They did not allege
that the records or access thereto
would have been refused. All four
applicants testified that their medical records in the possession of
the second and third respondents
are documents commonly accessed and
used by the respondent and that the documents are not subject to any
special privilege and
that they are indeed entitled to access to them
via the Promotion to Access to Information Act 20 of 2000. None of
them gave any
reason as to why that route was not followed. It is
clear that their unreasonable apprehension, that the documents will
be destroyed,
informed their refrain.
[27]
I am not satisfied that discovery would not yield any result. Anton
Pillar-type orders as Conradie J correctly reminded practitioners
are
not to be regarded as a form of discovery before commencement of an
action. See
Hall
and Another
v
Hevns and Others
,
supra,
at 392 A
- B.
[28] Lastly, according
the fourth applicant:
“
Normally
as soon as I got ‘chatty’ it would be time for my next
injection. The last occasion when involuntary treatment
was attempted
occurred during February 2013. When I was summoned for my injection I
told the nursing staff that I had seen my attorney
of record and that
he intended to go to court to stop them. This had an immediate effect
and they let me go without administering
the injection.”
[29] It is clear that, on
his version, he informed the nursing staff about a possible
application in February 2013 already. If the
third respondent wanted
to hide or destroy evidence it had more than ample opportunity to do
so. They were in effect given notice
of litigation. The involuntary
medication was stopped on the fourth applicant’s say-so,
without any intervention by his attorney.
No reason was given as to
why the other applicants could not follow the same route or why their
attorney did not request the second
and third respondents to stop
with the treatment or implement an appropriate treatment with their
informed consent.
[30] I was convinced that
the applicants did not make out a proper case for the orders sought.
I therefore dismissed the application.
C.J. MUSI, J
On behalf of applicants:
Egon A Oswald Attorneys
PORT ELIZABETH
On behalf of respondents:
No appearance