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[2013] ZAKZDHC 28
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South Coast Recovery Centre and Halfway House CC and Another v National Director : National Prosecuting Authority and Others (5739/13) [2013] ZAKZDHC 28 (31 May 2013)
In the KwaZulu-Natal High
Court, Durban
Republic of South Africa
Case No : 5739/13
In
the matter between :
South
Coast Recovery Centre and Halfway House CC
.............................
First
Applicant
Stephen
Edward Stewart
.......................................................................
Second
Applicant
and
National
Director : National Prosecuting Authority
.................................
First
Respondent
Additional
Magistrate Bryan Munilall N.O.
........................................
Second
Respondent
Minister
of Safety and Security
.
............................................................
Third
Respondent
Glenn
Barry Trouchet
.........................................................................
Fourth
Respondent
Kerry
Trouchet
.......................................................................................
Fifth
Respondent
Netcare
(Pty) Ltd
...................................................................................
Sixth
Respondent
Bikash
Ramchurran
.
........................................................................
Seventh
Respondent
___________________________________________________________________
Judgment
___________________________________________________________________
Lopes J
[1] This matter came
before me by way of an urgent application on the afternoon of the
30
th
May 2013. The applicants seek an order staying
certain inquest proceedings to be held in the Magistrate’s
Court of Port Shepstone
starting on the 3rd June 2013 and proceeding
for five days. The applicants seek that those proceedings are to be
suspended pending
a full and proper investigation by the South
African Police into the death of Blaire Lynne Trouchet (‘Blaire’),
who
died on the 23
rd
February 2011. The applicants also
urge me to order an investigation into the investigation of the
inquest and the circumstances
under which the inquest docket was
prepared and statements filed therein. They also seek that I order
the submission, by the South
African Police Services, of a proper
report as required by the Inquests Act, 1959 (‘the Act’).
In the alternative I
am requested to review and set aside the
decision of the magistrate of Port Shepstone to hold the inquest on
the basis of the inquest
docket submitted to him.
[2] The respondents have
undertaken either to abide my decision or oppose the relief sought by
the applicants. As a result of the
fact that the inquest is scheduled
to begin the second court day after I heard argument, I am required
to make a decision urgently.
I shall therefore attempt to deal with
the matter as best as I can in the time allowed to me.
[3] The history of the
matter may be outlined as follows :
Blaire was26 years old.
She suffered from a drug addiction. She was admitted to the first
applicant, a recovery centre and halfway
house facility, on Sunday
20
th
February 2011 to commence drug abuse rehabilitation;
at the time that she was
admitted and up until her death, one Conrad Lawrence Cooper
(‘Cooper’), was the manager of
the centre and the second
applicant, Dr Stephen Edward Stewart, prescribed medication for
Blaire and attended to her;
on Tuesday the 22
nd
January 2011 inmates and staff at the centre were unable to rouse
Blaire, and after attempts at CPR had failed to revive her
she was
rushed to the casualty section at the Margate Netcare Hospital
managed by the sixth respondent (‘the hospital’);
further attempts to
resuscitate Blaire were made by the medical staff at the hospital,
but were unsuccessful;
various post mortem
examinations were conducted in order to establish the cause of
Blaire’s death;
eventually an inquest
docket containing a number of affidavits and statements was placed
before the public prosecutor in Port
Shepstone who, together with a
number of other State officials, including members of the National
Prosecuting Authority, eventually
submitted an inquest docket to the
second respondent, Additional Magistrate Bryan Munilal;
the full contents of the
inquest docket were conveyed to all parties by the 21
st
January 2013, and on the 31 January 2013 the legal representatives
of the parties agreed that the official inquest hearing would
be
conducted from the 3
rd
June 2013 for five days.
[4] The applicants bring
this urgent application to stay those proceedings on the following
bases :
that ss 3 and 4 of the
Act require an investigation to be carried out by any police
official who has reason to believe that a
person has died from other
than natural causes. The police official is enjoined to investigate
or cause to be investigated the
circumstances of the death and
submit a report thereon together with all the relevant statements,
documents and information to
the public prosecutor, who may call for
additional information. The public prosecutor in turn must submit
the information submitted
to him to the magistrate of the district
concerned, and if it appears to the magistrate that the death was
not due to natural
causes he shall take such steps as may be
necessary to ensure that an inquest is held to determine the
circumstances and cause
of the death;
the circumstances of
this case are such that most of the investigations were carried out
by a private investigator, a Mr de Beer,
who was hired at the
instance of the fourth and fifth respondents who were Blaire’s
parents;
allegations regarding
the alleged improper compilation of the inquest docket relate to :
an ‘affidavit’
allegedly deposed to by a Dr Klatzow which curiously appears to have
been commissioned by the investigating
officer in the matter, one
Warrant Officer Mbhele, but which has not been signed by Dr Klatzow
himself. Dr Klatzow denies having
deposed to the affidavit;
A report by Dr Ganas
Perumal, a specialist forensic pathologist is contained in the
docket and has not been signed by Dr Perumal;
A report by Dr Kennedy
Nyamande, a pulmonologist which is neither signed, witnessed nor
commissioned;
A report by Professor S
R Naidoo, a forensic pathologist, appointed at the request of the
Senior Public Prosecutor in Port Shepstone.
The complaint here is
that Dr Naidoo had previously been involved in an examination of the
histological section referred to by
Dr Perumal on the 22
nd
March 2011 when the post-mortem examination was conducted;
An affidavit by
Professor Virendra Rambiritch an expert on detoxification
medication. He was apparently employed by the Trouchet
family;
A Medibank Resuscitation
Chart prepared at the hospital. There are two copies of this report
put up, and it is alleged that there
are suspicious differences
between the documents which are highlighted in the papers before me.
Reference is also made
to certain threats allegedly made by the fourth respondent to both
Cooper and the second applicant.
[5] Mr
Marais
SC,
who appeared for the applicants together with Mr
Boulle
submitted that the entire investigation may be tainted by
irregularity, dishonesty or bias to the extent that the process was
not conducted in accordance with the provisions of the Act.
Accordingly, it cannot achieve the primary objective of the Act which
is an open, fair and transparent process in terms of which a
magistrate, favoured with accurate and relevant information may make
a finding as required by the Act.
[6] Answering affidavits
were put up on behalf of the Trouchets and the hospital, and a
replying affidavit was put up by the applicants.
[7] With regard to the
complaints made by the applicants regarding the so-called affidavit
of Dr Klatzow contained in the inquest
docket, it is clear that
affidavit purports to be one in terms s 212 of the Criminal Procedure
Act, 1977 (which Dr Klatzow is not
authorised to depose to) and has
not been signed by Dr Klatzow. It certainly appears as if Warrant
Officer Mbhele acted as a commissioner
of oaths, but as the stamp
containing his signature is so poorly reproduced, I am unable to be
certain whether or not he was certifying
the originality of the
document as it stood or whether he was purporting to record an oath.
Certainly above the stamp are the usual
statements regarding the
taking of an oath. It is clear however from the answering affidavits
that reports were prepared by Dr
Klatzow on the 7
th
April
2011 and the 22
nd
April 2011 dealing with the matter. On
the basis of those reports a statement was sent to Dr Klatzow by Mr
de Beer. He was unable
to cast any light on the commissioning of the
document. The defective ‘affidavit’ of Dr Klatzow was
commissioned on
the 16
th
May 2011. As long ago as the 25
th
October 2011 the senior public prosecutor in Port Shepstone was aware
of :
the possibility of bias
due to the fact that the fourth respondent instructed both Dr Ganas
Perumal and Dr Klatzow;
the need to instruct
Warrant Officer Mbhele to refer the matter to Dr Stephen Naidoo from
the Department of Health to study the
contents of the documents and
the statements allegedly made by the doctors.
[8] What this letter
demonstrates is that the investigation of the death of Blaire was
ongoing and involved not only the police,
but the Senior Public
Prosecutor of Port Shepstone, who was unhappy with the investigation
at that stage and required further input.
[9] With regard to the
‘affidavit’ of Dr Perumal, it appears from the answering
affidavits that the initial affidavit
was drafted by Mr de Beer and
sent to Dr Perumal, who confirmed the contents. Mr de Beer
accompanied Dr Perumal to the Westville
Police Station where the
document was signed under oath. Mr de Beer presumes that the
additional pages annexed to the report and
complained of by the
applicants was presumably attached to the affidavit at the request of
the Senior Public Prosecutor in Port
Shepstone.
[10] While the input of
Dr Kennedy Nyamande, the pulmonologist, may have been at the request
of the family, that was done via the
senior public prosecutor.
According to the answering affidavits, Dr Nyamande will be attending
the inquest as a witness and will
give evidence.
[11] Similarly the
appointment of Professor S R Naidoo, a forensic pathologist, was at
the request of the Senior Public Prosecutor
in Port Shepstone. The
fact that he may previously have been involved in the post-mortem
report, does not, prima facie, disqualify
him from expressing a
professional opinion.
[12] With regard to the
affidavit by Professor Vivendra Rambiritch, the detoxification
expert, it is hardly surprising that the
family would have wanted an
expert of this nature to provide his input.
[13] Finally the Medibank
Resuscitation Charts areAnnexes E1 and E2 to the founding affidavit.
They appear in all respects to be
identical save that Annexure E1 has
a number of items highlighted with a yellow highlighting marker. To
the untrained eye there
appears to be no difference whatsoever in the
manuscript writing on the documents. There is no clarity as to who
was responsible
for the highlighting, and I cannot see how that would
cast such doubt on the document that the original cannot be
introduced into
evidence and these aspects explored at the inquest.
[14] Having considered
the aforegoing, I do not believe that the applicants have established
a prima facie case that there was anything
unfair or improper in the
compilation of the inquest docket presented to the Additional
Magistrate in Port Shepstone. His decision
to hold a formal inquest
so as to establish the circumstances and cause of the death of Blaire
was arrived at by him after perusal
of the inquest docket. In terms
of s 5(2) of the Act he is enjoined to do so when it appears to him
that a death had occurred,
and that the death was not due to natural
causes. Upon a perusal of the scant expert information contained in
the application papers,
it is hardly surprising that he did so. In
any event he does so in the exercise of his discretion. His conduct
in that regard does
not appear to satisfy any test which the
applicants would be required to show in order to persuade me to
review that decision.
[15] With regard to the
statements allegedly made by Blaire’s father to Cooper, the
second applicant and others, given the
times when they were made,
they can hardly be surprising. He was no doubt extremely frustrated
by his perceived lack of co-operation
from the staff of the first
applicant, and the statements which he made are unsurprising in the
context of the grief which both
he and the fifth respondent must
continue to suffer. That is not to excuse his conduct if it was as
alleged by the applicants,
but merely to understand it. To suggest
that it is a cause for concluding that the inquest docket was somehow
improperly compiled,
is untenable.
[16] The fact that the
family may have sought to enlist the help of expert medical personnel
to assist the State in arriving at
a proper conclusion is both
unsurprising and, in my view, perfectly proper. Any expert who
testifies before a court does so on
the basis that he or she is
assisting the court and not taking sides with any particular party.
The fact that their views may cast
doubt upon the behaviour of one or
other person is neither here nor there. Their function is to provide
an honest objective opinion
to the court.
[17] With regard to the
possible prejudice suffered by the applicants if I refuse to grant
the relief they seek, I believe there
is none. The applicants will be
represented by senior and junior counsel at the inquest. Should they
desire to call any witnesses
in addition to those which the State
calls, they are fully entitled to make application to the presiding
magistrate to do so. They
will have the right to cross-examine
witnesses and to raise any questions which they may have regarding
the documentation in the
inquest docket with the learned magistrate.
[18] Making a decision
that the proceedings will be somehow irregular because of the
compilation of the inquest docket, is in my
view, to anticipate the
function of the learned magistrate. There is absolutely no reason for
me to do that, nor to suppose that
he would not deal with any
objections or requests made by the applicants’ representatives
in a fair and judicial manner.
In the unlikely event that there is
any complaint which the applicants have at the end of the inquest
findings, that is something
which they can deal with through further
legal proceedings.
[19] Finally it is
necessary to mention the question of urgency. This matter was brought
before me at 2:15pm on Thursday 30
th
May 2013. There is no
reason why the application could not have been brought before me
either at 9:30am on that day or at 9:30am
the next morning. The
practice of this Division is that the applicant in any application
which is brought outside the normal starting
time for Motion Court
must demonstrate that the matter is so urgent that it cannot wait for
the next day, or could not have been
brought at 9:30am on that day.
In this case the applicants received a full copy of the inquest
docket on the 21
st
January 2013. On the 31
st
January 2013 the date for the inquest hearing was arranged by consent
between the parties’ representatives. Mr
Marais
has
impressed upon me that some of the matters contained in the
affidavits were only revealed to the applicants during the last
week
or two. The correspondence which is attached to the fourth and fifth
respondents’ answering affidavits demonstrates
that the
applicants’ representatives had made various demands of the
prosecutor and magistrate regarding their proposed conduct
of the
inquest, and various threats were made that they would ask for the
matter to be adjourned. It is recorded in an email by
the applicant’s
legal representative on the 9
th
May 2013 that they had
already consulted with, and intended to call, medical experts from
Johannesburg, Cape Town, Bloemfontein
and Durban to address the court
on the medico-legal intricacies of the matter. The letter also
records that the State would be
calling various experts. On the 8
th
or 9
th
May 2013 another of the applicants’ legal
representatives recorded the following in a letter :
‘
Our
counsels (sic) are preparing for the inquest hearing with much energy
but we although (sic) we have experienced some difficulty
in
obtaining clarity on a number of items from the state prosecutor,
inquest officer and/or magistrate.’
[20] That letter also
went on to deal with various procedural problems,
as
the applicants’ representatives saw them.
[21] In my view the
urgency is of the applicants’ own making. The lack of urgency
is not one of the reasons I make the decision
I have arrived at
regarding the relief sought. It does, however, impact on the question
of costs.
[22] Mr
Bekker
SC who appeared for the fourth and fifth respondents
submitted that the application was an abuse of the process of our
courts and
accordingly the applicants should be penalised by a
punitive order or costs. I believe that the order which I make will
sufficiently
deal with this aspect,
and it is
unnecessary to go to the lengths suggested by Mr
Bekker
.
[23] In the circumstances
I make the following order :
The application is
dismissed. The applicants, jointly and severally, the one paying the
other to be absolved are to pay the respondents’
costs, such
costs to include those consequent upon the employment of senior
counsel.
Date of hearing : 30
th
April 2013
Date of judgment : 31
st
May 2013
Counsel for the Applicant
: J Marais SC with AJ Boule (instructed by
Counsel for the First
Respondent : G Nel (instructed by the Director of Public
Prosecutions)
Counsel for the Second
and Third Respondents : M Maharaj (instructed by The State Attorney)
Counsel for the Fourth
and Fifth Respondent : SJ Bekker SC (instructed by J Salant)
Counsel for the Sixth
Respondent AV Voormolen (instructed by Norton Rose)
Counsel for the Seventh
Respondent : A van Rensburg (instructed by Macroberts)