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[2010] ZAFSHC 26
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Steenbergen and Others v Minister of Safety and Security (1071/2003, 1072/2003) [2010] ZAFSHC 26 (26 February 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 1071/2003
1072/2003
In
the
matter between:
H
W STEENBERGEN
First
Plaintiff
Z
J CILLIERS
Second
Plaintiff
J
J A HILLS
Third
Plaintiff
G
J DE BEER
Fourth
Plaintiff
N
F VAN ZIJL
Fifth
Plaintiff
J
M MEYER
Sixth
Plaintiff
M
A MYBURGH
Seventh
Plaintiff
and
THE
MINISTER OF SAFETY AND SECURITY
Defendant
_______________________________________________________
JUDGMENT
BY:
MOLEMELA,
J
_______________________________________________________
DELIVERED
ON:
26 FEBRUARY 2010
_______________________________________________________
[1] This
matter came before me in chambers in terms of Rule 36(3) of the
Uniform Rules of Court.
The plaintiffs instituted action against the Minister of Safety and
Security for damages arising out of an unlawful arrest. The
merits
and quantum were separated and a hearing in respect of quantum has
been set down for the 8
th
of March 2010.
[2] The
defendant served a notice in terms of Rule 36 on the plaintiffs on
the 18
th
January 2010. In terms of the afore-said notice, the defendant
required the plaintiffs “to submit themselves to the following
medical examination and/or assessment: emotional and psychological
conditions as alleged to have been caused by the defendant’s
conduct”. As soon as subsequent correspondence exchanged
between the parties made it clear that the envisaged medical
examination
also entailed being admitted at a clinic for seven days
for purposes of observation, the plaintiffs filed a notice of
objection
to the defendant’s notice as contemplated in Rule
36(3).
The
plaintiffs’ averred that Rule 36 does not envisage an
observation or assessment as contemplated by the Defendant. The
plaintiffs further averred that
“in
the alternative, and on the proviso that the court or a judge sitting
in chambers finds that the rule indeed contemplates
observation, then
and in that instance the Plaintiffs contend that the period directed
or set forth by the Defendant in the notice
is unreasonable, improper
and unjust for the following reasons:
2.1
It
cannot be expected from the plaintiffs to submit themselves for an
o observation, day and night, for a period of 6 consecutive
days.
2.2
The
plaintiffs have already made arrangements to have their own medical
adviser present at the examination, and in this regard they
have
engaged the services of prof D A Louw.
By
requiring from the Plaintiffs to be under observation at the clinic
day and night, for 6 consecutive days, this means that
prof D A
Louw would also have to spend the observation time with them at
the clinic, day and night. This is unreasonable.
2.4
In
this regard the plaintiffs suggest to the defendant that the
defendant should request the persons mentioned in its notice who
would conduct the medical examination to contact telephonically Prof
D A Louw at telephone number (051) 401 2444 in order to arrange
convenient hours, within the days of 10 February 2010 and 16 February
2010 for the envisaged medical examinations.”
[3] Pursuant
to the plaintiffs’ objection, the defendant then filed an
application for consideration in chambers, asking for
conditions to
be set pertaining to how the medical examination, if any, should be
conducted. Both parties filed affidavits to
substantiate their
respective stances on the matter. Their counsel also made submissions
in chambers.
[4] After
hearing counsels’ submissions I was of the view that I would be
unable to decide the matter on the basis of the
opinion of just one
psychiatrist, being the defendant’s expert, viz Dr Kuekue. The
plaintiffs had chosen to rely on the
opinion of a clinical
psychologist whose report did not suggest alternatives, save to
mention,
inter
alia
,
that:
“Diagnosis
of, for example, mood disorders, anxiety disorders and post traumatic
stress disorder could be made in such shorter
periods and via
equally, if not more effective methods ... which will also be much
more cost effective and cause less trouble for
the plaintiffs.….I
took the liberty to discuss the merits of the case with two
psychiatrist and one clinical psychologist
who all three have
extensive experience in the field of making diagnosis via
observation. They all agree that a seven day observation
period to
confirm or reject a diagnosis of for example a mood disorder, anxiety
disorder and posttraumatic stress is unnecessary
and “overkill”
(sic). …. “I want to emphasize that I fully agree with
Dr Kuekue that in cases such as
this where there is secondary gain,
the possibility of malingering should always be investigated.
However, I repeat that it is
the nature and extent of the present
procedure that I find to be unnecessary.”
[
5] In
the absence of alternatives, I deemed it appropriate to obtain an
opinion from an independent psychiatrist. Both counsel
agreed that
in order to curb the costs of obtaining such an opinion, I could
request same from a psychiatrist in the employ of
the Department of
Health. Prof P J Pretorius, being the Head of the Department of
Psychiatry at the University of the Free State
and also attached to
the Department of Health, agreed to be of assistance. I provided him
with copies of the respective experts’
reports. In his letter
dated the 25
th
February 2010, Prof Pretorius supported Dr Kuekue’s views with
regards to the need for an admission for purposes of an assessment.
He also stated that he was of the view that the seven-day admission
period suggested by dr Kuekue was reasonable. He essentially
aligned
himself with the following views set out in Dr Kuekue’s letter:
“
1. The clinical presentation of
a psychiatric disorder established and of which clinical management
has been commenced, is scientifically
subject to change, i.e. the
patient shall have probably shown clinical signs of a favourable
response, have the illness process
going into remission or presents
with persistent treatment-resistant signs of illness.
2. The presence of clinical proof of
ill-heath may temporarily cause impairment in the patient’s
ability to function and does
not necessarily imply that such a
patient is permanently incapacitated.
3. Currently, I
find it desirable to ascertain through standardized and scientific
clinical methods of evaluation, the to be evaluee’s
cognitive
and conative functioning.(sic)
4. Generally, in
clinical cases where there exist possibilities of a secondary gain, a
high index of suspicion on
Malingering
is justifiable.”
[
6] In
MGUDLWA
v AA MUTUAL INSURANCE ASSOCIATION LTD
1967 (4) SA 721
(E) it was held that Rule 36 should be applied fairly
so as to adjust between two conflicting interests. On p. 723 the
court stated
that:
“
On the one
hand the party requiring the examination should not be hampered in
preparing for trial or estimating the amount of any
sum which he
might wish to offer by way of settlement. On the other hand the
person required to be examined should be subjected
to the least
possible degree of inconvenience,
regard
being had to the relevant circumstances.
”
(My underlining for emphasis).
[7
] In
DURBAN
CITY COUNCIL V MNDOVU 1966(2)SA319
at
324B-D
,
the court remarked as follows:
“[In
the past], a defendant could not insist upon the opportunity of
gaining information relating to a plaintiff’s
injuries or the
effects thereof on his mental or physical health, save by way of
asking for further particulars in the course of
the pleadings or for
the purpose of trial, or, possibly by way of discovery application.
…As I interpret the Rule, not only
in relation to a medical
examination required in terms of sub-rule (1) but as a whole it is
mainly designed to avoid a litigant
being taken by surprise in
relation to matters with respect to which he would in the normal
course of events be unable, before
trial, to prepare his case
effectively so as to meet that of its opponent.”
[8
] Having
considered (i) the purpose of rule 36 as elucidated in Durban City
Council v Mndovu (
supra
),
(ii) the mental affliction allegedly suffered by the plaintiffs as
set out in their medical experts’ reports and (iii)
the opinion
of an independent psychiatrist as alluded to, above, I find that the
medical examination contemplated in the rule does
envisage mental
assessment as desired by the defendant.
I
am of the view that even though an admission to an institution for
purposes of a medical examination encroaches on an individual’s
right to liberty, such admission is not beyond the purview of Rule
36. Its necessity and duration will be dictated by the extent
of the
plaintiff’s alleged injury to physical or mental health.
[9
]
In
casu
,
all the seven plaintiffs claim to have various mental disorders
emanating from their unlawful arrest. The two psychiatrists are
ad
idem
that malingering needs to be excluded and that same can only be
excluded by continuous observation or assessment. I do not have
a
different view from any other psychiatrist. I therefore find that the
defendant has made out a proper case for the granting of
an order
obliging the plaintiffs to submit to a medical examination that is
inclusive of continuous observation. Indeed, the plaintiffs
should be
exposed to the least possible degree of inconvenience and thus their
admission to an institution should be for the shortest
possible
period. I accept that the 7-day admission period recommended by both
Dr Kuekue and Prof Pretorius is reasonable under
the circumstances.
[10] I
have taken the reasons for the plaintiffs’ objection into
account. These should be considered vis-à-vis the
assurances
given by the defendant in this regard. I am of the view that any
fears that the plaintiffs had ought to be allayed by
the re-assurance
given by dr Kuekue with regards to the professional manner in which
the assessment will be conducted. The defendant
also correctly
pointed out that the persons who will conduct the examination and the
place where the examination will be conducted
are accountable to
professional bodies and any improper conduct on their part can
therefore be reported to those bodies.
[11]
With
regards to the costs of this application, I am of the view that
equity demands that I depart from the general rule that the
costs
should follow the event. After all, the plaintiffs’ objection
is not one that can be described as frivolous. Having
considered all
the circumstances of this matter, I find that the appropriate order
is the following:
[12] ORDER
That
the plaintiffs do submit themselves to a medical examination that
will include being admitted at Care Cure Clinic,
46
Victoria Road, Willows, BLOEMFONTEIN for a medical examination of
the nature set out in the defendant’s notice dated
18 January
2010 by the doctors indicated in the same notice for a duration of 7
consecutive days commencing on a date and time
to be agreed between
the parties or, failing agreement within ten days, to be fixed by
the Registrar of this court.
That
Prof
D
A Louw, the plaintiffs’ medical adviser, may be present at any
time during such medical examination and may have access
to the
hospital records in respect of the plaintiffs.
The defendant shall pay
all the costs in respect of the medical examination and admission to
the clinic.
The costs of this
application shall be costs in the cause.
_________________
M.B. MOLEMELA, J
On behal
f
of plaintiffs: On behalf of the defendant
Adv.
Notshe Adv Grobler
Instructed
by: Instructed by:
The State
Attorney
Lovius
Block Attorneys
BLOEMFONTEIN
BLOEMFONTEIN
/sp