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[2024] ZAFSHC 211
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Louw v Fourie N.O and Another (3074/2016) [2024] ZAFSHC 211 (8 July 2024)
FLYNOTES:
PERSONAL
INJURY – Workplace abuse –
Failures
by employer
–
Nurse
verbally abused by doctor – Failure by hospital to deal with
complaints and grievances – Psychological wellbeing
of
employees – Hospital failed in implementation of its own
precautionary measures – Discussion on
amende
honorable
and
actio
iniuriarum
–
Apology not accepted by plaintiff due to wording – Plaintiff
submitted numerous complaints without appropriate
response from
hospital – Litigating for years and hospital late in
presenting open tender and apology – Entitled
to punitive
cost order.
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges:
YES/NO
Circulate
to Magistrates:
YES/NO
CASE
No.: 3074 /2016
In
the matter between:
TILANA
ALIDA LOUW
Plaintiff
And
JAN
MATTHEUS CHRISTIAAN FOURIE N.O.
First
Defendant
NETCARE
UNIVERSITAS HOSPITAL
Second
Defendant
Judgment
by:
VAN RHYN J
Heard
on:
6 JUNE 2024
Delivered
on:
8 JULY 2024
[1]
The plaintiff, Tilana Alida Louw, a female employed as a theatre
manager at a private hospital
at Bloemfontein, instituted an action
on 1 July 2016 against Dr S P Grobler, cited as first defendant, and
Netcare Universitas
Hospital (“Netcare”), the second
defendant, for payment of damages under the
actio iniuriarum
.
Netcare is situated at Universitas, Bloemfontein and is operated in
terms of a public private partnership under the auspices of
Netcare
Ltd, a public company with its principal place of business situated
at Sandton, Gauteng. Dr Grobler passed away and
was substituted
as a defendant by the executor of his deceased’s estate.
[2]
The action between the plaintiff and the estate of the late Dr
Grobler (herein after referred
to as “Dr Grobler”) was
settled in terms of a confidential settlement agreement. Netcare,
somehow, became aware of
the terms of the confidential settlement
agreement and pleaded details thereof in its amended plea. Subsequent
to an order issued
by this court during 2021, Netcare had to comply
with the plaintiff’s Rule 35(3) notice, and after several
amendments to
her particulars of claim, the matter was certified
trial ready and enrolled for hearing of evidence.
[3]
The background to this claim is as follows: The plaintiff obtained a
nursing diploma at the University
of the Free State in 1984. The next
year she completed a post basic diploma. After gaining experience as
a scrub nurse since 1987,
she commenced her employment with Netcare
as a Surgical Theatre Manager, also referred to as a “unit
manager” from
1 April 2005. Her job description entailed that
she was charged with overseeing and managing the operating theatres
at the hospital
which also included managing the theatre staff and
monitoring patient care in the theatres.
[4]
When she commenced with her task as theatre manager she was warned by
the then hospital manager,
amongst others, that one of the surgeons,
who conducted a private practice at Netcare and performed surgeries
at the hospital’s
surgical theatres, has an “aggressive
type of personality”. The plaintiff soon met with Dr Grobler
and his temper tantrums
as did numerous other employees who worked
with him in the surgical theatres.
[5]
The plaintiff averred that Dr Grobler continually and with the intent
to injure her, verbally
abused her during the period 1 April 2005 to
2016 by hurling profanities, insults, blasphemous language and
obscenities at her
while in the presence of other operating theatre
staff and even members of the public. Even though counsel appearing
on behalf
of the plaintiff, Mr Steyn and counsel on behalf of
Netcare, Mr Bezuidenhout, as well as the plaintiff during her
testimony, consciously
avoided reference to the particular words
uttered by Dr Grobler during the trial, I am of the view that the
nature of the case,
extent and measure of the plaintiff’s claim
against Netcare cannot be evaluated without having regard to the
profanities,
insults and obscenities articulated by Dr Grobler.
[6]
During 2018 the plaintiff amended her particulars of claim to include
the specific profanities
and racial slurs. The said profanities,
insults and obscenities included, but were not limited to the
following as pleaded in paragraph
7 of the particulars of claim:
“
7.1
calling the plaintiff a “poes”;
7.2
Calling the plaintiff a “wit kaffirmeid”;
7.3
Calling the plaintiff a “kont”;
7.4
Calling the plaintiff a “fokken bitch”;
7.5
Saying to the plaintiff that he wanted to give her a “poesklap”;
7.6
Saying to the plaintiff that he wanted to “bliksem” her.”
[7]
The claim against Netcare is that it failed to come to the assistance
of the plaintiff, notwithstanding
her numerous requests and lodgement
of complaints. Netcare failed to act against Dr Grobler,
notwithstanding the fact that it was
common knowledge that he treated
the plaintiff and other theatre staff in a similar way. Netcare
failed to deal with the allegations
of verbal abuse seriously and
expeditiously and permitted Dr Grobler wide latitude in his conduct
towards the staff and in particular
the plaintiff. Netcare
furthermore failed to create a working environment in which its
employees were protected and not subjected
to verbal abuse. The
psychological wellbeing, mental tranquillity and dignity of Netcare’s
employees, in particular that
of the plaintiff, were not preserved
and protected in that Netcare failed to take all or any reasonable
steps in this regard.
[8]
It is therefore alleged that, by virtue of the foregoing, Netcare had
wrongfully breached its
legal duty owed to the plaintiff to create a
work environment free from verbal abuse and intimidation and to take
reasonable care
of the plaintiff’s safety which included a duty
to protect her from psychological harm. As a result of Netcare’s
failure
to act, the plaintiff was humiliated and degraded, suffered
shock, anguish, fear and anxiety. Her mental tranquillity and
emotional
integrity were disturbed and she suffered self-image
disturbances. The plaintiff suffered severe psychological and
psychiatric
trauma manifesting as post-traumatic stress syndrome and
major depressive disorder for which she requires psychotherapy
treatment.
[9]
On 6 October 2021 plaintiff again amended her particulars of claim by
inserting the following
paragraph:
“
17 In addition to
the damages to which the plaintiff is entitled as aforesaid, the
plaintiff is: -
17.1
in pursuance of the actionable injuries committed by the first
defendant as pleaded above; and
17.2
in pursuance of the second defendant’s actionable failures
which allowed the first defendant’s
actionable injuries to
continue to be committed as pleaded above; and in accordance with the
judgment in Le Roux and Others v Dey
and Others
[2011] ZACC 4
at
paragraphs 195 to 203, but especially at paragraph 203, entitled to
an order for an apology from each of the first and second
defendants
in the form contained in prayer 3 below.”
[10]
In the prayers, the claim for payment of R627 000.00 with
interest and costs furthermore included the
following specific
prayer:
“
3. The first and
second defendants are each directed to publish a written apology in a
conspicuous manner in the Volksblad newspaper
the (sic) within 30
days from the date of the court’s order as follows:-
3.1
the first defendant is to apologise for his conduct as set out in
paragraphs 5 to 7 of the
particulars of claim; and
3.2
the second defendant is to apologise for its conduct as set out in
paragraphs12 to 13 to
of the particulars of claim.”
[11]
As a result of the numerous amendments to the plaintiff’s
particulars of claim, Netcare, over the years
accordingly also
amended their plea. Netcare pleaded that the plaintiff made
complaints about alleged insults and profanities during
2005 and
2012. Netcare was however unable to locate any complaints to be
consistent with what is alleged in paragraph 7 of the
amended
particulars of claim. Netcare acknowledged that the plaintiff acted
on behalf of other staff members in making complaints
regarding
abusive language by Dr Grobler. Netcare accepted that when Dr Grobler
insulted the plaintiff as pleaded, she felt humiliated
and degraded.
Netcare denies that the plaintiff suffered damages in the amount
claimed or at all.
[12]
Netcare denied that it breached its legal duty owed to the plaintiff
and pleaded that when complaints or
grievances were brought to the
attention of Netcare, steps were taken against Dr Grobler which,
inter alia
consisted of the following;
12.1 by
instituting a grievances investigation;
12.2 by
taking management steps;
12.3 by
convening meetings; and
12.4 by
taking action against Dr Grobler to apologise for his conduct.
[13]
The matter was enrolled to be heard on 5 to 7 and 9 February 2024 and
from12 to 14 and 16 February 2024.
The plaintiff presented her
testimony and was cross examined over 3 days. Without concluding her
cross-examination, the parties
agreed to commence with the evidence
in chief of one of her expert witnesses, Professor (emeritus) Halton
Cheadle. Professor Cheadle’s
cross-examination spanned one full
day on 13 February 2024 and was not concluded. Both the
cross-examination of the plaintiff
and her expert witness stood over
to proceed when the matter resumed on 3 June 2024. On 3 June 2024 an
open tender was made by
Netcare.
[14]
The Notice of Unconditional Offer of Settlement dated 3 June 2024
provides as follows: “…the
Second Defendant by way of
offer in full and final settlement of the Plaintiff’s entire
claim as set out in Plaintiff’s
prayers to its Summons, the
Second Defendant, having duly furnished written authority hereto to
its attorney of record herein,
hereby:
1. Instructed and caused
the publication of the following statement in a conspicuous manner in
the Volksblad newspaper:
‘
3 June 2024
Dear Ms Louw
Subject: Letter of
apology from Netcare
On behalf of Netcare, we
wish to express our most sincere apologies for the many years of
distress and anguish that you felt.
We acknowledge the events
that unfolded and regret that it has taken this long to reach
resolution.
All Netcare staff members
and associated healthcare workers should always feel that they are
protected and supported by the company
and its management and that
their concerns and grievances are heard and acted upon. This is
endorsed by our company values,
particularly those of Compassion and
Dignity.
The healthcare
professionals who worked within our hospitals are tasked with the
immense responsibility of safeguarding the lives
and best interests
of the patients in their care, often under considerable pressure.
However, this should not impact the
respect and harmony of the work
relationship required.
Netcare will always
endeavour to take all reasonable steps in providing our employees
with a conducive work environment and must
do so with the highest
regard for patient safety.
We apologise sincerely
that you felt that Netcare did not sufficiently support you in the
execution of your duties while being subjected
to the disrespect and
hurtful actions at the hands of an independent fellow healthcare
practitioner.
We hope that you will be
able to find peace and healing after these traumatic events.
Yours sincerely,
Dr Richard Friedland and
Dr Erich Bock.’
2. Tenders to make
payment in the sum of R300 000.00 (three hundred thousand rand)
towards the plaintiff’s claim
of damages and past and future
medical expenses;
3. The Second
Defendant also tenders to make payment of:
3.1 50% of the
plaintiff’s taxed or agreed costs, on a party and party scale,
up to the date of the settlement being reached
between the plaintiff
and first defendant; and
3.2 the plaintiff’s
taxed or agreed costs, on a party and party scale, incurred after the
settlement being reached between
the plaintiff and the first
defendant, until date of delivery of this offer.”
[15]
The plaintiff, feeling aggrieved by the wording of the apology and
the scale of costs tendered, did not accept
the formal, open and with
prejudice tender by Netcare. More specifically, the plaintiff refused
to accept the published apology
and also seeks to pursue an order for
punitive costs against Netcare. The plaintiff, however, accepted the
quantum of damages,
both the general damages and damages in respect
of future medical expenses, and the costs incurred up to and
including the settlement
between the plaintiff and Dr Grobler.
[16]
After indicating in chambers that the open tender is not accepted,
the plaintiff as well as Professor Cheadle
were called to the witness
stand but no further questions were posed to either of them in
cross-examination. During re-examination
both witnesses
re-affirmed their testimonies in chief. By agreement between the
parties, the joint minutes of a pre-trial meeting
held between Mr
Chris Sampson (clinical psychologist) and Dr Stephen Walker
(counselling psychologist) in respect of the plaintiff
was submitted
as evidence. Both the plaintiff’s and Netcare’s cases
were closed. The matter was postponed to the following
day for
argument.
[17]
Mr Steyn argued that the open tender brings to and end Netcare’s
contesting of all but the apology
relief sought by the plaintiff.
What remains for the court to decide is the following:
17.1 Whether
the plaintiff has made out a case for the relief relating to an
apology; and
17.2 the
scale of costs to be awarded from the date of the settlement between
the plaintiff and the first defendant.
[18]
The
actio
iniuriarum
is
available where an accountable defendant has wrongfully and
intentionally (
animo
iniuriandi
)
injured the bodily integrity, dignity or reputation (
corpus,
dignitas
or
fama
)
of the plaintiff.
[1]
The
action
iniuriarum
are
utilised to claim compensation when dealing with multiple personality
interest infringements. In
Le
Roux and Others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as amici curiae)
the
majority as penned by Brand AJ, held that the same conduct cannot
give rise to two actions under the
actio
iniuriarum
and
as the plaintiff’s defamation claim in
Roux
v Dey
succeeded,
a claim for the wrongful and intentional impairment of the
plaintiff’s dignity had to fail.
[2]
[19]
In the matter at hand the plaintiff’s claim against Dr Grobler
was for damages for defamation as a
consequence of the verbal abuse,
hurling of profanities and insults at the plaintiff during the period
2005 until 2016. The claim
against Netcare is not based upon the same
conduct by Dr Grobler, but,
inter
alia
,
as a result of the failure of Netcare to deal with the complaints of
verbal abuse, the failure to create a working environment
in which
its employees were not subjected to verbal abuse, humiliating and
degrading conduct. Mr Steyn argued that Dr Grobler and
Netcare are
not joint wrongdoers. They each committed a separate and
self-standing delict against the plaintiff. If infringements
of more
than one personality interests are proved to be present, it has to be
considered as a factor when determining damages.
[3]
[20]
The right to dignity is recognised as an independent personality
right within the concept of
dignitas
.
[4]
The right to human dignity is also recognised as a fundamental right
in section 10 of the Constitution. A person’s dignity
embraces
his or her subjective feelings of dignity or self-respect. In
Khumalo
v Holomisa
[5]
the court held as follows regarding the different forms of
iniuria
from the point of view of
the impact of the Constitution:
“
The value of human
dignity in our Constitution is not only concerned with an
individual’s sense of self-worth, but constitutes
an
affirmation of the worth of human beings in our society. It
includes the intrinsic worth of human beings shared by all
people as
well as the individual reputation of each person built upon his or
her own individual achievements. The value of
human dignity in
our Constitution therefore values both the personal sense of
self-worth as well as the public’s estimation
of the worth or
value of an individual.”
[6]
[21]
On behalf of the plaintiff it is contended that the claim for a
published apology follows from the rekindling
of such remedy by the
Constitutional Court in
Le Roux v Dey
. Netcare maintains that
the publication of an apology is unjustified in the circumstances as
the plaintiff’s case revolved
exclusively on the injuries
suffered by her self-esteem and self-worth (which reflects inwardly),
and not her good name or reputation
as perceived by the general
public at large (or the reasonable observer). Netcare contends that
the guidance to be obtained in
case law all pertain to an apology
following upon a finding in defamation claims. Netcare did not
publish any injurious actions
or omissions and the plaintiff, on her
own version, presented evidence regarding the profanities hurled at
her personally by Dr
Grobler. Therefore, the publication of an
apology by Netcare is simply not borne out of the facts of this case.
[22]
Plaintiff testified that she witnessed and experienced numerous
incidents when Dr Grobler uttered the profanities
stated in the
particulars of claim, not only directed towards her but also towards
other staff members. Thereafter she handled
the complaints submitted
by the staff members regarding his conduct. She forwarded the
complaints to her senior employees at Netcare.
According to the
plaintiff, the complaints remained largely unanswered. The plaintiff
explained that several of the scrub nurses
refused to work with Dr
Grobler where after she would step in and assist him during surgeries
until the next scrub nurse was appointed
and trained to take over the
responsibility as scrub nurse.
[23]
The plaintiff testified that her sense of duty and pity for the
patients, many of them being cancer patients
who were in dire need of
urgent and timeous surgeries, caused her to bear the brunt and endure
the constant abuse, defamatory remarks
and insults by Dr Grobler.
According to the plaintiff she was informed that she and the other
personnel were not allowed to lay
any complaints against a medical
doctor. Her evidence was clear that she had been informed on numerous
occasions that Dr Grobler
was a so-called “money spinner”
for Netcare.
[24]
During her testimony the plaintiff referred to the Grievance
Procedure implemented by Netcare. The procedure
consisted of an
informal and formal procedure. The plaintiff, with reference to the
Plaintiff’s Trial Bundle – Volume
2, explained how, over
a period of approximately 10 years since 2005 many complaints were
lodged by submitting the prescribed “Incident
Management Form”
as well as letters and email messages containing serous complaints
and incidents pertaining to the conduct
of Dr Grobler.
[25]
The Plaintiff’s Trial bundle furthermore contained
an email from a patient complaining that she received
information
that she had been physically and verbally attacked by Dr Grobler
while under anaesthesia. During argument Mr Steyn
reiterated, as he
did at the commencement of the trial, that such evidence was
presented not as proof of the truth thereof, but
as proof that there
were complaints lodged with Netcare, not only by the plaintiff in her
personal capacity but also by assisting
other staff members and in
some instances by the public all pertaining to the vulgar language
regularly uttered by Dr Grobler.
After many years of service, the
plaintiff was suspended and thereafter dismissed. When the plaintiff
referred the dismissal to
the CCMA, Netcare relented and entered into
a settlement agreement with her. The testimony by the plaintiff
stands uncontested.
[26]
The evidence presented by Professor Cheadle related to what a
reasonable employer in the position of Netcare,
faced with similar
complaints and under similar conditions would have done, acting with
the necessary care, skill and diligence,
which would ordinarily be
expected from a reasonable employer. He is a seasoned and highly
qualified labour law expert. He has
52 years’ experience in
labour relations matters. He,
inter
alia
practised
as a so called “labour lawyer”, representing both trade
unions and employees and advising on employment policies
and
procedures. He later became a ministerial advisor to the Minister of
Labour and acted as the convenor of the task team that
drafted the
Labour Relations Act.
[7]
He has
subsequently provided advice and recommendations to the National
Economic Development Labour Advisory Council (NEDLAC)
regarding
labour legislation and codes of good conduct.
[27]
During his testimony in court he confirmed that he had regard to the
body of evidence contained in the Plaintiff’s
Trial Bundle and
concluded in his expert report (as contained in the Expert Trial
Bundle) that Netcare failed on various levels
in the implementation
of the precautionary measures which it had itself put in place. The
precautionary measures that a reasonable
employer in the
circumstances of Netcare would institute include:
27.1 the
development of a policy on harassment and abuse;
27.2 a
grievance procedure to allow management to address those grievances;
27.3
informing all who work or enter the premises of the policy and the
consequences of contravening it;
27.4 training
supervisors and managers on the content of the policy and grievance
procedure and how to handle grievances;
27.5
Including the policy as a term and condition of employment in the
contracts with medical practitioners who conduct
their practices on
the employer’s premises;
27.6 regular
reports on implementation of the policy to senior management; and
27.7 a
regular monitoring of the implementation of the policy by senior
management based on those reports and a regular
review of the policy.
[28]
Most employers have introduced grievance procedures in terms of which
employees are permitted to raise grievances
concerning their
treatment. Many grievance procedures include in their wide
definitions of the grievance, conduct such as verbal
abuse, insults
and humiliation. Formal grievance procedures play an important human
resource role namely: to provide employees
with a formal channel to
raise grievances without fear of victimization and secondly, it gives
management the opportunity to address
complaints and grievances. It
furthermore provides an important source of information on the state
of human relationships within
the workplace and for senior
management, who are not present at each different site of the
workplace, the state of how human relationships
are being managed.
[29]
Netcare introduced a standard policy for handling grievances which
provided for grievances being lodged with
the employee’s
immediate line manager, or if the particular grievance involved the
immediate line manager, the next senior
level of management. The
policy also envisages that executive and senior management are
responsible to review the policy and that
compliance is subject to an
assessment process in line with Netcare risk and quality assurance
processes.
[30]
Each of the numerous complaints submitted by the plaintiff or other
employees, should at least trigger an
investigation of one kind or
another even if human resources, on an informal basis, endeavour to
resolve the issue where interpersonal
conflict surfaces. This is of
particular importance where people work in highly stressful
situations (surgical theatre). Often
interpersonal conflicts can be
mediated and solved with an apology or reorganizing of the
relationship but if the issue is more
serious some action is
required. Netcare, however, in most instances failed to act under
these circumstances.
[31]
With reference to Netcare’s Admitting of Privileges Terms and
Conditions relating to the conduct of
private medical practitioners
such as Dr Grobler, who conduct an independent medical practice at
Netcares’ premises/hospitals,
Professor Cheadle testified that
admitting privileges may be revoked under certain conditions. At the
discretion of Netcare’s
General Manager or recommendation of
Netcare’s Clinical Practice Committee admitting privileges may
be revoked for any reason
including,
inter alia,
‘abusive
behaviour or harassment’. Professor Cheadle explained that in
large organisations such as Netcare, the implementation
phase of risk
management, is ensuring that the policy is implemented.
[32]
The reporting system has to be accurate and comprehensive in order
that proper monitoring can take place.
The second phase is to review
the implementation of the policy to ascertain whether the policy is
indeed effective. Taking into
consideration that a considerable
number of incidents and complaints where received by Netcare starting
in 2004 up to 2017 regarding
the abusive behaviour and vulgar
language used by Dr Grobler, Professor Cheadle testified that “…
it just seems to
me, cries out for a review at some stage”.
Professor Cheadle opined that the failure to review the
implementation of the
policy by senior management under these
circumstances would not be what a reasonable employer would do.
[33]
The clause dealing with harassment, discrimination and/or abuse of
any nature which includes violence/bullying
contained in Netcare’s
policy, provides that such conduct is not acceptable, will not be
permitted or condoned. The policy
requires that all employees are
fairly and equitably treated and that all reports of any type of
harassment, discrimination or
abuse will be treated seriously and
empathetically.
[34]
According to professor Cheadle, given the number and content of the
grievances lodged against Dr Grobler
and given Netcare’s
zero-tolerance approach to harassment, a reasonable employer would
have warned Dr Grobler about his behaviour
after the first complaint
and would have terminated its contract with him, at the very least,
after the third incident. He furthermore
opined that it is evident
from the alleged facts and the contents of the Plaintiff’s
Trial Bundle, that the precautionary
measures were not properly
implemented nor were they properly monitored, reported to or acted
upon by senior management –
all of which a reasonable employer
in the position of Netcare would have ensured. Put differently,
Professor Cheadle opined that
Netcare failed to comply with the
standard of care expected of a reasonable employer in the position of
Netcare.
[35]
The disputed issue, apart from the scale of costs issue, is whether
the plaintiff is entitled to a public
apology and payment of damages
from Netcare where she had been defamed by Dr Grobler for a period of
a decade, during which period
her employer, Netcare, failed to
protect her, and if so the ambit of such an apology.
[36]
In an article in Obiter
[8]
, the
Nelson Mandela University Law Journal, André Mukheibir, (a
professor at the Department of Private Law at the Nelson
Mandela
Metropolitan University), provided an insightful study pertaining to
the origin of the
amende
honorable
and
the possible reincarnation or revival of this remedy. She remarked as
follows in: Reincarnation or Hallucination? The revival
(or not) of
the
amende
honorable
:
“
The
amende
honorable
had
its origin in both Germanic and canon law. The action was actually a
combination of three remedies. In terms of the
declaratio
honoris,
which
had its roots in Germanic customary law, the perpetrator declared
that he had made his declaration in the heat of the moment.
The
aggrieved party could then claim that the perpetrator retracts his
defamatory words and deny the truth thereof (with the so-called
palinodia
or recantio)
and
secondly claim an admission of guilt and an apology (with a
deprecation).
The
amende
honorable
was
generally regarded as compensatory. Voet, however, regarded a
recantation as carrying with it a great enough penalty, because
the
person who had to withdraw his defamatory words was ‘handed
over to the words of penitence’, but the action was
still civil
rather than criminal. The
amende
honorable
was
generally accepted to have fallen into disuse, while the
amende
profitable
again
became known as the
actio
iniuriarum” (
references
omitted
)
[37]
According to Mukheibir the
amende
honorable
had
been relegated to single paragraphs in textbooks for more than a
century “…until it took nothing less than two
very
modern day South African phenomena such as black empowerment and the
controversial arms deal to recall this very aged European
remedy. The
irony should not be lost on us” In
Mineworkers
Investment Company (Pty) Limited v Modibane
[9]
Willis J investigated the origins of the
amende
honorable
and
explained as follows:
“
[18] Melius
De Villiers in
The
Roman and Roman-Dutch Law of Injuries
says at p 177:
‘
In the systems
of jurisprudence founded upon Roman Law a legal remedy has been
introduced which was entirely unknown to the Romans,
known as the
amende
honorable.
…
This remedy took two
forms. In the first place, there is the
palinodia,
recantatio
or
retractio
, that
is, a declaration by the person who uttered or published the
defamatory words or expressions concerning another, to the effect
that he withdraws such words or expressions as being untrue; and it
is applied when such words or expressions are in fact untrue.
In the
second place there is the
deprecatio
or apology,
which is an acknowledgement by the person who uttered or published
concerning another anything which if untrue would
be defamatory, or
who committed a real injury, that he has done wrong and a prayer that
he may be forgiven’.
”
[38]
Willis J concluded as follows: “
The
amende
honorable
was
not abrogated by disuse. Rather, it was forgotten: a little treasure
lost in a nook of our legal attic. I accordingly come to
the
conclusion that the remedy of the
amende
honorable
remains
part of our law”.
[10]
The plaintiff in
Mineworkers
Investments Company v Modibane
instituted
two defamation actions against the defendant consisting of three
claims, one was based on a letter by the defendant,
the second upon a
telephone conversation between the defendant and a manager and the
third claim arose from statements made by
the defendant to a
journalist.
[39]
In
Young v
Shaikh
[11]
the plaintiff
,
an
electronic engineer with a long association with the arms industry
who’s company was not awarded a government contract,
alleged a
conflict of interest in the part of the Shaikh brothers regarding the
contract being awarded to a French company having
regard to the fact
that the one brother had corporate relations with the French company.
During a news programme on eTV the defendant
accused the plaintiff of
having embarked upon a campaign of corruption and slander by using
the media. The plaintiff instituted
an action for damages and
the court, because of the grave nature of the defendant’s
defamation, did not regard an apology
as adequate and serving the
interests of justice.
[40]
The
remedy, an apology, was also mentioned again in
Mthembi-Mahanyelle
v Mail and Guardian Ltd
[12]
where the court found that the publication of the defamatory article
was not unlawful because it was justifiable in all the circumstances
of the matter with the result that it was not necessary to consider
the arguments regarding the
amende
honorable
or
an apology to the plaintiff to set the facts straight
[13]
.
[41]
In
NM v
Smith
[14]
the
amende
honorable
came
under discussion in matters concerning media freedom and the law of
privacy. In
Van
Greunen and Another v Govern
[15]
an
attorney sought an interdict against a disgruntled debtor, the
respondent, and an order restraining the respondent from publishing
any defamatory statements regarding and concerning the applicant. The
applicant furthermore sought an order that the respondent
publish an
unequivocal and written apology in several newspapers circulating in
the area where the applicant practised as an attorney.
The court,
with reference to
Tau
v Mashaba and Others
[16]
declined to grant the
order for the publication of an apology on application and granted
the interdict sought by the applicant.
The reason for such an order
being that an applicant is not entitled to damages in the form of an
apology on application.
[42]
In
Dikoko
v Mokhatla
[17]
the facts were as
follows: The plaintiff was the chief executive
officer of a district municipality.
The defendant was the executive
mayor of the same municipality. The Provincial Auditor General
questioned the overdue indebtedness
of the defendant who had
accumulated a long overdue excess in respect of an excessive cell
phone allowance. The Provincial Auditor
General was not satisfied
with the agreement between the defendant and the district
municipality’s council to write off the
debt in respect to the
defendant’s cell phone account.
[43]
The defendant was summoned to appear before the North West Provincial
Public Accounts Standing committee
to explain his indebtedness.
During his appearance he made defamatory remarks about the plaintiff.
The plaintiff sued him for damages.
The high court awarded damages
against the defendant. The defendant was unsuccessful at the Supreme
Court of Appeal where after
he applied for leave to appeal to the
Constitutional Court. The Constitutional Court granted the
application for leave to appeal
but eventually dismissed the appeal.
[44]
Both Mokgoro J and Sachs J recognised the fact that the
actio
iniuriarum
was not entirely satisfactory in solving the damage
caused by the defamatory remark by the defendant. It was held that
the
amende honorable
was better suited in allowing opportunity
for reconciliation between the parties and the
actio iniuriarum,
with its focus on monetary considerations, could neither repair
the plaintiff’s dignity nor effect reparation between the
parties. The Constitutional Court held as follows:
“
The notion that
the value of a person’s reputation has to be expressed in rands
in fact carries the risk of undermining the
very thing the law is
seeking to vindicate, namely the intangible, socially- constructed
and intensely meaningful good name of
the injured person. The
specific nature of the injury at issue requires a sensitive judicial
response that goes beyond the
ordinary alertness that courts should
be expected to display to encourage settlement between litigants.
As the law is currently
applied, defamation proceedings tend to
unfold in a way that exacerbates the ruptured relationship between
the parties, driving
them further apart rather than bringing them
closer together. For the one to win, the other must lose, the
scorecard being
measured in a surplus of rands for the victor.”
[18]
[45]
The cause of action against Netcare is the
actio iniuriarum
which
grants relief for an impairment of the person, dignity or reputation
of the plaintiff, which impairment is committed wrongfully
and
animo
iniuriandi
(intentionally). The claim against Netcare relates to
its failure to come to the plaintiff’s assistance and failure
to deal
with the allegations of verbal abuse and bullying.
Notwithstanding Netcare’s policy regarding bullying and
harassment, explained
by Professor Cheadle, Netcare deliberately
turned a blind eye to the complaints submitted by the plaintiff and
implored her to
assist Dr Grobler as a scrub nurse when none of the
other scrub nurses were prepared to go into the surgical theatre with
him.
Mr Steyn argued that the plaintiff alleged and proved
impairment of the relevant aspect of personality relied on during her
testimony in court.
[46]
With reference to the test for finding intention as per
Crots
v Pretorius
[19]
and
Le
Roux v Dey
[20]
Mr Steyn contended that Netcare acted intentionally (in the
form of
dolus
eventualis
)
in not enforcing steps to protect its employees in general and the
plaintiff in particular. In the absence of rebutting evidence,
the
prima facie evidence became conclusive evidence.
[47]
With reference to paragraphs 195 to 203 of
Le
Roux v Dey
,
Mr Steyn argued that even though the Constitutional Court did not
propose a reinstatement of the
amende
honorable,
the
order that was suggested should be made “…flows from
a general principled justification for it”.
[21]
Therefore the Constitutional Court re-introduced the concept of a
court enforced apology for actions based on the
actio
iniuriarum
as
a damages measure. On behalf of the plaintiff it was argued that to
find that this case against Netcare does not justify an apology
order
because it is not a defamation case, misses the point because
defamation is a species of
iniuria
.
In the heads of argument by Mr Steyn it is contended that: “The
plaintiff was humiliated and degraded, accordingly she demands,
and
it is only right that she be apologised to in public”.
[48]
The plaintiff’s wish and claim for an apology from Dr Grobler,
prior to his death, would have included
a recantation or a formal
withdrawal of the defamatory words and remarks to repair her injured
honour and the acknowledgement by
him that he had done wrong. Having
regard to the evidence and the legal principles referred to in the
case law, this would have
been justified.
[49]
In Chapter 1 of
Wille’s
Principles of South African Law
[22]
the core characteristics of law, its distinctiveness as a mode of
social organization are defined as: “Law serves diverse
functions in society, but it’s hallmark is the stipulation of
rights and duties, which, if uncertain or not complied with,
are
determined in court and, if necessary, enforced on the authority of
court orders. In doing so, law provide such reasons
for acting
(or refraining from acting) in prescribed ways and holds people
responsible, to each other as well as to society at
large, when they
fail to comply with such reasons.” The concept of justice
is concerned with “giving persons
their due”.
[23]
[50]
The
amende
honorable
can
be traced back to medieval canon law with its basis as Christian
forgiveness.
[24]
The
remedy was applicable in slandering or defamation cases. An apology
as always weighed heavily in determining the quantum
of damages in
defamation cases. The
amende
honorable
was
not a remedy in matters pertaining to the infringement of a persons’
dignity by insulting words, belittling or contemptuous
behaviour. The
specific nature of the injury, being “the intangible,
socially-connected and intensely meaningful good name
of the injured
person”
[25]
in
defamation matters, justified not only an award or the provision of
solatium
for (sentimental)
damages, but an apology by the defendant for defamatory remarks which
could do more to restore the plaintiff’s
dignity than a
monetary award.
[51]
The
actio
iniuriarum
,
the remedy for defamation also places strain on the right to freedom
of expression, because potential defendants could be intimidated
by
large damages awards from exercising this right.
[26]
As is evident from the case law referred to, the
amende
honorable
has
been applied in matters to give to the defendant an opportunity to
make an appropriate public apology in lieu of paying damages
and that
the victim of defamation have his or her damaged reputation restored
by the remedy of a public apology.
[52]
Having regard to the fact that the
actio
iniuriarum
,
in our common law has separated the causes of action for claims for
injuries to reputation (fama) and dignitas and taking into
consideration that our Constitution also provide a framework for the
protection of personality rights, there is no sharp line that
can be
drawn between these injuries to personality rights as they often
overlap in the typical wrongs which form the object of
the
actio
iniuriarum
.
[27]
Although different manifestations of
iniuria
has over time been
applied, some of which has become obsolete, and the application
of the
actio
iniuriarum
has
adapted in accordance with the changing of human and social
values, I am not convinced that, taking into consideration
the facts
of the matter at hand, the plaintiff has made out a case for
the expansion of the remedy under the
actio
iniuriarum
in
matters not related to defamation, to include a published apology.
[53]
Such an extension of the
amende honorable
would inevitably
have the result that plaintiffs in matters such as malicious and
wrongful legal proceedings and arrest, insult,
invading of privacy
and wrongful assault will have recourse to a published apology by for
example, the Minister of Police or the
National Prosecuting
Authority. Clearly this was never intended by the reintroduction or
revival of the
amende honourable.
[54]
The plaintiff accepted the amount tendered by Netcare as to the
quantum of damages, both general damages and the damages
in respect
of future medical expenses. Mr Bezuidenhout, with reference to
previous and similar findings on the quantification of
damages,
argued that the amount tendered and accepted by the plaintiff, namely
R300 000.00 emphasise that despite publication
of an apology by
Netcare, the plaintiff’s vindication of her rights far exceeds
that which she would normally have been entitled
to.
[55]
As to costs, the plaintiff seeks an order for costs on the attorney
and own client scale, alternatively, on the attorney
and client
scale.
The
purpose of an award of costs to a successful litigant is to indemnify
him for the expense to which he has been put through having
been
unjustly compelled to initiate or defend litigation, as the case may
be
[28]
. The ordinary practice
is, of course, that costs follow the event but this principle is
subject to the general rule that costs,
unless expressly otherwise
enacted, are in the discretion of the court
[29]
.
[56]
A court is entitled to award punitive costs against a party as a sign
of the court’s displeasure with such party’s
conduct. I
agree with the argument on behalf of the plaintiff that Netcare
evidently allowed its employees to be abused by Dr Grobler
for its
own financial interests. Furthermore, Netcare was acquainted with Dr
Grobler’s disgusting behaviour even prior to
the appointment of
the plaintiff as the unit manager.
[57]
Mr Bezuidenhout argued that Netcare not only delivered a formal
tender for a personal apology, but also made
numerous further tenders
to the plaintiff, all of which were simply rebuffed with a response
of seeking a complete capitulation
by Netcare. On 31 January 2024,
before the commencement of the trial, Netcare formally tendered an
apology to the plaintiff. This
tender was made in accordance with
Rule 34(1) & (5) and expressly contained the reservation that
Netcare shall disclose this
offer to the court at the appropriate
time and if indicated, after judgment for purposes of consideration
or reconsideration of
any costs order made or to be made. Mr
Bezuidenhout, however revealed the tender made during January 2024
during his arguments
pertaining to costs.
[58]
The content of the apology has been included in the heads of argument
submitted on behalf of Netcare. The
plaintiff rejected this tender
and insisted that an apology be published. In terms of Rule 34(12)
and after a court has given judgment
on the question of costs in
ignorance of the offer or tender, the question of costs shall be
considered afresh in the light of
the offer or tender, provided that
nothing provided in the subrule shall affect the court’s
discretion as to an award of
costs.
[59]
Netcare’s contention in respect of costs is thus: the
plaintiff’s request for punitive costs
is not borne out of the
facts of the case but is premised upon a punitive intent pursued by
her against Netcare. In this regard
attorney and client costs do not
qualify as delictual damages and therefore not a form of compensation
for damages suffered. Furthermore,
the award of a punitive costs
order is exceptional.
[60]
On behalf of Netcare it is therefore argued that the costs incurred
for argument on the 4
th
of June 2024 occasioned by the
plaintiff’s refusal to accept the published apology as well as
costs tendered, be paid by
the plaintiff on a party and party scale.
[61]
I am of the view that, having regard to the fact that the plaintiff
submitted numerous complaints, without
any appropriate response from
Netcare, she is entitled to a punitive cost order against Netcare.
The situation continued for a
period spanning a decade. Thereafter
she had to commence with litigation against Dr Grobler and Netcare
for almost 8 years, which
litigation included interlocutory
applications and an exception. Only after presenting evidence for 7
days, did Netcare present
an open tender which included not only
payment of damages but also an apology which resulted in all but the
apology and a portion
of the costs to become settled.
[62]
The tender puts an end to the quantum of damages. This
was accepted by the Plaintiff on 3 June 2024, the day on
which the
tender was made. Netcare has published an apology in accordance with
the tender in the Volksbald, from what I was informed
during
argument, such publication to be effected most probably on the 5
th
of June 2024. Even though I am of the view that the relief sought in
respect of a published apology is not a competent remedy for
the
specific species of personality infringement in the matter at hand,
the plaintiff has evidently been victorious.
[63]
The only issue is therefore the scale of costs to be
awarded from the date of the settlement between the plaintiff
and the
claim against the first defendant, to be awarded against Netcare. I
take into consideration that the apology that Netcare
made in their
tender was not accepted by the plaintiff on the basis that the exact
words did not comply to her understanding of
a statement of regret
for having done wrong or the hurt caused by Netcare’s failure
to act. I agree with the plaintiff’s
perception that the
expression:
“
We
apologise sincerely
that
you felt that Netcare did not sufficiently support you i
n
the execution of your duties while being subjected to the disrespect
and hurtful actions at the hands of an independent fellow
healthcare
practitioner”, do not, in its plain and ordinary meaning,
convey a sincere regret and remorseful apology. What
is actually
conveyed by this particular sentence is that Netcare is sorry to
learn about the way the applicant perceived and felt
about their
inaction and failure to support her during in the execution of her
work. It would have been different if the apology
read as follows:
“We apologise sincerely that Netcare did not sufficiently
support you in the execution of your duties…”.
(My
underlining)
[64]
An offer of settlement must be made timeously and should be responded
to promptly as it is usually made with
a view of curtailing the
possible escalation of costs. The defendant should not decide only on
the morning of the trial to make
an offer and so hope to avoid
liability for costs.
[30]
Accordingly, I am
satisfied that in this particular case a judicial exercise of a
discretion requires me to not only declare
the plaintiff’s two
expert witnesses as necessary witnesses for purposes of taxation but
to make an order that Netcare pay
the plaintiff’s costs on an
attorney and clients scale. I am not convinced that, having regard
that no order is made in respect
of the apology as sought by the
Plaintiff, that costs on an attorney and own client scale is
appropriate in this matter.
[65]
The following order is made:
1.
The second defendant shall pay to the plaintiff the sum of
R300 000.00 (three hundred
thousand rand) towards the
plaintiff’s claim for damages and past and future medical
expenses.
2.
The second defendant shall pay 50% of the plaintiff’s taxed or
agreed costs, on a party
and party scale, up to date of the
settlement being reached between the plaintiff and first defendant.
3.
The second defendant shall pay to the plaintiff the taxed or agreed
costs on an attorney and client
scale incurred after the settlement
being reached between the plaintiff and the first defendant, until
and including the arguments
heard on 4 June 2024.
4.
The expert witnesses, Dr Stephen Walker and Professor Halton Cheadle
are declared necessary
witnesses for purposes of taxation.
I
VAN RHYN
JUDGE
OF THE HIGH COURT,
FREE
STATE DIVISION, BLOEMFONTEIN
On
behalf of the Plaintif:
ADV.
J W STEYN
Instructed
by:
KRAMER
WEIHMANN INC
BLOEMFONTEIN
On
behalf of the Respondent:
ADV.
W J BEZUIDENHOUT
Instructed
by:
WESSELS
& SMITH INC
BLOEMFONTEIN
[1]
Le Roux and Others v Dey
2011 (3) SA 274
(CC) at [141].
[2]
Le Roux v Dey (supra) at [139].
[3]
NM v Smith
[2007] ZACC 6
;
2007 (5) SA 250
(CC) paragraphs 71 to 82.
[4]
Jackson v NICRO 1976 (3) SA 1 (A).
[5]
2002 (5) SA 401 (CC).
[6]
Khumalo v Holomisa (supra) at paragraph 27. (footnotes omitted).
[7]
Act 66 of 1995.
[8]
André Mukheibir
(2022) Obiter, 25(2)
;
https//doi.org/10.17159/obiter.v25i2.14.865.
[9]
2002 (6) SA 512 (W).
[10]
Mineworkers Investments (supra) at page 23 -24.
[11]
2004 (3) SA 46 (C).
[12]
2004 (6) SA 329 (SCA).
[13]
Mthembi-Mahanyelle v Mail and Guardian (supra) at [75]-[76].
[14]
[2005] 3 All SA 457 (W).
[15]
(5395/2022)
[2023] ZAFSHC 104
(6 April 2023).
[16]
2020 (5) SA 135
(SCA) at [20] and [28].
[17]
2006 (6) SA 235 (CC).
[18]
At paragraph 111.
[19]
2010 (6) SA 512
(SCA) at [11].
[20]
At paragraph 129.
[21]
At [202].
[22]
Juta (Ninth Edition), 2007 at p3.
[23]
Wille (supra) at p 15.
[24]
Zimmerman; The Law of Obligations –Roman Foundations of the
Civilian Tradition (1990) at 1072.
[25]
Dikoko v Mokhatla at par 111.
[26]
National Media Ltd v Bogoshi
1998 (4) SA 1196
(SCA); Mineworkers
Investments Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W).
[27]
Wille’s Prinicples of South African Law p 1166.
[28]
Erasmus v Grunow
1980 (2) SA 793
(O) at 798 B-C.
[29]
Union
Government v Heiberg
1919 AD 477
at 484.
[30]
See Omega Africa Plastics (Pty) Ltd v Swisstool Manufacturing Co
(Pty) Ltd
1978 (4) SA 675
(A) at 678H.