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2024
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[2024] ZAECQBHC 48
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Minister of Safety and Security v A.K (3429/2013) [2024] ZAECQBHC 48; 2024 (2) SACR 507 (ECGq) (13 August 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, GQEBERHA)
OF INTEREST
Case no: 3429/2013
In the matter between:
MINISTER OF SAFETY AND
SECURITY
Applicant/Defendant
and
AK
Respondent/Plaintiff
JUDGMENT
Govindjee J
[1]
Is a plaintiff entitled to have her own legal
representative present during psychological and psychiatric
assessments required by
the defendant in terms of Uniform Rule 36?
[2]
The
plaintiff was abducted by an unknown assailant in Gqeberha during
December 2010, held captive, raped and abandoned. She instituted
action against the defendant (the Minister) for psychological trauma
and psychiatric injury suffered due to the way the police
searched
for her and investigated the incident. A majority of the
Constitutional Court upheld the decision of the trial court to
hold
the defendant liable for 40% of the damages to be proved.
[1]
[3]
As
part of the proceedings to establish the quantum of the claim, the
Minister served Rule 36(2) notices on the plaintiff requiring
her to
undergo psychological and psychiatric assessments respectively with
his medico-legal experts, Dr Olivier and Dr Colin.
[2]
Rule 36(1) provides as follows:
‘
A
party to proceedings, in which damages or compensation in respect of
alleged bodily harm is claimed, shall have the right to require
any
party claiming such damage or compensation, whose state of health is
relevant for the determination thereof, to submit to a
medical
examination.’
[4]
The
Minister does not dispute that a plaintiff is entitled to have her
legal representative present at medical assessments for physical
injury. That concession is well-made in the light of the decision in
Goldberg
v Union and SWA Insurance Co Ltd
[3]
(
Goldberg
).
The dispute turns on whether the same entitlement prevails at
psychological and psychiatric assessments, which the Minister
refutes.
[5]
In
Goldberg
,
Howie J held that a claimant was entitled to be legally represented
at a medical examination held in terms of Rule 36. In coming
to that
conclusion, the learned judge emphasised the plaintiff’s right
to ‘bodily privacy’ coupled with the right
to decline to
divulge their evidence to anyone but their legal advisers and the
court hearing the action.
[4]
Unfair questioning on aspects of the history, injuries and symptoms
of the ailment may result in prejudice to the plaintiff, who
would be
unable to avoid the questions and whose answers could be used against
them at trial. The problem was framed in this way:
[5]
‘…
medical
practitioners can generally be relied on to perform an examination
under this Rule objectively…However, there can
obviously be
unfortunate deviations from that general standard whether through
ignorance, inexperience or otherwise. In addition
it is distinctly
possible for honest and objective questioning unintentionally to
develop from examination into cross-examination
whilst in zealous
pursuit of an appealing point. Finally, unless controlled within the
appropriate spheres of enquiry, the questioning
may stray on to the
circumstances of the accident itself or economic considerations not
germane to the medical issues. Should the
questioning be otherwise
than objective or transgress the limits of what is proper or relevant
it is not difficult to imagine an
unrepresented claimant who is, for
example, an ignorant peasant or a brain-injury case making
unwarranted and ostensibly damaging
concessions which, had they been
made in the course of the trial, could have been satisfactorily
explained away or at least cast
in proper perspective.’
[6]
The
court concluded that the drafter of the rule must have been alive to
the protection enjoyed by the claimant in court proceedings,
including legal representation during questioning. Those rights
should apply, as far as possible, during extra-curial questioning.
Bearing in mind that a legal representative would already have been
engaged by the time the notice was issued, it would have been
expected of the drafter to have expressly excluded legal
representation during medical assessments if that had been the
intention.
[6]
In fact, the
intention was to provide for the possible attendance of the
claimant’s own medical adviser as an ‘extra
safeguard’
for their interests, not as a substitute for legal representation ‘to
control the questioning or to advise
the claimant on [their] legal
rights’.
[7]
[7]
Why does the Minister object to the presence of
the plaintiff’s legal representative at the interviews and
evaluations to
be conducted by his experts? The answer lies in the
views of the Minister’s experts themselves. Dr Colin, a
registered psychiatrist,
considered the presence of any third party
to be unnecessary, undesirable, and risky due to the possible impact
on the validity
of the outcome of the examination. Dr Colin noted
that the presence of a third-party could influence an expert’s
observations
by creating an artificial sense of safety. He relied on
the published views of Prof Robert Simon that caution against the
presence
of third parties during examination:
‘
The
presence of a third party can have a profound influence on the
outcome of the examination as it might have a psychological influence
on the patient, influencing the observations made by the expert
witness, and ultimately not be of assistance to the Court.
[8]
To the extent that a third party is permitted to
attend, Dr Colin maintained that they should do so without any
interference whatsoever,
so as not to influence the outcome of the
examination. Dr Olivier, a registered clinical-; counselling-; and
neuropsychologist,
was of a similar opinion, and drew a distinction
between the presence of a legal representative at a forensic medical
examination
for physical injuries, on the one hand, and a forensic
psychological and psychiatric evaluation, on the other. Dr Olivier
concluded
as follows:
‘
It
is clear … that neither the Professional Board of Psychology
of the Health Professions Council of South Africa nor the
American
Psychological Association, is in favour of third-party observers in
psychological testing and assessment as it contaminates
and skews the
assessment, does not protect the integrity and security of
psychometric tests and procedures and will not be of assistance
to
the Court.’
[9]
By time of argument, the Minister’s stance
was to concede that Ms Kawa was, in general, entitled to have her
legal representative
present during psychological and psychiatric
assessments. On the Minister’s approach, however, this right
was to be ‘balanced’
against the state’s
constitutional entitlements. The only real remaining concern was the
sanctity of the outcome of the required
assessments, for the
consequent reports and evidence of the experts to be of assistance to
the court.
[10]
Ms
Lewis
,
who presented the argument on behalf of the plaintiff, offered a
compelling series of arguments each culminating in the conclusion
that the application ought to be dismissed. This included reliance on
the plaintiff’s constitutional rights to equality,
human
dignity, and psychological integrity
[8]
as well as the common-law right to informed consent. While it is
tempting to venture into these dimensions of the dispute immediately,
particularly given that
Goldberg
was
decided pre-Constitution, a more straightforward approach is merited.
[11]
The outcome turns on the proper approach to be
given to Uniform Rule 36(1). At the time of argument, the substantive
relief sought
by the Minister was for the plaintiff to attend the
interviews with Drs Olivier and Colin in private, without the
presence of a
legal representative. In the alternative, the Minister
offered only to record the interview by way of ‘live audio and
video’.
To succeed with the application, it was for the
Minister to convince the court that the proper interpretation of
Uniform Rule 36(1)
excludes the presence of the plaintiff’s
legal representative during the necessary forensic interviews and
evaluations, with
or without the recording of the interview. The
difficulty with that interpretation is that it runs headfirst into
the decision
in
Goldberg
.
[12]
The
issue to be determined in that matter was, in essence, the same as in
the present circumstances. The defendant issued a s 36(2)
notice
requiring the plaintiff to subject herself to a medical examination
by a medical specialist of its choice. Goldberg was
prepared to be
examined provided that her attorney could be present at the
examination. The defendant launched a similar application,
which was
opposed, to resolve the impasse. Following a careful analysis, the
court concluded that ‘a claimant is entitled
to be legally
represented at a medical examination held in terms of Rule 36’.
[9]
That decision remains the leading authority on point.
[13]
The
result is that this court bound by the decision in
Goldberg
,
unless of the view that it is clearly wrong. In my view the
interpretation of the rule and its consequence, as articulated in
Goldberg
,
was, with respect, correct. To seek to distinguish Goldberg on the
facts is artificial given its
ratio
.
The judgment was premised on problematic dimensions of questioning
during medical examinations absent the presence of a legal
representative.
[10]
[14]
That
aside, the appropriateness of the approach adopted has been
emphasised by the constitutional dispensation, with various rights
referenced in
Goldberg
now
finding expression in sections of the Constitution. It is apposite to
quote from the minority judgment of Khampepe J in
AB
and another v Minister of Social Development
as
one illustration in support of this conclusion:
[11]
‘
[67]
The drafting history of section 12(2) supports this view … The
change in language illustrates a shift in emphasis away
from a
sanctuary approach that protects a person’s corpus, towards one
which acknowledges the multifaceted lives people may
choose to live
by providing for a more expansive range of bodily and psychological
protections. This adjustment in focus coheres
with the lessons of our
past. The defilements of integrity that characterised our
pre-constitutional era extended beyond violations
of personal
security. The legal structure that marked and marred the apartheid
era was one of disregard and disrespect. The Constitution
thus
enjoins us to develop a new understanding of “freedom and
security of the person” that demonstrates respect and
attentiveness to the decisions of others. The inclusion of section
12(2) is one facet of this new approach.
[68] That
historically-grounded shift builds on the recognition in our common
law – chiefly in the law of delict – that
a person’s
psychological integrity, independent of their body, can be harmed in
numerous ways by the actions of others …’
[15]
On the approach adopted, the conflicting opinion
evidence presented by both parties adds little to the resolution of
the dispute.
For the sake of completeness, it may be added that much
of the opinion evidence submitted was premised on hypothetical
scenarios
as to what might occur should a legal representative be
permitted to attend the examinations. I am unpersuaded that the
standards
and ethical rules are properly interpreted to exclude the
presence of a legal representative during forensic psychological and
psychiatric testing. To the extent that the intention behind these
documents is to do so, that objective must be subordinated to
protect
the established legal entitlement of the person undergoing
assessment.
[16]
That is not to suggest that over-zealous
interference on the part of a legal representative might not, in
exceptional circumstances,
result in the process being compromised.
Bearing in mind that the legal representative would lack the
specialist knowledge of either
the psychologist or psychiatrist, one
would expect that a prudent legal practitioner would limit any
interruptions to the process
to instances where it is clearly
necessary to do so. A fair approach would balance the protection of
the rights of the claimant
while noting the concern that excessive
intervention might adversely affect the extent of assistance that an
expert might eventually
be able to offer the court.
[17]
To that end, the Minister applied to amend his
Notice of Motion to include further alternative relief, in the form
of adequate safeguards
for both the plaintiff and the examining
evaluators including video and audio recording. This occurred after
oral argument and
the court has benefited from additional written
submissions from both sets of counsel on the point. Of assistance is
the plaintiff’s
agreement to the further alternative relief
sought, subject to various details pertaining to protection of her
privacy, which I
intend to incorporate in the order.
[18]
Penultimately,
it is perhaps useful to address the suggestion that the plaintiff’s
rights must be balanced with that of the
state. This notion has been
determined by the apex court in the context of ‘everyone’s’
right to just administrative
action. That right was held to be one
enjoyed only by private persons, with the state being the bearer of
the corresponding obligations
under the section.
[12]
Leaving aside issues of horizontal application of the Bill of Rights,
a similar approach must be adopted in respect of the rights
implicated in the present instance. It is for the state to respect,
protect, promote and fulfil such rights.
[13]
[19]
Moreover,
and absent a law of general application, seeking to limit the
plaintiff’s rights with reference to the kinds of
considerations listed in section 36(1) of the Constitution is a
non-starter.
[14]
Instead, the
preferred approach is to broaden the content of the constitutional
rights implicated, notably the rights to bodily
and psychological
integrity and dignity. This is achieved by conceptualising these
inter-related rights to include legal representation
during Uniform
Rule 36 examinations, as part of the content of the rights
themselves. Doing so is likely to enhance the nature
of the
participation of a person being examined, courtesy of the presence of
their chosen legal practitioner, and provide fortification
from undue
stress or shock.
[15]
[20]
All
that remains is to determine whether the plaintiff is justified in
seeking a punitive costs order. This requires consideration
of what
would be just and equitable in the circumstances of the matter.
[16]
The application was launched on an urgent basis. Ultimately it was
unfounded and the common-sense approach which has prevailed
ought to
have been adopted at an earlier stage to obviate the proceedings. The
Minister’s approach, although backed by the
views of his
experts, was unjustifiably contrary to the sentiments expressed in
Goldberg
and
unappreciative of basic constitutional considerations. It has
resulted in the plaintiff incurring unnecessary costs, also for
purposes of responding to the medical evidence presented by the
state.
[21]
That
being the case, the argument to be considered is whether it would be
unfair to expect the plaintiff to bear any of the costs
occasioned by
the litigation.
[17]
The
application was not launched fraudulently, dishonestly or in bad
faith. Nor can it be said to amount to an abuse of the process
of
court.
[18]
I am also mindful
of the likely negative effects of courts granting punitive cost
orders too readily. This would ultimately deter
parties, including
the state, from seeking to ventilate their disputes in court.
[22]
A punitive costs order should also not result
merely because a party erred in its approach to the law. While
hindsight has clarified
the correct position, the case provided the
state with the opportunity to test the
Goldberg
rationale in a different context, which
it was entitled to do. The outcome also provides useful pointers
towards the kinds of safeguards
that would be appropriate to protect
the plaintiff and the assessing specialists, as well as to ensure the
veracity of the interview
process and its results. While the state
may be held to an exacting standard in respect of its duty to
respect, protect, promote,
and fulfil constitutional rights, its
conduct in defending a legal action must be assessed fairly, even in
cases where its position
was erroneous.
[23]
A just and fair outcome in the circumstances of
this matter is to order the state to pay the plaintiff’s costs,
including
the costs of two counsel, where employed, on a party and
party scale. This order is to include the costs of the medical
experts
engaged by the plaintiff to support the opposition to the
application, and the costs of the further written submissions
requested
by the court.
Order
[24]
The following order is issued.
1.
The applicant’s failure to comply with the
Rules of Court as regards forms and service is condoned.
2.
The application to amend the notice of motion is
granted.
3.
It is declared that the legal representative of
the respondent is entitled to be present and seated behind her during
the interviews
with Drs Olivier and Colin.
4.
The interviews may be simultaneously video- and
audio recorded, subject to the following:
3.1 The applicant is to
pay the costs of the video- and audio recording;
3.2 The respondent must
be granted unrestricted access to the entire video- and audio
recording;
3.3 The recording and any
information contained therein must be kept strictly confidential and
may not be distributed in any form
to any person other than the
parties’ legal representatives, or used for any purpose other
than the present litigation;
3.4 The respondent’s
legal representative is to be advised of all copies made of the
recording as well as the identity of
any person to whom the recording
is made available;
3.5 The audio and video
recording and any copies thereof must be destroyed immediately after
the conclusion of the present litigation.
This is to be confirmed by
the legal representative of the applicant in writing.
5.
The applicant is to pay the respondent’s
costs, including the costs of two counsel, where so employed, on
Scale C.
6.
The costs to be taxed are to include the costs of
the medical experts engaged by the respondent in opposing the
application as well
as the costs occasioned by the subsequent written
submissions prepared at the request of the court.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard:
07
August 2024
Delivered:
13
August 2024
Appearances:
For
the Applicant:
Adv
CJ Mouton SC & Adv M Wolmarans
Chambers,
Gqeberha
Instructed
by:
The
State Attorney
Attorneys
for the Applicants/Defendants
29
Western Road
Central
Gqeberha
Email:
monaidoo@justice.gov.za
For
the Respondent:
Adv
TJ Bruinders SC & Adv N Lewis
Chambers,
Johannesburg
Instructed
by:
Norton
Rose Fulbright
Attorneys
for the Respondent/Plaintiff
15
Alice Lane
Sandton
C/o:
Boqwana
Burns Inc.
Boqwana
House
23
4
th
Avenue
Newton
Park
Gqeberha
Email:irvine@boqwanaburns.com
[1]
AK
v Minister of Police
[2022]
ZACC 14.
[2]
Rule
36(2)(
b
)(i)
provides that the notice contemplated shall state that the party
being examined may have his or her own medical adviser present
at
the examination. No mention is made of an entitlement to the
presence of a legal representative.
[3]
Goldberg
v Union and SWA Insurance Co Ltd
1980
(1) SA 160
(E) (
Goldberg
).
[4]
As
noted in
Goldberg
,
in most cases wherein the quantum of damages is disputed, the
claimant is required to testify so that the Rule, in effect resulted
not only in physical examination, ‘… but also to
questioning about one or more of the very medical issues which
will,
by way of testimony including his own, be canvassed at trial.’
Goldberg
above
n 3 at 164E–G.
[5]
Goldberg
above
n 3 at 164H–165A. On the general expectation in respect of
medical examinations, see
Mgudlwa
v AA Mutual Insurance Association Ltd
1967
(4) SA 721
(E) at 723D–E.
[6]
Goldberg
above n 3 at 165C–E
[7]
Goldberg
above n 3 at 165E–G.
[8]
Sections
9(3), 10 and 12(2) of the Constitution of the Republic of South
Africa, 1996.
[9]
Goldberg
above
n 3 at 164C.
[10]
Goldberg
above
n 3 at 164F–165A.
[11]
AB
and another v Minister of Social Development
[2016]
ZACC 43
paras 67–68.
[12]
State
Information Technology Agency SOC Limited v Gijima Holdings (Pty)
Limited
[2017]
ZACC 40
para 29.
[13]
S
7(2) of the Constitution.
[14]
S
36(1) of the Constitution.
[15]
See M Bishop and S Woolman above n 15 at 40–77. ‘
Psychological
integrity as a self-standing right necessarily goes beyond the
protection afforded by ‘bodily integrity’
and ‘provides
fortification from undue stress or shock’:
M
Bishop and S Woolman at 40–78.
[16]
De
Lacy v SA Post Office
2011
(9) BCLR 905
(CC);
[2011] ZACC 17
paras 116–117 and 123.
[17]
President
of the Republic of South Africa and Others v Quagliani and Two
Similar Cases
2009
(2) SA 466
(CC);
2009 (4) BCLR 345
;
[2009] ZACC 1
para 11.
[18]
Public
Protector v SARB
2019
(6) SA 253
para 223.