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IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

CASE NUMBER: 02/24948

REPORTABLE

In the matter between:

N M First Plaintiff

S M Second Plaintiff

L H Third Plaintiff

and

CHARLENE SMITH First Defendant

PATRICIA DE LILLE Second Defendant

NEW AFRICA BOOKS (PTY) LTD Third Defendant

______________________________________________________________

JUDGMENT

______________________________________________________________

SCHWARTZMAN J:

INTRODUCTION

1. In 1999 the three Plaintiffs, whose names I have ordered not to be disclosed, were diagnosed as being HIV positive. In the second half of 1999 they agreed to go on an anti-retroviral drug trial that ended in 2001. This is an action instituted in December 2002 in which each of the Plaintiffs is seeking a joint and several judgment against the three Defendants for payment of damages of R200 000 and related relief arising out of an alleged breach of their rights to privacy, dignity, psychological integrity and mental and intellectual well being. The Plaintiffs cause of action is based on a biography of the Second Defendant, written by the First Defendant and published by the Third Defendant in March 2002, in which it is alleged that without their consent, the Defendants invaded their right to privacy by disclosing in the book their names and HIV status. The Plaintiffs response, on being told of the publication of the book, was to approach the Pretoria High Court on 25 April 2002 for an urgent interdict against the Third Defendant that would stop the distribution of the book. Shortly thereafter, they joined the First and Second Defendant as parties to this application. In their answering affidavit, the Defendants admitted the publication but denied invading the Plaintiffs privacy. In essence it was alleged that the facts published were not private but public facts. No replying affidavit was filed. No reference to oral evidence that could have speedily resolved the issue was sought. Instead, the Plaintiffs withdrew their application. It re-emerged in this court in the form of this action in which substantially similar relief is sought. What is however added by each of the Plaintiffs is a claim that the three Defendants jointly and severally pay each of them R200 000 damages. More than three years after the urgent application was brought, I heard this matter.

THE EVIDENCE

2. During the course of what turned out to be an eight day trial, there were a number of objections by the Defendants Counsel as to the relevance of some of the evidence being led. On Plaintiffs Counsel’s assurance that the evidence was material and relevant, I allowed the evidence. On reviewing the evidence as a whole, the objections were, in the main, well taken. However, and because of the considerable public interest in this matter and the media coverage given to the trial, I will deal as briefly as possible with all the evidence.

3. In the year 2000, the three Plaintiffs were living in an informal settlement that is part of Katlehong, which is in turn a suburb of Tshwane. Their shared bond was that by 1999 each of them had been diagnosed as being HIV positive. Later in this judgment I will deal more fully with their personal circumstances. Each of them had separately found their way to the Kalefong Hospital, a state run hospital that is also used as a teaching hospital by the University of Pretoria. At the hospital, they joined the ever growing number of poor people who cannot afford anti-retroviral drugs and who receive treatment on an ad hoc basis for their HIV related infections. As a means of coping with what had befallen them, the Plaintiffs joined a support group that met regularly and where they were counselled by a social worker. HIV patients who came to the hospital were treated at an Immunology Clinic headed by Doctor Mariette Botes, who has been involved in HIV treatment since 1994. Dr Botes was also a member of the medical faculty of the University of Pretoria.

4. In August 1999 Dr Botes was responsible for recruiting volunteers to participate in a clinical trial directed at determining the efficacy of a cocktail of drugs that could decrease a patient’s HIV level. The drugs involved in the test had the approval of the American Food and Drugs Administration and the South African Medicines Control Council. Volunteers had to measure up to certain health requirements. They were also required to sign what is referred to as an informed consent, in which the patient acknowledged that he or she had been informed of the nature, conduct, benefits, side effects and risks of the clinical trial. Medically, each of the Plaintiffs qualified for participation in the trial. Each of them volunteered to join the trial. Each of them signed an informed consent – a seven page document setting out the benefits that may result, side effects that may be suffered and details of procedures to be followed during a trial that is to last for 48 weeks, whereafter a number of “post therapy options” are spelled out. According to Dr Botes, the monthly cost of the medication to be taken by a trialist was R4 000. There were about 40 trialists at the Kalefong Hospital. None of the trialists could afford the cost. At the time, a poor persons participation in a trial offered the only prospect of being placed on anti-retrovirals that could control the person’s HIV status and prolong his or her life.

1. In 1999, Johan Viljoen, who had been an Anglican priest, took up employment with the Catholic Bishops Conference. He has lived with AIDS since 1994. He was employed in an income generating programme for persons with HIV / AIDS. He was attached to a centre that formed part of the Kalefong hospital. In the course of his work, Viljoen came to know members of the support group and, in particular, the three Plaintiffs, who he saw regularly over the period November 1999 to March 2000. Viljoen came to know of the clinical trial. Some of the participants were members of the support group.

2. By about March 2000, Viljoen, who had no medical qualifications, had reason to believe that five people on the trial had died of liver toxicity. He had also heard complaints that some participants were feeling sick as a result of taking the drugs and that pressure was being put on them not to go off the trial. Others were concerned at the fact that the consent form they had signed had not been properly explained to them. He also heard complaints about the absence of adequate financial compensation for volunteering to go on the trial. Viljoen was told that these people wanted their claims investigated.

3. Whatever his sources of information, Viljoen was sufficiently concerned to look for help. He turned to the Second Defendant, who was known to be involved in and concerned with persons living with HIV / AIDS. Through a friend, he contacted the Second Defendant, a Pan African Congress Member of Parliament, who was in Cape Town attending Parliament. The Second Defendant agreed to fly to Johannesburg and then go to the hospital to discuss the issues with Viljoen and members of the support group. .

4. The Second Plaintiff is a high profile and well known politician. Her Parliamentary career started in 1994. She is still a Member of Parliament and now heads her own party. The Second Defendant’s longstanding and ongoing involvement in the HIV / AIDS problem goes back to 1989 and is not an issue in this trial. Her commitment to helping people living with HIV / AIDS has been recognised nationally and internationally. Her practical commitment to this cause is inter alia demonstrated by the substantial monthly donation she makes to the Treatment Campaign for Anti-retrovirals and her sponsoring of a child living with HIV / AIDS. Over the years she has been highly critical of the inadequate support and assistance given by the State to people with HIV / AIDS – people who in the main cannot afford the cost of anti-retrovirals.

5. Viljoen arranged for the Second Defendant to meet members of the support group. This meeting took place at the centre on 28 March 2000. The Second Plaintiff’s recollection of the meeting that she says lasted for approximately two hours is that members of the support group complained about only being paid a travelling allowance of R50 a visit for participating in the trial, that the eight or nine page consent form had not been properly explained and that Dr Botes was unsympathetic to complaints about the side effects of the drugs, which she attributed to their disease and not the drug.

6. There is a dispute as to the language used at this meeting. There is also a dispute as to whether the Plaintiffs were at this meeting. The three Plaintiffs say they were not at this meeting. In chief, Viljoen said that all three were at the meeting. In cross-examination, he said that five years after the event it is possible but unlikely that he is mistaken that they were not there. The Second Defendant was certain that the Second Plaintiff was at this meeting. Five years on, she could not remember if the First and Third Plaintiffs were present. Nothing turns on this dispute of fact.

7. At the time of the first meeting, the Second Defendant saw the consent forms that the trialists had signed. The initial form was drafted on 8 April 1999. It warns trialists of side effects that the medication can cause. These include headaches, nausea, loose stools, skin rash, vomiting, dizziness and feelings of tiredness or weakness. There is also a warning of as yet unknown side effects that would be monitored. An addendum prepared on 4 January 2000 recorded that it had now been shown that one of the drugs has been shown to cause “severe and life threatening liver toxicity including deaths. To date there have been 53 patients who had serious liver toxicity after receiving treatment (53 out of the 382 that enrolled equals 14% of the patients)”. In 11 cases they were considered life threatening and two patients died. The toxicities occurred more frequently in women. Trialists were urged to contact Dr Botes if they had signs of a number of listed symptoms.

8. At this meeting it was decided that the Second Defendant would arrange a meeting with the Ethics Committee of the University of Pretoria, at which members of the support group could put their complaints. This would be a public meeting at which the press would be present. In undertaking to arrange this meeting, the Second Defendant said that she was acting as a facilitator.

1. This meeting took place on 10 April 2000 in a lecture hall at the University of Pretoria. What preceded the meeting was a meeting with Professor Falkson, the head of the University’s Ethics Committee. At this preliminary meeting it was agreed that “complainants” would come to the University where they would convey their complaints to the Ethics Committee. To ensure the complainant’s attendance, the Second Defendant paid for a combi to bus them in.

2. Present at this meeting were Professor Falkson, members of the Ethics Committee of the University, Dr Botes, the Second Defendant, a Ms Vivienne Vermaak, a free-lance journalist, other journalists and the SABC. According to the Second Defendant, Dr Botes was the first speaker. She outlined the consent procedure she had followed and then objected to the meeting turning into a forum at which the support group could place their complaints on record. In response to her objection, Professor Falkson stopped the meeting and ruled that if the matter was to be investigated by the Ethics Committee, the “complainants” should lodge formal complaints. The meeting adjourned for this purpose.

3. There is a dispute as to which of the Plaintiffs was present at this meeting. The Plaintiffs deny being at this meeting. At the end of her cross-examination, Botes said that the Second Defendant had said “at a meeting attended by the Plaintiffs” that the Second Defendant claimed to have a mandate from the support group. The only meeting that Botes attended at which the Second Defendant was present is the meeting at Pretoria University. Viljoen says he is fairly certain all three Plaintiffs were at this meeting. In cross-examination, he conceded that it was unlikely but possible that they were not present. The Second Defendant said that the Plaintiffs were at this meeting. Again, nothing turns on this dispute.

4. After this meeting, it was decided that there would be a further meeting at which statements would be taken from those members of the support group who wished to pursue the matter. These statements would then be forwarded to the University of Pretoria’s Ethics Committee. The Second Defendant also decided to send copies of the complaints to the Human Rights Commission. This meeting took place on 27 April 2000 in a small house in Atteridgeville. According to the Second Defendant, Gladys Mamosadi, a counsellor at the centre, organised those who would be attending this meeting. She has since died. A number of members of the support group – Viljoen says approximately 10 – including the three Plaintiffs were present. There is no dispute that Viljoen, the Second Defendant and a Dr Gazi attended this meeting. The only dispute about those present has to do with whether a photographer arrived at the meeting. The Plaintiffs say a photographer was present but no photographs were taken. The Second Defendant and Viljoen deny the presence of a photographer. It is not necessary to resolve this dispute.

1. At this meeting, the Second Defendant says she busied herself with first buying food and then preparing food for those present. She did not take statements from any of those present. A number of statements were taken at this meeting. They are signed by the parties referred to in the statement. Included in the statements are those of the First and Second Plaintiff. They are written in English by Viljoen. The First and Second Plaintiff admit signing statements. The statement in the name of the Third Plaintiff is also written in English – it was probably written by Gladys Mamosadi. The Third Plaintiff, who says that she cannot read or write, admits placing an ‘X’ at the end of the statement.

2. What is recorded in the First Plaintiff’s statement is her name and address followed by:

“1. I have been HIV positive since 1983. I have never been sick during that whole period.

2. In September 1999 I attended the support group at (blank) Centre. Dr Botes called me, and told me that I had to have my blood taken because she wanted me to go onto the trial. When the results came, she called me to her office. She explained the consent for to me, but told me not to talk to anybody else about it because it was our secret. The trial was going to be for 18 months.

3. Initially I did not have any side effects. But a month ago I began to experience muscle cramps, muscle spasms and fits. I also feel stress, to such an extent that I fear I might get a stroke. I discussed it with Dr Botes. She never raised the possibility of stopping the trials. Instead, she put me on more medication.

4. I feel that the deterioration in my health is the result of the trials. I also think that I was never properly informed of what of what was my medical condition.”

3. The Second Plaintiff’s statement records her name and address followed by:

“1. I found out that I am HIV positive three years ago. However, until I went on the trials I did not have any health problems.

2. In 1999 I was doing a sewing course at (blank) Centre. Dr Botes came to the sewing class, and asked me to have blood drawn, because she wanted me to participate in the trials. When the results came, she called me into her office, gave me a consent form, and told me to sign it. She didn’t read it to me or explain it to me. She just gave me the form and told me to sign.

3. A month later I began to feel sick, with fever and pain. I went for repeated diagnosis. In November 1999 I was told that I have cervical cancer.

4. I am still continuing with the trials, but I am experiencing dizziness, muscle spasms and fits, which I believe are the results of the pills.

5. I wish the matter to be taken further. I think that the pills have caused damage to my health, and I also think it is wrong that the consent was never explained to me.”

4. The Third Plaintiff’s statement records her name and address followed by:

“1. I have been HIV positive for several years. I do not recall the exact date of my diagnosis but its been years now since I was diagnosed.

2. In October 1999 I was approached by Dr Botes during a visit to a clinic at Kalefong hospital and she told me about the new trial. She drew a sample of my blood and after a week she informed me that my blood qualified for the trial.

3. She gave me a consent form, explained it to me in Afrikaans and said if I develop any complication I must phone her. She then gave me a packet of pills and told me not to mix them with any other medication. At the time I had a problem of tonsils and was taking treatment. I then stopped taking medication for tonsils and started taking the new pills I received from Dr Botes.

4. After three weeks taking the pills, I started developing severe complications. I vomitted (sic vomited), had diarhea (sic diarrhoea), developed an itchy rash, had a fever and terrible mood swings.

5. I reported this to Dr Botes during my follow up appointments and she refered (sic referred) me to the clinic. They gave me other pills for the complications.

6. I have been taking the pills until 25 April 1999 and I wish to stop taking the medication because of the adverse side effects.

7. I wish to take this matter up because I feel Dr Botes did not treat us like human beings. We were also not fully informed with our rights as participants in this trial. We were also not informed of our progress. I wish that the matter be taken further.

8. On 3 May 2000 the Second Defendant sent copies of the statements then in her possession to the Ethics Committee of the University of Pretoria. In her covering letter she said that “I trust that you will investigate this matter further and arrange for the inquiry that I have previously requested”. She then named eight people, including the three Plaintiffs, who she said had mandated her to act on their behalf. On 4 May 2000 copies of the statements were sent to the Human Rights Commission. What it did with these statements is not known. The University decided to set up an Internal Committee to enquire into “the possibility of irregularities in the process of gaining informed consent and the failure to disclose the adverse effects of the trial drugs” as raised by the Second Defendant. The enquiry was conducted by Doctor Freislich. The dates on which it sat are not known. The Second Defendant was not invited to attend.

1. The report of this Internal Committee that was sent to the Ethics Committee on 10 August 2000 sets out how an informed consent is obtained from trialists who do not understand English. What is said is that before signing a consent its content is explained. Anything not understood by a trialist is explained through an interpreter. Thereafter the trialist signs each page of the document. A copy of the consent that is in English is also given to the trialists. Dr Botes’ role in obtaining the consent is spelled out.

2. With reference to the adverse effects of trial drugs, the report states that trialists were fully informed by Dr Botes, in the presence of a nursing sister, of this possibility at the initial clinical visit. Anything not understood was translated. Trialists were told to report all adverse effects, as soon as they occurred, to Dr Botes.

3. The report concludes by finding that internationally accepted norms were followed in obtaining an informed consent and that all participants were informed of all known adverse effects of trial drugs and of any new adverse effects as soon as they became known.

10. Turning to the Plaintiffs, whose statements had been sent to the Internal Committee, the report states that in May 2000 two of the hospital’s Social Workers interviewed the three Plaintiffs and another person. “All of them indicated that they were participating in the trial of their own free will and they wanted to continue with the trial. In interviews with Dr J E Dafel, Dr Freislich and Ms Patricia Mohale (an interpreter) on 30 June 2000, the above patients indicated that, although they signed the statements about the FTC 302 trial written by Father Johan Viljoen and a (sic an) unknown third female person, they did not fully understand it because it was written in English. They all said that they did not agree that the trial drugs were harming them. They all said that they wanted to continue to be treated by Dr Botes. They also said that they wanted to continue with the trial, since the trial drugs were helping them to feel better.”

10. The Internal Committee’s report that named the Plaintiffs was given to Professor Grové, the Registrar of the Pretoria University. Because he was perturbed at the attack on the University’s reputation, and notwithstanding the finding of the Internal Committee, he decided that the matter was sufficiently serious to commission an outside enquiry. In August 2000, Professor S A Strauss SC (Professor Emeritus of Law at the University of South Africa) was appointed by the University to conduct an inquiry into the Second Defendant’s complaint. In conducting his investigation, he was furnished with the report of the Internal Committee.

10. The University of Pretoria did not keep the Second Defendant informed of what it did following receipt of her letter of 3 May 2000. On 23 August 2000, she asked Professor Falkson to tell her what had happened. What she was sent was a letter enclosing a report from the Superintendent of the hospital that did not address the issues she had raised (This report has not been disclosed). On 12 October 2000, Professor Grové faxed a copy of the Internal Committee’s report to the Second Defendant. He also told her that the report and its findings had been referred to Professor Strauss, “an expert on medical law”, for his assessment. Professor Grové undertook to keep the Second Defendant informed.

10. The Second Defendant was not told when Professor Strauss would conduct his inquiry. She was not invited to the inquiry. Due to other commitments, he only started his inquiry on 28 February 2001. On 30 May 2001 he signed an 82 page report in which reference is made to 49 exhibits that were attached to the original report. The report is headed “Ethical and/ or Legal Regularity or Otherwise of Drug Trial FTC 302 Performed on Certain Patients At Kalefong Hospital, Pretoria in the Period 1999 – 2000”.

10. The three Plaintiffs, a number of other trialists and Dr Botes, amongst other, appeared at the inquiry. Professor Strauss says that the proceedings before him “were conducted in a very informal manner” and in a relaxed atmosphere. Questions were put conversationally, no one was interrogated in an aggressive or inquisitorial manner and there was no cross-examination.

10. The three Plaintiffs, who are named in the report, repudiated the statements taken at the Atteridgeville meeting.

1. The First Plaintiff told Professor Strauss that on arriving at the house a person called “N” told her that the drugs were illegal, they had killed M N and that the First Plaintiff was going to die. Of her statement to Viljoen, she said he had told her that the tablets would kill her. “He was writing this down so that these people can help you” i.e. the Second Defendant. “She told father Johan she did not understand what he meant but he kept on writing, writing; he didn’t explain to me because he was writing in English and I don’t know English but nobody explained in Sotho. Then he gave it to me and said sign this”, so she signed. The next day she told Dr Botes what had happened.

2. The Second Plaintiff told Professor Strauss that at the meeting, she was told by Viljoen that “they would make a letter to show that the tablets had a problem which caused me to undergo an operation”. “I was confused and frightened at the meeting. I decided I should agree. I tried to explain to him that I had no problem … He [Father Johan] wrote what he wrote. He gave me a paper to sign which I did not understand”. Dr Botes had said of the Second Plaintiff that her English was relatively good but not good enough to understand all the words in the consent form. Accordingly, Botes used a counsellor.

3. Professor Strauss noted that the Third Plaintiff was illiterate. She told him that she was more fluent in Afrikaans than in English. She went on to say that Dr Botes had explained the consent form to her in Afrikaans. As to her Atteridgeville statement, she said that it was written by a black lady she did not know. She said that what was in the statement was incorrect. They were not her words. “They wrote it on their own … those people when I left they wrote everything on paper”. She denied saying most of what was recorded in her statement. As to Dr Botes not treating “us” like human beings, her eventual response was to deny the complaint because Dr Botes “was the one that makes us better”.

1. With reference to the three Plaintiffs’ Atteridgeville statements, Professor Strauss found that on what they now told him, there was no substance in their original statements and no evidence of any improper conduct on the part of Dr Botes. He however went on to say that “very puzzling questions arise … about the circumstances leading to the signing” of the statements. He deliberately refrained from making any finding because he had not had the benefit of hearing from those who convened the meeting and the persons who took the statements. This is no doubt a reference to the fact that Viljoen and the Second Defendant were not asked to appear at the inquiry and to the fact that there was no attempt to interrogate or cross-examine witnesses.

2. When it came to the documents setting out the international standards that had to be complied with in order to ensure there was informed consent, Professor Strauss pointed that the documents were drafted in “learned” English with many technical terms that would make it difficult for the illiterate and semi-illiterate to understand. In addition to making use of interpreters, he recommended that a fairly brief document in all languages should be compiled and used in addition to the official documents. He stressed the need for properly qualified interpreters to be satisfied that a patient understood fully what the test involved. Where a patient did not qualify to go on a programme, the doctor must ensure that the patient understands the reasons. He concluded by saying that “Had this been done in respect of ‘the FTC 32 trial it can be stated with reasonable certainty that no complaints would have been made by anyone”.

3. In respectfully agreeing with this conclusion, I draw attention to paragraph 5.7 of this judgment in which I set out extracts from the consent forms that would, in my opinion, cause concern to any average reader. If, at the time, these facts were not properly explained to or understood by the trialists, it lends support to Viljoen’s reasons for asking the Second Defendant to intercede. It also helps to explain why the statements were taken and submitted to the Ethics Committee on 3 May 2000.

17. When they gave evidence before me, the three Plaintiffs distanced themselves from the statements the Second Defendant gave to the Ethics Committee on 3 May 2000. When Viljoen and the Second Defendant gave evidence, they confirmed the circumstances under which the statements were taken.

17. Like Professor Strauss, I am puzzled by the volte face on the part of the three Plaintiffs. Like him, and because it is only a collateral issue in this trial that was not fully explored, I do not intend making any finding on the issue. What should not however be overlooked is that by the time the Plaintiffs came to give evidence before Professor Strauss, which was some ten months after they made their Atteridgville statements, there is a probability that by then the consents had been properly explained. There is also the fact then when they appeared before Professor Strauss, all of them had been on anti-retrovirals for some 15 months. All appeared to be well. The possibility cannot be excluded that the lifeline that had been thrown to them in 1999, that may have caused certain initial unpleasant reactions, ultimately resulted in their infection being stabilised, their overall condition improving, leading in turn to an expectation of extended survival time and a reluctance to revisit the past.

17. Some time in April 2000, Viljoen was transferred by his Church from Pretoria to Johannesburg. In cross-examining Viljoen, Mr Berger SC, who appeared with Mr Machaba for the Plaintiffs, put to him that he and the Second Defendant had used the Plaintiffs for their own purpose and that once their statements had been taken, the Plaintiffs had served this purpose and that this is why he did not see them after 27 April 2000. He rejected the suggestion. Viljoen’s concern for people who are HIV positive is genuine. The consent form signed by trialists, shortly before he contacted the Second Defendant, support what he said he had heard at the time about the effect of the medication on trialists. No facts were put to Viljoen to justify Counsel’s attack on his credibility or his motive. No “purpose” was suggested to Viljoen. The proposition put to Viljoen was unwarranted and unjustified.

1. In an introductory paragraph to his report Professor Strauss states that “I insisted upon each patient (or representative person / persons in respect of a deceased patient) giving consent to me in writing, the terms of which consent appears in Exhibit A1 through to A8”. The terms of these consents form the hub of this trial. The consents that are in identical terms include those signed by the Plaintiffs. The document is headed “Consent Form”. It records the person’s name followed by:

“I … give consent that

1. All my medical records and other documentation and all other relevant information to complaints lodged by me in connection with trial FTC 302 be submitted to Professor Strauss for purposes of the proposed investigation, and

2. To Professor Strauss that he may conduct the proposed investigation and that he may make his findings known to the Registrar of the University of Pretoria, the medical staff involved in the trial and Ms De Lille.” (My emphasis)

There is then a place for a signature or a thumb print, the date and an interpreter’s affirmation that the content has been translated and understood in Sotho.

2. In his report and when dealing with those who appeared before him, Professor Strauss referred to them by name. This includes the three Plaintiffs, whose HIV status and participation in the trial was disclosed. His findings and recommendations do not identify any person.

3. Professor Strauss sent his report and its annexures to Professor Grové. On 15 June 2001 Professor Grové sent a copy of the report to the Second Defendant. He did not attach any of the annexures. In particular, the consents signed by the Plaintiffs were not attached. In his covering letter, he wrote “Appended you will find the report of Professor S A Strauss into the ethical and / or legal irregularities or otherwise of Drug Trial FTC 302 performed on certain patients at Kalafong Hospital during the period 1999 to 2000. The University is currently studying the report and its recommendations.” What assumed importance in this trial is that there is nothing in either the letter or the report to indicate that any part of the report is to be treated as confidential. Professor Grové also sent a copy of the report to Ms Vermaak, a journalist who was present at the Pretoria University meeting. At the inquiry she had appeared on behalf of some of the people interviewed by Professor Strauss. According to Dr Botes, she believed that Vermaak worked for Noseweek – it is a publication edited by Martin Welz.

4. The Second Defendant read the report. She was disappointed that the Plaintiffs had repudiated their Atteridgeville statements and that they had not given her an explanation for what they had done. She disagreed with Professor Strauss’ findings. Having read the report she did nothing further. This supports her version that her role was that of facilitator in attempting to solve a problem between members of the support group and the hospital authorities. Her passive role from 3 May 2000, when she submitted the statements to the University, together with her reaction to the report in June 2001, negatives the suggestion put in cross-examination that she had intervened to promote her own political ends.

1. The First Defendant, Charlene Smith, has been a journalist for the past 20 years. She calls herself a human rights journalist. She has written a number of books on a number of topics-. It is not in issue that she has, over the years, played an active role in promoting the rights and interests of persons living with HIV / AIDS and, in particular, their right to anti-retroviral drugs. She has worked and lived with people who are HIV positive. As a rape victim, who has survived the possibility of being diagnosed HIV positive (these are facts that she has publicly disclosed), she is aware of the problems facing people living with HIV. She has written extensively on the subject. She has been recognised national and internationally for her work in the HIV / AIDS field.

2. Sometime over the period September to November 2001, the First Defendant was commissioned to write the Second Defendant’s biography to be published by the Third Defendant. To assist her in her work, the Second Defendant made her files and documents available to the First Defendant.

3. In planning the book, the First Defendant decided to devote a chapter to the Second Defendant’s involvement in the HIV / AIDS issue. To this end, the First Defendant was inter alia given access to the Strauss report.

22. The First and Second Defendant (no one testified on behalf of the Third Defendant) know that people have a right to privacy and a right to dignity. This acknowledgement includes the right of a person infected with HIV to decide to whom he or she will make a disclosure and the extent of any disclosure of his or her status. They also acknowledge that any unauthorised disclosure of a person’s HIV status can cause or increase stress.

1. The Second Defendant agreed that before disclosing private facts concerning another, the person involved must know and understand the nature of the disclosure and the implications of the disclosure. What must generally also be ensured is that there is an express consent to the disclosure and the extent thereof.

2. On a reading of the report that revealed that there were no exhibits attached to the Strauss report, the Second Defendant did nothing to obtain copies of the annexures. She said that a duty had rested on the University to give her the full report.

3. There was nothing in the report or Grové’s covering letter to suggest that any part of the report was confidential. In this context and after reading the report that named the Plaintiffs and disclosed their HIV status, the Second Defendant assumed and understood that the consent referred to by Strauss in the introduction to his report (see paragraph 20.1 hereof) included a consent to the Plaintiffs names and status’ being disclosed. If the consent to disclose the Plaintiffs names was in any way to be limited, she assumed, understood and expected that this would have been mentioned in either the report or in the letter that accompanied the report. In essence she regarded the report as a public document. In the circumstances, and as far as she was concerned, there was no onus or duty on her to find out what was in the consent form.

4. When she read the draft of the book, the possibility of not using the Plaintiffs names did not arise. As far as she was concerned, this was not an issue between herself and the First Defendant and, for that matter, the Third Defendant.

1. The First Defendant said that in her 20 year career as a journalist, she had always been careful not to breach a person’s right to privacy.

2. When she read the report, there was nothing in it or the covering letter to indicate that any part of the report was confidential and, in particular, nothing to suggest that the Plaintiffs had not consented to the disclosure of their names and HIV status’.

3. On realising from a reading of the Strauss report that its exhibits had not been attached, she decided that it was important to try to get all the exhibits including all the consents. The report identifies 49 exhibits. Eight of the exhibits are the consents furnished to Professor Strauss. There are then seven exhibits that set out the terms of the Informed Consent. Another eight exhibits contain copies of the statements that the Second Defendant sent to the Ethics Committee. To achieve her end, the First Defendant said that she telephoned the office of the Registrar of Pretoria University on three occasions to obtain copies of the exhibits. She said that she spoke to a middle aged Afrikaans speaking lady. She was unsuccessful. A Mrs Van Vreeden, who gave evidence in Afrikaans, has been Professor Grové’s secretary since March 2000. She telefaxed the Strauss report to the Second Defendant. She does not know the First Defendant. In evidence in chief, she said that to the best of her knowledge and over the period 15 June 2001 (the date the report was sent to the Second Defendant) to March 2002 (the date of publication of the book) no one calling herself Charlene Smith had telephoned and asked for any annexures to the Strauss report. In cross examination she said that she was “dood seker” it had not happened. What Van Vreeden was not asked was why, after what is possibly more than three years, she can remember conversations that did not take place. She was also not asked when she was first asked to recall these non-events. Mr Berger submitted that I should believe Van Vreeden and disbelieve the First Defendant. Mr Campbell, who appeared for the Defendants, submitted that I should believe the First Defendant because she was recalling what had in fact happened. Before identifying the Plaintiffs in the book, the First Defendant said that she did not think that, in addition to the telephoning, it was necessary that she write to Professor Grové to ask for copies of the exhibits.

4. The First Defendant also wanted to speak to the Plaintiffs and Dr Botes. She managed to contact Dr Botes, who would not assist her or tell her how to contact the Plaintiffs. That she phoned Botes appears from the book. She phoned Dr Botes on a second occasion. She left a message but Dr Botes did not return her call. She did not consider it helpful to drive to Tshwane or the hospital to look for the Plaintiffs. She had also telephoned Professor Strauss on two occasions to discuss his report. She left messages on his answering machine but got no reply.

5. Before the book was published, the First Defendant had told her that copies of the Strauss report had been given to Vermaak and another journalist Martin Welz. This reinforced her view that the content of the report was a public document. According to her this is because no one gives confidential documents to a journalist without saying that the content is confidential.

6. The First Defendant qualified the general statement referred to above by saying that when it comes to the disclosure of private facts, the source of a journalist’s information is an important consideration. If the disclosure comes from the affected person or an unidentified source, it is necessary to comply with the requirements for disclosure to which I have referred. However, where the disclosure of private facts, as in this case, comes from a reliable and responsible source or is contained in a report or document published by a credible organisation or body or by an eminent person, a journalist coming into possession of the report is entitled to assume that the person or organisation disclosing private facts has consent to publish the private facts concerning the named person. If such a person or body publishes or distributes a document containing private facts that are to be treated as confidential, the document is marked accordingly. Absent any such indication, a journalist can assume that the content of the document can be used. She said that it would impose an impossible burden on journalists if they were required to obtain independent corroboration or verification of such non-confidential disclosures. No contrary evidence was led. What the First Defendant said clearly also applied to journalists and biographers who are journalists.

7. The Second Defendant regarded the Strauss report as a public document. This was because it was the product of an investigation initiated by a responsible public body – the University of Pretoria – into an issue of public interest. The report was written by an eminent and respected lawyer and academic, who said he had obtained a written consent from all patients who appeared before him. Having identified each of the Plaintiffs in the report and their HIV status, she assumed, in the absence of any suggestion in the report or the letter that accompanied it of confidentiality, that the Plaintiffs had given an unqualified consent to the disclosure of their participation in the trials, their HIV status and the use of their names in the report and that this is what the consent signed by each of them indicated. That Vermaak, a fellow journalist also had the report, fortified her in her conclusion.

8. It was in these circumstances and notwithstanding the fact that she had not seen the exhibits attached to the original report that she decided to quote the extracts from Professor Strauss’ report that identified the Plaintiffs and their status.

25. The book was published in March 2002. It runs to 202 pages and is divided into 11 Chapters. Chapter 10 that is just over 20 pages is headed “Calculating the Cost Of Life: HIV / AIDS a challenge for humankind”. Under a sub-heading “The murky world of HIV” that is about 10 pages long, the First Defendant writes at the foot of page 164 that in “2000, (Second Defendant) told the media she had uncovered a nest of abuse and exploitation taking place at clinical trials … on HIV / AIDS patients at Kalefong Hospital near Pretoria”. On the second last line of page 170 and in the first 11 lines of page 171, and having referred to a number of people named by Professor Strauss in his report, the following appears:

“(Second Plaintiff) said she was told to sign a form, and was given no option. ‘A month later, she began to feel sick with fever and pain. In November 1999, she was told she had cervical cancer and began to experience dizziness, muscle spasms and fits. In the case of (Third Plaintiff), within three weeks of commencing the trial, she started developing severe complications: “I vomited, had diarrhoea, developed an itching rash, had a fever and terrible mood swings…”’

(First Plaintiff), who had been HIV-positive since 1983, had not been ill prior to April 2000, but testified that after commencing the trial, she began experiencing muscle cramps, muscle spasms and fits.

The substance of this quotation from the book comes from the Strauss report. >From the context in which this extract appears, there is a publication of not only the Plaintiffs names but also the fact that they are HIV positive.

26. Some 5 000 copies of the book were printed. In March 2002 the Third Defendant, the publisher of the book, caused it to be distributed to book shops throughout the country. Dr Botes found a copy in a bookshop. On browsing through it, she came across Chapter 10. She bought the book. Having read Chapter 10, she arranged separate meetings with each of the Plaintiffs. The three Plaintiffs are illiterate. They say that they do not understand or speak English. Dr Botes showed the Plaintiffs the book. She then told them that their names and HIV status had been disclosed. The three Plaintiffs said they did not know their names had been published in the book. They denied consenting to the publication of any information about them and their HIV status. Dr Botes described the First Plaintiff’s reaction as one of anger. She said that the Second Plaintiff was shocked and that the Third Plaintiff was shocked and angry. The Plaintiffs confirm this meeting and their initial reaction. At this stage, I would add that the First Plaintiff said that her attention was first drawn to the book by her boyfriend, who had been shown the extract by two of his friends.

26. When asked what they should do about the publication of their names and status in the book, Dr Botes referred the Plaintiffs to the Pretoria University’s Law Clinic. They followed her advice and on 25 April 2002, the Plaintiffs brought an urgent application in the Pretoria High Court, which they withdrew and which was followed by the present action. All of this is dealt with in paragraph 1 of this judgment.

26. On reading the founding affidavit at the end of April 2002, the Defendants knew that the Plaintiffs had given a very limited consent to Professor Strauss. They also knew that, at the very least, the Plaintiffs wanted all reference to their names removed from the book.

26. After reserving judgment, and by agreement, the parties submitted a document in which it is agreed that from March 2002 to date, the Third Defendant sold and, or, delivered 3 820 copies of the book to various bookshops, people and institutions. In 2002, 3 016 copies of the book were delivered. In 2003, 590 copies were delivered. In 2004, 197 copies were delivered and this year the figure is 17. The Third Defendant does not know how many copies of the book have been sold by the bookshops. The Third Defendant has 1118 unsold copies of the book in its warehouse. The Third Defendant can delete from these copies the references to the Plaintiffs. The Third Defendant has no power to effect a deletion of the Plaintiffs names from the copies of the book that remain unsold in bookshops. It has however handed to the Plaintiffs attorney a list setting out the names of the persons to whom the 3 820 books were sold and, or, delivered.

THE PLEADINGS

1. The Plaintiffs are referred to by initial. The First Defendant is described as a journalist. The Second Defendant is described as a member of Parliament. The Third Defendant is the publisher of the Second Defendant’s biography that was written by the First Defendant.

2. The Second Defendant admits making available to the First Defendant her copy of Professor Strauss’ report.

3. The essential elements of the Plaintiffs’ cause of action against the First and Second Defendant is that in making use of and causing their names and HIV status to be published, the First and Second Defendant acted without the Plaintiffs’ consent. It is alleged that they did so intentionally, alternatively negligently in that they knew or reasonably ought to have known that the Plaintiffs had not consented to the disclosure of their HIV status to the First Defendant and, or, to the public at large.

4. In the circumstances, the acts of the First and Second Defendant’s constituted an intentional, alternatively negligent, invasion of the Plaintiffs rights of personality, more particularly, their rights to privacy, dignity, psychological integrity and mental and intellectual well-being.

5. The case against the Third Defendant is that it caused the book to be published without first obtaining the Plaintiffs’ consent in circumstances where it knew or ought to have known that the Plaintiffs had not consented to the disclosure of their HIV status to it or to the public at large. In the circumstances, it is alleged that the Third Defendant’s publication of the book constituted an intentional, alternatively negligent, invasion of the Plaintiffs rights as outlined above.

6. The Plaintiffs go on to allege that:

1. As a result of the Defendants acts, they have suffered and will continue to suffer damages as long as the offending passages remain in the book.

2. Notwithstanding demand, the Defendants have failed to excise or remove their names from unsold copies of the book.

3. Notwithstanding a demand, the Defendants have failed to issue a private apology to them.

31. What is claimed is a joint and several judgment against the Defendants directing them to:

1. Issue a private apology to each of the patients;

2. Cause the offending passages to be excised from all unsold copies of the book;

3. Make payment to each of the Plaintiffs of R200 000;

4. Pay the costs of the action.

31. In substance the Defendants, who admit publication of the book and the disclosure of the Plaintiffs’ HIV status plead:

1. The background circumstances giving rise to the Strauss commission of inquiry and his report;

2. That a copy of Professor Strauss’ report was sent to the Second Defendant;

3. There was nothing in Professor Strauss’ report to indicate that any of the relevant information contained in it was confidential;

4. That the Plaintiffs gave the University of Pretoria permission to include their names and status in the Strauss report, alternatively it was reasonable for any reader of the report to assume that such permission had been given;

5. That the Plaintiffs identities and HIV status were not private facts when the Strauss report was made available to the First Defendant or at anytime thereafter.

31. The Defendants go on to admit that they have not issued a private apology to the Plaintiffs and that they have not caused any passage to be excised from unsold copies of the book.

31. By reason of the facts set out above, the Defendants deny all liability to the Plaintiffs.

THE LAW

31. The Common law and the Constitution protects a person’s right to privacy, dignity, integrity and mental and intellectual well being. An invasion of this bundle of rights is prima facie unlawful. These rights fall under the broad rubric of “Private Fact”, the disclosure of which will cause mental distress and injury to anyone possessed of ordinary feelings and intelligence and in respect of which there is a will to keep it private (see: National Media Ltd v Jooste [1996] ZASCA 24; 1996 (3) SA 262 AD at page 270I and 271D to 272D).

31. In formulating my judgment, I intend applying the principles enunciated in National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA) ;Khumalo & Others v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC) at paragraph 20; and Mthembi-Mahanyele v Mail & Guardian Ltd & Another 2004 (6) SA (SCA) paragraphs 44 to 51. As to what the Bogoshi judgment means, I agree with the following quotation from Mr Campbell’s heads of argument:

“Thus the true import of this judgment is that:

1. A new defence of reasonable publication is introduced;

2. Strict liability is rejected and animus iniuriandi is restored as an element, but unconsciousness of unlawfulness may not be the product of negligence because this would undermine the requirement of reasonableness in negativing unlawfulness.

Superficially, this puts animus iniuriandi and unlawfulness in the same place: the same facts either escape liability or do not escape liability whether one is determining unlawfulness or animus iniuriandi. However, this is to overlook a vital difference:

1. Negligence in respect of unlawfulness is judged objectively and with regard to publication. The question here, thus, is whether the reasonable person would have published in all the circumstances;

2. Negligence in respect of animus iniuriandi is subjective and with regard to the particular element of the delict. The question here is whether or not a defendant was subjectively negligent in not appreciating that, for example, as here, the Strauss report was confidential.

Media Liability for Defamation by J R Midgley (1999) 116 SALJ 211, especially at p222

Accordingly, it is respectfully submitted that a defendant is not liable when:

1. publication is not unlawful because he or she has published in circumstances where they have not been objectively negligent;

2. he or she lacks consciousness of unlawfulness and he or she was not subjectively negligent in not appreciating the mistake in terms of which publication was made.

This, no doubt, is what was meant by Lewis JA in Mthembi-Mahanyele v Mail & Guardian Ltd & Ano 2004 (6) SA 329 (SCA) at p350 A (para 46). No doubt if she meant to change the common law, and to disagree with prior decisions of the both the Supreme Court of Appeal and the Constitutional Court, there would have been a far more detailed motivation.”

31. I also intend to have regard to what was said by Harms JA in National Medial Ltd & Another v Jooste at page 271G to 272A: “A right to privacy encompasses the competence to determine the destiny of private facts (see Neetling’s comment on the judgment of the court a quo: (1994) 57 THRHR 703 at 706). The individual concerned is entitled to dictate the ambit of disclosure, for example to a circle of friends, a professional adviser or the public (cf Jansen van Vuuren and Another NNO v Kruger [1993] ZASCA 145; 1993 (4) SA 842 (A); Neetling Persoonlikheidsreg 3rd ed at 238-9). He may prescribe the purpose and method of the disclosure (cf the facts in O’Keeffe v Argus Printing and Publishing Co Ltd and Another 1954 (3) SA 244 (C) – whether that case was truly concerned with privacy does not require consideration). Similarly, I am of the view that a person is entitled to decide when and under what conditions private facts may be made public. A contrary view will place undue constraints upon the individual’s so-called ‘absolute rights of personality’ (Minister of Justice v Hofmeyr [1993] ZASCA 40; 1993 (3) SA 131 (A) at 145I). It will also mean that rights of personality are of a lower order that real or personal rights. These can be limited conditionally or unconditionally and irrespective of motive.” (My underlining)

THE REASONS FOR MY DECISION

31. The first issue to be decided is the Defendants liability to the Plaintiffs for the damages they are claiming. In deciding this issue I will, in addition to the summary of evidence, have regard to the expert evidence of Professor Anton Harber, a Professor of Journalism and Media Studies at the University of the Witwatersrand. In deciding the next major issue, which is the relief to which the Plaintiffs are entitled, I will refer to the evidence of two experts who gave evidence on the effect of the disclosure on the mental health of the Plaintiffs.

THE DEFENDANTS LIABILITY

1. Professor Harber, whose expertise is not in issue, was called by the Plaintiffs. He was asked to express an opinion on a matter that concerns “the publication of the names and status of three women in the biography of Patricia De Lille written by Charlene Smith and published by New Africa Books (Pty) Ltd without their prior consent”

2. In his expert summary and in evidence he referred to a number of national and international codes of conduct and authorities dealing with the duties and responsibilities of journalists reporting on people living with HIV. In his summary and in evidence he said that, on the facts with which he was briefed, journalists should obtain an informed consent before publishing a person’s HIV status and this includes clearly identifying themselves, discussing the purpose and use of the material and setting out the possible ramifications of the publication. In his opinion, the publication of the names and HIV status of the three women without their informed consent “transgressed the norms and standards of the profession”.

3. In cross-examination, Professor Harber’s opinion was not attacked. What he was asked was to express an opinion on the right of a journalist to publish the content of an official report made available to the journalist that disclosed an act of misconduct by a named person. In Professor Harber’s opinion, and before making a decision, he would advise the journalist to take legal advice, thereby conceding that the hypothesis raised legal issues and not a question of journalistic ethics or standards.

4. In so far as the Plaintiffs are concerned, the difficulty they have with Professor Harber’s opinion is that he was asked to deal with the wrong issue. What he was not asked was to qualify himself to deal with the defence pleaded by the Defendants and the facts of this case. He accordingly did not address these issues. It follows that his evidence, which I accept, does not assist the Plaintiffs.

40. The First and Second Defendant have, by their long standing involvement with people infected with HIV, demonstrated that they are two of the most unlikely people to intentionally invade the privacy of a person infected with HIV. I turn to ask whether, subjectively, the Second Defendant acted reasonably in passing on Professor Grové’s letter and the Strauss report to the First Defendant, whether the First Defendant acted reasonably in disclosing in the book the Plaintiffs names and HIV status, and whether the Third Defendant acted reasonably in publishing the book in the form written by the First Defendant. In legalese what I am deciding is whether the Defendants have rebutted the inference of animus injuriandi that arose from the initial publication of the book in March 2002.

1. In paragraph 23.1 to 24.8 of this judgment I have set out the facts and circumstances giving rise to the initial publication of the book that disclosed the Plaintiffs names and HIV status.

2. The decisive factors in this part of the inquiry are that the disclosure of the Plaintiffs names and status was contained in what was to all intents and purposes the report of an official inquiry, commissioned by a public body into a matter of public interest. The author of the report is an eminent person. There is nothing in the report, or the covering letter enclosing a copy of it, to suggest that any part of it, and particularly the Plaintiffs names and status, was confidential. All three Defendants were entitled to assume that in mentioning their names and status, Professor Strauss was acting in terms of a consent furnished by the Plaintiffs. That the actual consents were not attached to the report did not impose a legal duty on the Defendants to obtain copies of the consents. The First Defendant’s attempts to obtain copies of all the exhibits is consistent with her wanting to read the report as a whole. Regard being had to the status of the report and the facts as a whole, I find that there was no requirement on the part of any of the Defendants to obtain independent corroboration of any of the facts in the report and, in particular, there was no requirement that they obtain copies of the consents signed by the Plaintiffs. To recognise or impose such a duty on the Defendants would, on the facts of this case, place an intolerable burden on journalists and, in this case, the author of a biography.

3. I accordingly find that when the book was published, the publication of the Plaintiffs names and HIV status was not accompanied by any intention to injure. I.e. there was no animus injuriandi.

40. Turning to whether the Defendants were negligent in publishing the extract that disclosed the Plaintiffs names and HIV status, I find that on a consideration of all the facts, the Defendants have discharged their onus of proving an absence of negligence.

40. The Plaintiffs did not in fact authorise the disclosure of their names or status. I have found that no liability attaches to the Defendants arising out of the publication of the book in March 2002 in which private facts were disclosed. This finding does not mean that the Plaintiffs are not entitled to put a stop to the ongoing distribution of the book in its unexpurgated form and require the deletion of their names and status from all unsold copies of the book. Furthermore, my finding does not mean that they do not have a claim for damages based on the sale of unexpurgated copies of the book since the end of April 2002. In reaching this conclusion, I am guided by what was said in the Jooste decision. I accordingly find that, absent a waiver, the Plaintiffs have since the end of April 2002 had a continuing right to “determine the destiny of private facts” and to “dictate the ambit of disclosure”. This right is sufficiently asserted in the pleadings and has been dealt with in the course of the trial.

40. Part of the relief sought by the Plaintiffs is the removal from unsold copies of the book of the reference to them and their status (see paragraph 31.2 hereof). In argument, Mr Campbell did not oppose an order that would give effect to this demand in relation to the 1118 unsold copies of the book that the Third Defendant has in its possession. What remains to be considered is who is liable for the damages that the Plaintiffs have suffered as a result of the failure from the end of April 2002 to date to remove the Plaintiffs names and HIV status from the book. Thereafter, the question of the Plaintiffs damages must be assessed.

1. In the ordinary course, and once a book has been written and edited, it passes into the hands of the publisher, who is responsible for printing, publishing and distributing the book. All books printed are the property of the publisher – this is the uncontradicted evidence of the First and Second Defendant, both of whom said that they had no legal control over what the Third Defendant did with the book.

2. From the end of April 2002, the Third Defendant has known that all sales and deliveries of unexpurgated copies of the book were in breach of the Plaintiffs right to protect the privacy of their names and HIV status. The Third Defendant is liable for the damages that the Plaintiffs have suffered as a result of this breach. There is no basis on which I can find that, in law, either the First or Second Defendant is liable for such damages.

3. In this context it should be noted that after the First Defendant learned that the Plaintiffs had not authorised the publication of either their names or status, there were, according to her, numerous discussions with the Third Defendant. She was in favour of the Plaintiffs names being withdrawn from the book. She however left the decision to the Third Defendant. In cross-examination the Second Defendant said that she could not control the Third Defendant and that she had left the decision to the Third Defendant. In cross-examination the First and Second Defendant were criticised for not being more pro-active in getting the Third Defendant to remove the offending matter from the book.

4. As already stated, no one gave evidence on behalf of the Third Defendant. There is accordingly no explanation for it standing by since the end of April 2002.

45. On the assumption that a publisher achieves the largest volume of sales of a book at the time of or shortly after its launch, it is safe to say that an unknown, but considerable, number of books disclosing the Plaintiffs private facts have been sold from the end of April 2002 to date. The damages to which the Plaintiffs are entitled flow from the unknown number of “unauthorised” copies of the book sold by the Third Defendant over the past three years, i.e. from the end of April 2002 to date. This claim lies only against the Third Defendant.

1. It is not in issue in this trial that the right to privacy includes the right of a person infected with HIV to decide the ambit of any disclosure, as well as when and under what circumstances his or her status is to be disclosed (see Jooste’s case supra).

2. I accept that because of the ignorance and prejudices of large sections of our population, an unauthorised disclosure can result in social and economic ostracism. It can even lead to mental and physical assault.

3. That an unauthorised disclosure increases mental stress has already been recognised by our courts (see Janse van Vuuren & Another v Kruger 1983 (4) 842 (AD) at page 858A).

4. All of these facts are relevant, as an introduction, to an assessment of the damages to be awarded to the Plaintiffs.

MY ASSESSMENT OF THE PLAINTIFFS DAMAGES

47. As an aide to the assessment of their damages, the Plaintiffs called Elizabeth Molele, a social worker employed at the Kalafong hospital, and Matshepo Nefale, a clinical psychologist. In rebuttal of Nefale’s evidence, the Defendants called Leonard Carr.

47. In assessing the Plaintiffs damages, I will deal with the initial effect of the disclosure on the Plaintiffs as well as the fear of future disclosures with which they have had to live and will continue to live.

47. Molele has counselled the Plaintiffs since 1999, when they were diagnosed as being HIV positive. All of them had difficulty in coming to terms with what had happened to them. When they did, a major remaining concern was the retention of their right to privacy, which meant the right to determine to whom they might choose to disclose their status. Of particular importance to the Plaintiffs was the stigma and ostracism from family, friends and the community that could result from a disclosure of their status. Molele was present when the content of the book was explained to the Plaintiffs. Her observation was that she first saw fear and then anxiety on their faces. This changed to an expression of fury at the unauthorised disclosure of their secret that could lead, I quote, “to the whole world knowing that they were HIV positive”. To date, this fear has not materialised. Nefale and Carr agree that it is a fear with which the Plaintiffs continue to live. Nefale describes it as a constant fear that has resulted in trauma. Carr says it is a source of stress and that a distinction must be drawn between existing tangible consequences and imagined future consequences. He believes that the prospect of others finding out is a worry that does not constitute trauma. Carr’s opinion appears to be more realistic.

47. Nefale and Carr agreed that the Plaintiffs stress levels increased as they prepared for trial and faced up to the prospect of giving evidence in a court. A corollary to this agreement is that their stress levels will now abate. While on the topic of stress, what must not be overlooked is the probability that all three Plaintiffs have in any event led stressful lives that are linked to the economically strained circumstances in which they grew up and in which they appear to continue to live, their lack of education and economic opportunity, and their HIV positive status.

47. For the following reasons I believe that the Plaintiffs fears of a likelihood that the disclosure of their status in the book will lead to this fact becoming well known is more imagined than real.

1. The First Plaintiff was born in 1960. She has a grade 1 education. The Second Plaintiff, who was born in 1973, has a grade 5 education. The Third Plaintiff, who is in her late forties, has no education. At the time of the anti-retroviral trial, the three Plaintiffs were living in an informal settlement. The First Plaintiff has since moved to a formal settlement. All of them are illiterate in English and claim to have no understanding of English. The English literacy level of the community in which they live was not explored in evidence. What is known is that some of the people with whom some of them associate read magazines and newspapers.

2. The First Plaintiff says that before her meeting with Dr Botes, her boyfriend had told her that her name and HIV status had been disclosed in the book. There is no suggestion by any of the Plaintiffs that since their meeting with Dr Botes (which must have been shortly before 24 April 2002) anyone has confronted them with the fact that their names and HIV status was disclosed in the book. This non-confrontation over the past three years is relevant to the likelihood of there being any confrontation in the future. This likelihood will be further reduced by my ordering the deletion, from the unsold copies of the book, the reference to the Plaintiffs names. Both of these facts are particularly material to the damages to be awarded for the breach of the Plaintiffs right to privacy

3. Another fact that must reduce the likelihood of further disclosure is that biographies, especially those about politicians, are directed at and read by a limited number of people. This limited readership is unlikely to include people with whom the Plaintiffs come into regular contact or may come into contact.

47. In assessing the damages to be paid by the Third Defendant, I have found that when the book was first published, the Third Defendant did not initially know that the Plaintiffs had not consented to the disclosure of their names and HIV status. This means that it is not liable for the initial disclosure of the private facts that shocked, stressed and created a fear in the minds of the Plaintiffs. For reasons set out above, it is however liable for the damages that the Plaintiffs have suffered from the end of April 2002 to date. These damages are those that result from the sale since April 2002 by the Defendant of an unknown number of copies of the book (at least 810 – see paragraph 29) that discloses private facts of and concerning the Plaintiffs. Each sale to a member of the public notionally gives the Plaintiffs a cause of action based on the invasion of their right to privacy. The impact of these later disclosures must be less than the initial disclosure. As already stated, the Plaintiffs right to privacy is a common law right that is now enshrined in the Constitution. An important and aggravating element to the computation of any award is the fact that the Third Defendant has, over the past three years, ignored the Plaintiffs right to privacy and has done nothing to lessen their fears.

47. Mr Berger submitted that I should apply the ratio of the decision in the unreported judgment in Seymour v Minister of Safety & Security (Case Number: 26508/2001), handed down in this division by Willis J on 16 February 2005. Seymour claimed R10 million in damages arising out of an unlawful arrest that resulted in his being kept in custody for five days. He was awarded R500 000. Seymour was a 66 year old Managing Director of a public company, who had risen from humble origins to the position he occupied at the time of his arrest. Willis J described him as a “so-called coloured person (who) proudly describes himself now as a Black South African”. Seymour was arrested by an Inspector Smith. A feature of Willis J’s judgment is a reference to a 1989 judgment that commented with surprise on the low and insignificant awards made in the past in South Africa for infringement of personal safety, dignity, honour, self esteem and reputation. Willis J went on to say that “I share his surprise. It is nevertheless sobering to reflect that, at the time when the learned judge delivered his judgment, detention without trial was a measure sanctioned and not infrequently resorted to by the State. So careless was the State as to the concept of dignity that rights and privileges were allocated according to a person’s race. It seems to me that the Courts must move, however glacially, to reflect in their awards for damages in cases of this nature, the changes in values which have occurred not only in society as a whole but which we as judges are expected to apply.” What is immediately apparent is that I am dealing with an entirely different set of facts and circumstances. The facts in the Seymour decision are totally different to the facts and issues raised in this trial. In particular, there are no political or racial overtones in this case. As each case must be determined on its own facts, I find the Seymour decision unhelpful in determining the amount to be awarded to the Plaintiffs.

47. Mr Campbell suggested that in making an award, I should deduct an amount that reflects the court’s displeasure at the unwarranted attacks made in the course of cross-examination on the credibility and motives of the First and Second Defendant. He said that it was not only cruel, but that there had been no basis for putting to the First Defendant that, when she wrote the book, she could not have cared less for the Plaintiffs and that she had trampled on their rights. In the case of the Second Defendant, it was said that there was no basis for putting to her that she did not care about the Plaintiffs, that she was not interested in them, or that she saw them as a means to furthering her own political ends. The First and Second Defendant’s long standing commitment to and involvement with people living with HIV / AIDS was not questioned in cross-examination. In these circumstances, and in what became an emotionally charged cross-examination, the Plaintiffs Counsel may well have overstepped the mark. This does not however justify my visiting any censure on the Plaintiffs.

47. In considering the Third Defendant’s position, I take into account that it is being ordered to pay a solatium for a single wrong that affects three people. In the circumstances, I have had regard to the total amount to be paid by it.

47. I do not believe that this is a case for exemplary damages or that an award of R200 000 for each of the Plaintiffs is justified. Taking all the facts and circumstances into account, I intend ordering the Third Defendant to pay each of the Plaintiffs an amount of R15 000.

47. Mr Berger submitted that I should order the Defendants to privately apologise to the Plaintiffs. There is reason to doubt that such an order is still part of our law – see Mineworkers Investment Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W) at page 525E to H. As I have only found the Third Defendant liable to the Plaintiffs, I do not believe that such an order would in any event achieve anything.

47. Although the award falls within the jurisdiction of the magistrate’s court, the Plaintiffs were justified in bringing this matter to the High Court. The complexity of this matter and the work involved in preparing for and running this trial did not warrant the employment of two Counsel.

48. I intend making an order that will protect the confidentiality of the court file.

47. In the result, the following order is made:

1. The Plaintiffs claims against the First and Second Defendant are dismissed with costs;

2. The Third Defendant is ordered to pay each of the Plaintiffs an amount of R15 000;

1. The Third Defendant is, at its cost, directed to delete, from all copies of the book “Patricia De Lille” in its possession, the reference at page 170 and 171 to the Plaintiffs names;

2. Until such deletion is made, the Third Defendant shall not sell any further copies of the book;

3. To ensure that this part of the court’s order has been carried out, the Plaintiffs attorney shall, at any time after 30 June 2005, have the right on 72 hours notice to inspect all copies of the book in the Third Defendant’s possession;

4. The Third Defendant is to pay the Plaintiffs costs;

4. The court file is to be handed to the Registrar of this court, who shall keep it in a safe place and who shall not, without an order from a Judge in Chambers, disclose any part of its content that discloses the name, identity or HIV status of the Plaintiffs;

_________________________

I W SCHWARTZMAN

JUDGE OF THE HIGH COURT

On behalf of the Plaintiffs: Advocate D I Berger SC

Advocate T J Machaba

Instructed by: Ms A Meerkotter

AIDS Law Project

University of Witwatersrand

On behalf of the Defendants: Advocate J W G Campbell

Instructed by: Ms M Kennedy

Webber Wentzel Bowens

Date of Hearing: 22^nd April 2005

Date of Judgments: 13^th May 2005

If, for any reason, I do not hand down judgment in this matter, the terms of my order are as follows:

1. The Plaintiffs claim against the First and Second Defendant are dismissed with costs;

2. The Third Defendant is ordered to pay each of the Plaintiffs an amount of R25 000;

1. The Third Defendant is, at its cost, directed to delete, from all copies of the book “Patricia De Lille” that are in its possession, the reference at page 170 and 171 to the names of the Plaintiffs names;

2. Until such deletion is made, the Third Defendant shall not sell any further copies of the book;

3. To ensure that this part of the court’s order has been carried out, the Plaintiffs attorney shall, at any time after 30 June 2005, have the right on 72 hours notice to inspect all copies of the book in the Third Defendant’s possession;

4. The Third Defendant is to pay the Plaintiffs costs, including the costs occasioned by the employment of two Counsel;

5. The court file is to be handed to the Registrar of this court, who shall keep it in a safe place and who shall not, without an order from a Judge in Chambers, disclose any part of its contents that discloses the name or identity of the Plaintiffs;

____________________________

I W SCHWARTZMAN

JUDGE OF THE HIGH COURT

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