Thursday, January 21, 2021

Judgment in half million pula HIV law suit reserved

A case in which Kgakgamatso Sekgabetlela is suing government for P500 000 for a wrong HIV diagnosis took a dramatic turn Friday as the applicant demanded the reopening of the case, citing crucial and material evidence deficit.

Scheduled to entertain the closing submissions of both parties, attorney Duma Boko, now representing the plaintiff, deviated from court arrangement and argued that the court was misdirected to leave behind the evidence of an expert, preferably a clinical psychologist.

Boko contended that it was clear that the evidence that was previously led in court was not accompanied by a prognosis of the medical and psychological condition of the applicant, insisting that such diagnosis would greatly assist the court to arrive at an appropriate quantum.

“The prosecution intends to have the applicant’s condition evaluated by an expert witness, preferably a clinical psychologist. Arrangements are already at an advanced stage to get the expert on board,” he ascertained.
Apart from the plaintiff’s particulars of claim and the admission of liability on the part of the defendant, Boko noted that the court did not have the benefit of detailed facts, vis-├á-vis the negligence, to place it in a position to make an informed decision on the outstanding issue of assessment of quantum of damages.
He stressed it was, therefore, important to deal with this issue at the trial stage.

“This case is novel and has far-reaching implications in that patients results may well have been mixed, the consequence of which is that someone who deserved and needed treatment that the applicant was subjected to did not get it and thereby exposed him or herself to others.
“Secondly the other danger may well be that a patient who was told that he or she is HIV negative when, in fact, he or she is HIV positive may have gone around spreading the virus innocently on the belief that he or she were negative.”

Against this backdrop, Boko argued that it would be crucial to go to the bottom of this case and provide answers as it is in the “public interest and public benefit to do so”.

“The credibility of the health care system is at present a suspect and an explanation of what happened would be greatly useful, especially if it vindicates the health care system and assures the clients of these facilities that the systems are dependable.”
Boko proposed to call superintendents of heads of the medical institutions involved, insisting that “evidence on the circumstances and degree of negligence is material”.

As to the prejudice to be occasioned by the respondents, Boko negates the event submitting that “if leave is granted to reopen the case, they will not suffer prejudice because they have not called witnesses and have not, at this stage, motivated their submissions”.

He, instead, sees a bleak future of prejudice for Sekgabetlela should the application fail as she may not be adequately compensated.

In an attempt to rebut the application, Charles Gulubane, representing the state, argued that it would be freaky for the court to reopen the case on the premise of evidence from a medical expert when Sekgabetlela had never sought any professional medical help.
“She was only ‘counseled’ by her mother and siblings. What will the psychologist come here to say,” the dread-locked Gulubane argued.
He maintained that the case is not a novel issue to attract the public interest saying that the “court was not in place to please the interest of the public” but to see that justice is maintained.

At the moment, both parties have closed their cases and the general rule is that once parties have closed their cases, they are not entitled to call for further evidence without leave of court save in appropriate cases when the court can exercise its discretionary powers to allow for the reopening of the closed case.
Judge Michael Dingake will give judgment over the application on a date still to be communicated to the parties.

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