A thirty-five-year-old Ramotswa woman, Obakeng Madubeka, was awarded by the High Court damages to the tune of P7, 000 plus costs to be settled by a certain Sadi Nokane for divulging her HIV status in public.
In support of his ruling and citing O’Regan J, of the Constitutional Court of South Africa on a similar matter, High Court judge, Justice David Newman stated that private medical information of whatever nature, particularly where it concerns life threatening diseases, is personal information, which is protected by the right of privacy.
Moreover, it is the sort of information which the person concerned has the right to decide whether to disclose.
”If the person does decide to disclose it, he or she is entitled to determine in what circumstances and to whom,” said Newman, adding that these are personal choices and must be respected not only by the state but by others.
Of course, doctors may need to know, and at times disclose the information for privileged reasons, but even then they are not entitled to disclose it outside of their professional circumstances without consent.
In this context, “private facts have been defined as “those matters the disclosure of which will cause mental distress and injury to anyone possessed of ordinary feelings and intelligence in the same circumstances and in respect of which there is a will to keep them private,” read a majority judgment, delivered in the South African Constitutional Court on similar but unrelated case, by Justice Madala.
Apparently, the plaintiff had on 2 July, 2008 caused to be served on the defendant a writ of summons, claiming damages in the amount of P50, 000 for defamation of character, alternatively, infringement of her right to privacy.
However, the Court threw out the aspect relating to defamation on the basis that Section 4(2) of the Prescription Act was not complied with.
Basing on the particulars of a case between Obakeng Madubela (Plaintiff) and Sadi Nokane (Defendant), with the plaintiff represented by BONELA, whilst the latter appeared in person, the causes of action arose from two separate incidents.
One took place on the 25th December, 2006 and the other in June 2007.
It is on record that Madubela’s HIV positive status was revealed by her husband to Nokane with whom he was engaged in an extra-marital relationship, several years before a chance meeting at Dinompolae Bar, in Ramotswa, late in the evening of Christmas Day, 2006.
Madubela testified that, on the latter occasion and within the hearing of her friends and others, about thirteen in number, Nokane greeted her with the words, “Dumela Meleko, ke botsa gore o tlhala leng ngwana wa batho pele o mo tsenya mogare?” (Hello Meleko, when are you divorcing the poor man before you infect him with the virus?)
Nokane had gone on to ask about the plaintiff’s viral load, and her CD4 count, in a language clearly intended to demean Madubela.
After all those derogatory remarks, Nokane is alleged to have made reference to Madubela’s husband, stating that she would be visiting ‘our man’ during the next public holiday.
The plaintiff’s submitted that the words uttered by Nokane within the hearing of women she had grown up with, had hurt her deeply, and lowered her self esteem.
Furthermore, the publicizing of her medical condition impacted negatively on her personal relationships, her business and political career, adding that Nokane’s conduct was motivated by the desire to terminate her marriage, and thereby enable them (Madubela’s husband and Nokane) to formalize their relationship.
The defendant had denied that all the reported incidents ever took place, and that there had been an improper relationship between her and Madubela’s husband.
She further feigned ignorance of the plaintiff’s HIV-positive status.
Denials notwithstanding, following the apparently contradictory responses or evidence by Nokane’s witnesses, and Madubela’s the court was able to form its view.
“Having carefully considered the versions of these two parties, and assessed their demeanor in the witness box, I find the evidence of the plaintiff to be more probably true,” explained Newman.
Her testimony was detailed and credible, and in regard to the incident at Dinompolae Bar, was corroborated in all material respects by an independent witness, who had grown up in Ramotswa Village and who knew both parties.
In contrast, the two witnesses called by the defendant did not assist her cause.
“Whereas she had testified that she had not consumed any alcohol at the Christmas party, her two witnesses contended otherwise, indeed the second witness even attested to the fact that the defendant was staggering, on account of her intoxicated state,” said the judge.
Summing up the case, the court accepted that Madubela’s right to privacy had been wrongfully and intentionally impaired, by disclosing her HIV-positive status to the persons within earshot at Dinompolae Bar on 25th December 2006, and at Score Supermarket in June 2007.
“I therefore find for the plaintiff, and award her damages of P7, 000 and cost of suit on the High Court scale,” concluded, Newman.