Dutton - Medical Malpractice in SA

Fault 83
blood sample was taken, and the HIV test administered, in contravention of these
norms. However, the employee of the defendant who took the sample had been
unaware of the norm of informed consent adopted by his employer at the time it
was taken. The Court accepted that the employee, through no fault of his own,
did not know of the norm of informed consent, and had throughout acted completely
bona fide. It was contended on behalf of the defendant that the plaintiff’s
action should therefore fail because there was no knowledge of the unlawfulness
of the conduct in question, and accordingly no intention (in the form of animus
iniuriandi). The Court found that in cases involving an invasion of privacy the
lack of knowledge of unlawfulness on the wrongdoer’s part was irrelevant, and
the employee had therefore had the necessary intention. 26
6.10 Intention and unlawfulness
In certain circumstances, the legal blameworthiness of the defendant’s state
of mind is a factor to be taken into account when assessing unlawfulness. So,
for instance, there are cases where intention, as opposed to mere negligence, is
said to be an essential element of unlawfulness, such as interference in contractual
rights 27 and unlawful competition. 28 However, intentionally causing harm
to others will not always be unlawful and intent does not necessarily indicate
unlawfulness. 29
6.11 Motive and intention
Motive — whether good or bad — must be distinguished from intention. Motive is
the reason for somebody’s conduct and should not be confused with intention. 30
In Minister of Justice v Hofmeyr, 31 Hoexter JA stated:
‘Intent and motive, however, are discrete concepts. As pointed out by Stratford JA
in Gluckman v Schneider: 32 “Motive … is the actuating impulse preceding intention.”
Intention is a reflection of the will rather than desire. The pertinent difference between
the two concepts was stressed in [Whittaker v Roos and Bateman]. 33 At 131 of his judgment
Solomon J stated: ‘It is not necessary in order to find that there was an animus
iniuriandi to prove any ill-will or spite on the part of the defendants towards the plaintiffs
…’
26
The issue has recently been the subject of judgments by both the Supreme Court of Appeal
and the Constitutional Court: See e g Le Roux v Dey 2011 (3) SA 274 (CC) at [129]–[137].
27
Dantex Investment Holdings (Pty) Ltd v Brenner and Others NNO 1989 (1) SA 390 (A); Country
Cloud Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA 214 (SCA) esp at
[24].
28
Geary and Son (Pty) Ltd v Gove 1964 (1) SA 434 (A); Country Cloud Trading CC v MEC, Department
of Infrastructure Development 2014 (2) SA 214 (SCA) esp at [24].
29
Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA 214
(SCA) at [25].
30
Le Roux v Dey 2011 (3) SA 274 (CC) at para 129; Esterhuizen v Administrator Transvaal 1957 (3)
SA 710 (T) at 722 F–H.
31
1993 (3) SA 131 (A) at 154.
32
1936 AD 151.
33
1912 AD 92.