Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
the law defines intention — much more broadly than the notion of intention in
common usage.
6.9 Knowledge of unlawfulness (‘wederregtelikheidsbewussyn’ or
‘coloured intent’) 18
The principle of knowledge of unlawfulness requires that the wrongdoer, in addition
to directing his or her will at a particular result, must also have realised or
foreseen the possibility that the conduct was unlawful; an additional requirement
of subjective knowledge of the unlawfulness of his or her conduct is thus
required. The applicability of this doctrine is controversial, and the law on this
aspect is not settled. Although the doctrine has been accepted as part of our law,
our courts have on occasion questioned both its validity 19 and the extent of its
application. 20 There are indications from the courts that the concept may more
appropriately be dealt with under the rubric of unlawfulness. 21 Of relevance for
our purposes are decisions which have held that intention in the form of animus
iniuriandi does not require knowledge of unlawfulness. 22 This curtailment of the
concept makes it generally inapplicable to medical malpractice claims, where the
requirement of dolus is almost exclusively encountered in the form of animus
iniuriandi as a requirement of the actio iniuriarum.
Lack of knowledge of unlawfulness has therefore been held not to constitute a
defence in respect of, inter alia, invasion of privacy 23 and assault. 24 In C v Minister
of Correctional Services 25 an action was brought under the actio iniuriarum for invasion
of privacy. The plaintiff was a prisoner in the custody of the defendant. A
blood sample was taken from the plaintiff, which was later subjected to a test for
the HIV virus. The Department of Correctional Services had adopted the policy
that informed consent was a prerequisite for testing prisoners, and had specified
which norms were applicable. These included pre- and post-test counselling. The
18
See esp Le Roux v Dey 2010 (4) SA 210 (SCA) at 224–225; C v Minister of Correctional Services
1996 (4) SA 292 (T) at 305; but see also Le Roux v Dey 2011 (3) SA 274 (CC) at 318–319;
Neethling et al Law of Delict 6 ed (LexisNexis 2010) at 128–129.
19
See esp Le Roux v Dey 2010 (4) SA 210 (SCA) at paras [29] and [39] at 220C and 224E. The
Supreme Court of Appeal (per Harms JA) held that the doctrine was introduced by the
Continental Pandectists, who added an element to the concept of dolus, being consciousness
of wrongfulness. The court pointed to the dearth of authority for the concept of consciousness
of wrongfulness as a valid defence in the case of iniuriae. It regarded the concept as being
of dubious ancestry. However, on appeal to the Constitutional Court (Le Roux v Dey 2011 (3)
SA 274 (CC)), it was held that it was not necessary for the Supreme Court of Appeal to have
embarked on the enquiry as to whether our law should still require knowledge of wrongfulness
as part of animus iniuriandi, and nor was it necessary for the Constitutional Court to do
so (at [129] to [137]).
20
C v Minister of Correctional Services 1996 (4) SA 292 (T).
21
Le Roux v Dey 2010 (4) SA 210 (SCA) at [32]; Minister of Finance and Others v Gore NO 2007 (1)
SA 111 (SCA); Ramsay v Minister van Polisie en Andere 1981 (4) SA 802 (A).
22
Le Roux v Dey 2010 (4) SA 210 (SCA), especially at paras [33] and [39].
23
C v Minister of Correctional Services 1996 (4) SA 292 (T) at 306A–F.
24
Bennett v Minister of Police and Another 1980 (3) SA 24 (C).
25
1996 (4) SA 292 (T).