SAMA welcomes release of Limpopo doctors
Association, however, questions ‘spin’ from provincial health department
The South African Medical Association (SAMA) welcomes the release of two doctors from the Modimolle MDR-TB facility Limpopo who were forcibly quarantined there. Dr Claire Olivier and Dr Taryn Williams work at the Mmametlhake Hospital in Mpumalanga but live in Limpopo. They tested positive for COVID-19 on 29 March and self-isolated at their home. However, Limpopo Health MEC, Dr Phophi Ramathuba, insisted they be removed from their home and moved to the MDR-TB facility on 2 April.
Drs Williams and Olivier are both SAMA members employed in the public sector and sought guidance, advice, and support from SAMA at the time of their interaction with the Limpopo Department of Health.
“We are delighted that these two doctors – who self-isolated according to regulations when they tested positive for COVID-19 – are now allowed to return home. However, we remain concerned about the manner in which they were treated initially, especially considering they strictly followed NICD and national government regulations once they tested positive,” says Dr Angelique Coetzee, Chairperson of SAMA.
Dr Coetzee says the treatment of these doctors will have far-reaching consequences on other doctors who will be reluctant to be tested for fear of similar treatment if they are positive for COVID-19.
“Another issue is that valuable resources – which are already scarce and in high demand – have been utilised on keeping these two doctors in isolation instead of being used on other more vulnerable people,” says Dr Coetzee.
She says it is also concerning that the MEC decided not to listen to the objections of the medical profession to the forced isolation of the doctors and rather decided to continue with this heavy-handed course of action.
With the assistance of SAMA the doctors challenged the forced relocation in court. The Limpopo High Court ordered that legal representatives for the doctors, and for the MEC, reach a settlement before the matter proceeded further. A settlement agreement was reached on Tuesday, 7 April in terms of which the doctors would be released.
However, subsequent to this agreement, the doctors tested negative for COVID-19. This is an important fact because the MEC, through a press release from her office, is now noting this as the reason for the two doctors’ release from the facility.
“This is a disingenuous move clearly aimed at framing the release of Drs Olivier and Williams as a medical issue because of their negative tests. However, the pair had to be released from the facility because of a court order, not because they have since tested negative,” says Dr Coetzee.
A court order for costs in the matter is to be determined at a future date. SAMA will contest this because it does not believe the doctors should have been moved from their home to the Modimolle facility in the first place.
“The decision to take these two doctors away from self-isolation at their home to another facility was an incorrect one to begin with. It remains our view that the MEC and the provincial health department erred in making this decision, and should instead have allowed the doctors to remain where they were. However, the approach towards them necessitated intervention which unfortunately required the doctors and us to turn to the courts for relief,” notes Dr Coetzee.
The settlement which was reached, and the ensuring directive that the doctors should be released, were steps taken before their negative test results were made known. As such the test results have no bearing on the fact that they could leave the Modimolle facility. This, SAMA believes prevents any cost order for legal costs being made against them or the doctors.
“It is quite clear that any costs for this unfortunate episode must be carried by the provincial department of health and not the doctors who were trying to protect their interests against an unjust decision. These doctors were forcefully taken from their home against national government protocols and should not now have to pay because they were protecting their rights,” says Dr Coetzee.
In response to their release Dr Olivier and Dr Williams thanked SAMA for their assistance during this time, saying they believed SAMA’s intervention played a big role in the positive outcome for them.
"We needed someone we could rely on to help us through what was happening and you (SAMA) were there from the start. We are grateful for your input and legal assistance; we couldn’t have reached this outcome without you,” the doctors said in a joint communication to SAMA.
SAMA says it is important for the Department of Health to provide clear guidelines for self-isolation for doctors who have tested positive for COVID-19 to avoid a repeat of what happened in Limpopo.
Statement issued by SAMA, 9 April 2020
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Text of Claire Olivier and Taryn Williams’ affidavit in the case:
IN THE HIGH COURT OF SOUTH AFRICA (LIMPOPO DIVISION, POLOKWANE)
Case number: 2640/2020
In the matter between:
MEC for Health, Limpopo Province - First Applicant
The Head of the Department of Health, Limpopo Province - Second Applicant
and
Dr. Taryn Williams - First Respondent
Dr. Claire Olivier – Second Respondent
FIRST AND SECOND RESPONDENTS' ANSWERING AFFIDAVIT
I, the undersigned
Claire Olivier
do hereby make oath and state as follows:
1. I am a major medical doctor residing at 2B Magazyn Street, Modimolle, Limpopo.
2. The contents of the affidavit fall within my personal knowledge (unless otherwise indicated) and are true and correct.
3. I am duly authorised by the First Respondent to also act on her behalf in dealing with this urgent application. The Answering Affidavit of the First Respondent is appended hereto as Appendix AA1.
4. I have read the Notice of Motion and Founding Affidavit of the Applicants and answer thereto as set out below.
Introduction:
5. The Applicants obtained the court order of 2 April 2020 ex parte on incorrect and incomplete facts:
5.1. The Second Applicant, acting as the Applicants' deponent, has no personal knowledge of the vast majority of the purported facts to which she testifies.
5.2. There are also no confirmatory affidavits from any person that has personal knowledge of the true facts appended to the Founding Affidavit.
5.3. The Respondents respectfully further contend that there are in fact no witnesses that can testify to a number of the allegations contained in the Founding Affidavit. This is so, inter alia as a number of the events alluded to therein did not take place at all, and also as a number of the allegations are simply incorrect.
5.4. It thus appears that the Applicants have been materially misinformed about the true facts and have obtained the present relief ex parte whilst under a material misapprehension of the true facts.
5.5. For this reason, it is necessary that the Respondents firstly set out the true facts that are relevant to the matter.
6. The Respondents respectfully contend that if the honourable Court was made aware of the true facts at the hearing on 2 April 2020, the ex parte order would not have granted, and that the true facts also show that the ex parte order should be discharged and the application dismissed on the return day of the rule nisi.
Best practice regarding isolation and/or quarantine:
7. It is international and national best practice that persons who have tested positive for being infected with the Severe Acute Respiratory Coronavirus 2 (SARS-CoV-2 - referred to as "the virus concerned" below), but that show no or only mild symptoms of the resultant disease (Covid-19) should self isolate or self-quarantine.
8. The Respondents append hereto as Appendix AA2, the current protocol for
"The Clinical Management of Suspected or Confirmed COVID-19 Disease (Version 3)" dated 27 March 2020, signed by the Acting Director-General of the National Department of Health of the Republic of South Africa, and issued by the said Department and the National Institute for Communicable Diseases. I shall refer to the document below as "the Protocol".
9. At the time that this affidavit is signed, this is the most recent and up-to date document regarding the clinical treatment of suspected or confirmed Covid-19 cases that has been issued.
10. As stated in the following paragraphs of the said Protocol, self-isolation or self-quarantine is the approved manner of dealing with persons who have been identified as having been infected by the virus confirmed but that show no or only mild symptoms of the resultant disease:
10.1. On page 3 thereof, under the heading "Confirmed Covid-19 cases", it is stated that "(p)atients with mild disease may be considered for management at home provided that they are able to safely self isolate and are not at risk of developing severe disease (see criteria in table 2)".
10.2. On page 4 thereof, in paragraph 2.2 it is confirmed that "80% of symptomatic patients develop mild disease ... ".
10.3. In paragraph 4 on page 10 thereof, under the heading Management of Confirmed Covid-19 Cases, it is again confirmed that "(p)atients with mild disease may be considered for management at home provided that they are able to safely self-isolate and are not at risk of developing severe disease (see criteria in table 2)".
10.4. lt is also stated that "(i)f patients are to be managed at home, (it) is imperative that all appropriate measures are taken to prevent onward transmission of the disease to others", and reference is made to the advice contained in paragraph 3.1 of the Protocol. I shall deal more fully with this aspect below.
10.5. In table 2 (also on page 10), the following criteria for management at harne are further stated:
10.5.1. The patient should be more than 12 years old: The Respondents are respectively 29 and 28 years old, and thus fully comply with this criterium.
10.5.2. Certain vital statistics are provided that describe the mild state of the disease: Both of the Respondents are at present asymptomatic and do not even qualify to be diagnosed as having mild disease symptoms. This was confirmed most recently to us on 1 April 2020 by the independent Emergency Medical Practitioner sent by the State to determine our condition prior to the court application even being brought. We respectfully point out that the outcome of the medical assessment done by the EMP sent by the State was not disclosed in the Founding Affidavit, whilst it is a material fact in dealing with the matter.
10.5.3. Certain criteria are set for the circumstances under which the patient should be able to self-isolate or self quarantine. I shall deal with these criteria more fully below to show that our circumstances more than adequately provide for self-isolation or self-quarantine.
10.5.4. Lastly, certain criteria that indicates the risk of deterioration are listed. Neither of the Respondents meet any of the criteria as they are not more than 65 years old, have no cardiac or pulmonary co-morbidities, nor any other debilitating co-morbidity whatsoever.
11. One of the compelling reasons for the Protocol is that the rate at which the virus spreads might easily have the result that there will soon be more sick patients that require medical attention than there are the necessary facilities to treat such patients. For this reason, the facilities and resources have to be kept available for persons who actually need treatment and a place to stay in isolation, because -
11.1. their symptoms require treatment; and/or
11.2. they fall within the high-risk categories of deterioration; and/or
11.3. because their harne environment is not suitable for self-isolation or self-quarantine.
12. This fundamental risk that has resulted in the extreme decision to implement the National Lockdown, militates directly against the present decision of the Applicants to use these scarce resources at odds with the National Protocol for persons who do not require the use of such resources. In this regard, I append hereto as Appendix AA3 an extract from the National Government's official website relating to the pandemic at www.sacoronavirus.co.za, and as Appendix AA4, a true copy of the speech of the President of the Republic of South Africa in which the fundamental reasons for the National Lockdown were explained.
13. The same applies to the unnecessary further testing that the Limpopo Department of Health intends to perform on the Respondents. We were informed that on Monday, 6 April 2020, further tests would be done to determine whether we are still infected with the virus. However, such testing (the so-called PCR tests) has little value once it has been determined that a person is infected with the virus concerned, and is not required by the Protocol, as -
13.1. the test accuracy is unknown;
13.2. false negatives are reported;
13.3. the detection of viral RNA by means of PCR testing does not mean that live viruses are present; and
13.4. the outcome of the test has no bearing on the question whether the patient concerned is still infectious.
14. However, scarce testing kits will now be used to test whether the Respondents - who are known to have been infected - still show a positive result, that has no scientific or medical use.
15. I append hereto as Appendix AAS, a Scientific Review by the University of Stellenbosch in which the limited functionality of the PCR testing is described on page 9 thereof.
16. In the premises, and in accordance with the Protocol issued by the National Department of Health according to which management of patients are conducted country-wide, the Respondents are prime examples of persons who should be allowed to self-isolate.
17. In addition to all of the above considerations, the Respondents are themselves medical practitioners who can each keep an eye on the other during self-isolation, and who will be able to timeously detect and diagnose any material deterioration in the condition of the other, to take further steps to obtain treatment. (This would not constitute the Respondents being given special treatment because they are doctors, but rather serves as an additional level of comfort regarding the criteria concerned.)
18. The said Protocol for the management of patients is a rational document compiled by a group of experts at the behest of the National Government that takes into consideration all relevant factors that should be taken into account in making reasonable decisions in the management of patients, and any decision to treat asymptomatic patients otherwise that in accordance with the generally-applicable criteria should certainly be based on cogent and reasonable grounds.
19. The Respondents both consulted their private medical doctor (Dr. L. D. Pienaar) regarding their medical condition, and he also found that they were asymptomatic and recommended that they should be kept in self-isolation until testing negative. The diagnoses and advices of Dr. L. D. Pienaar regarding each of the Respondents are appended hereto as Appendices AA6 and AA7 respectively.
20. As I shall point out above, the alleged grounds on which the Applicants rely for the treatment of the Respondents are neither accurate nor complete, but instead creates a material misrepresentation of the true facts.
The situation of the Respondents prior to execution of the court order of 2 April 2020:
21. The First and Second Respondents are medical doctors who reside at 28 Magazyn Street, Modimolle, Limpopo Province.
22. The property concerned consists of a three-bedroom house with two bathrooms situated by itself on a fully fenced-off stand in Modimolle. I append hereto an aerial photograph of the property as Appendix AAS, on which the location of the property is indicated by the black line.
23. The stand on which the house is located is quite large (700 square meters) and there are high walls between the house and the stands on either side of it.
24. The property is well-suited for the purpose of self-isolation or self quarantine, as no person can inadvertently enter the property and so come into contact with any of the residents thereof. The First Respondent has been living at the house since April 2018 and the Second Respondent since January 2020.
25. The Respondents work as medical practitioners at the Mmamethlake Hospital in Mmamethlake, Mpumalanga, and travelled to their place of work on a daily basis (distance of about 55km).
26. It is overwhelmingly probable that the Respondents contracted the virus concerned at their place of work. There is no other place that the Respondents have visited over the past three months that would have exposed them to a higher risk that what they experience at their place of work.
27. On 22 March 2020, the First Respondent developed mild symptoms of flu and enquired from her employer (the Mpumalanga Department of Health) how she should deal with the matter. She was advised to treat it as flu, and to remain working, which she did.
28. By 25 March 2020, both Respondent had mild symptoms of flu, but were expressly instructed by the employer to continue working due to severe understaffing at the hospital where they work.
29. The Respondents however immediately instructed their domestic assistant to no langer attend at the hause, and since 25 March 2020 they have been alone at the property referred to above. I shall deal with this issue more fully below, but I now already deny in the strongest terms that the Respondents recklessly exposed their domestic assistant (or anybody eise) to the virus.
30. On 27 March 2020, the first day of the National Lockdown, the First Respondent elected to self-isolate as her mild symptoms persisted.
31. On 28 March 2020, the First Respondent voluntarily went to a private laboratory to be tested, and on 29 March 2020 it was confirmed that she had been infected by the virus concerned.
32. Save for attending at the private clinic for purposes of being tested, the First Respondent remained in self-isolation from 27 March 2020 until 2 April 2020, when she was taken to the MDR TB Hospital in terms of the court order.
33. The Second Respondent went tobe tested as soon as it was determined that the First Respondent has tested positive (on 29 March 2020), and when it was confirmed on the next day that she also tested positive, the Second Respondent also went into self-isolation and remained in self-isolation until 2 April 2020, when she was taken to the MDR TB Hospital in terms of the court order.
34. I shall deal in more particulars with the allegations in the Founding Affidavit that the Respondents have refused to self-isolate when I deal with the relevant paragraphs thereof, but I can now already categorically state that any allegation that we refused to self-isolate or self-quarantine is simply false.
35. On 30 March 2020, the Respondents telephonically alerted their domestic assistant of the fact that they had both tested positive and advised her to also self-isolate until she could be tested. It should be noted that the details of the domestic assistant were provided to all persons required by law in accordance with the Protocol referred to above. The Applicants are fully aware of her identity, but I refrain from mentioning the personal details of the domestic assistant herein to protect her privacy, but the Respondents are of course willing to also disclose this information to the honourable Court. It should however be noted that the domestic assistant was tested on 1 April 2020, and that she tested negative - in other words, she has not contracted the virus concerned.
36. On 31 March 2020, the Respondents were contacted for purposes of so called contact tracing and were also informed that an Emergency Medical Practitioner would attend at the house to do a medical assessment.
37. The said Emergency Medical Practitioner arrived at about 16h15 and the result of the outcome of the medical assessment of both Respondents showed that they were by then asymptomatic and clinically stable, with all their vital signs being normal. These facts were however not disclosed to the honourable Court when the application was brought ex parte.
38. I append hereto as Appendices AA9 and AAlO respectively, the daily symptom charts that each of the Respondents have kept up to date, that similarly confirms that the Respondents are asymptomatic. Both the First Respondent and I confirm that we have honestly and accurately kept the charts up to date with the correct information.
39. On 1 April 2020, the Respondents were informed that the Applicants had decided to place them under isolation or quarantine at the MDR TB Hospital. Numerous attempts to establish contact with the Second Respondent to discuss the matter with her, and to find out why the Protocol would not be applied, were unsuccessful.
40. Eventually, at 16h50 on 1 April 2020, the Second Respondent managed to get in contact with the First Applicant. The First Applicant informed her that all patients who have tested positive will be admitted to the isolation and quarantine facility, regardless of the criteria referred to above. This was confirmed by the Second Applicant later on the evening of 1 April 2020.
41. At 18h15 on 2 April 2020, the South African Police Services arrived at the house of the Respondents to execute the court order, and after obtaining legal advice and making suitable arrangements for the care of their pets, the Respondents were transported to the MDR TB Hospital in Modimolle.
The situation of the Respondents since the execution of the court order:
42. The Respondents are each detained in a separate room in the MDR TB Hospital, where they are each locked-up for 24 hours of the day. This is not isolation or quarantine - it is solitary confinement.
43. The facilities do not provide even the most basic of requirements - for instance, the Respondents have had to endure long periods when there is no teilet paper available to them, and the water that is provided to them to drink is provided in water bottles that have clearly been previously used in a hospital where tuberculosis is primarily treated.
44. Tuberculosis - which is the disease that is primarily treated at the facility - is a contagious disease that is the cause the most deaths in South Africa on an annual basis. I append hereto as Appendix AA11, the most recent (2017) report by the State (Statistics South Africa), confirming that "(o)nce again tuberculosis was the leading underlying natural cause of death in 2015/ accounting for 7/2% deaths ...".
45. The facilities are designed in such a manner that there is no way in which the Respondents can attract the attention of any of the staff at the facility.
46. The electronic system designed to enable patients to call on staff is apparently out of order, or is otherwise ignored, as its repeated use has not resulted in any staff member responding thereto.
47. Verbally calling out to staff members for attention also has absolutely no result.
48. It is only when the staff elect to attend at the rooms in which the Respondents are locked-in that the Respondents can speak to them.
49. If either of the Respondents required urgent assistance for whatever reason, they would not be able to obtain it.
50. The Respondents are provided with food three (3) times per day. On arrival on Thursday night at the facility, bread and jam was served for dinner. On Friday morning, the breakfast consisted of bread and butter. Lunch on Friday consisted of dry bread and a boiled egg, and dinner consisted of pap and stewed meat.
51. The food does not comply with any standard of nutrition that is required to maintain or support the immune system of a person that is infected with the virus concerned. As a medical doctor, I can confirm that the foods most required by persons who seek to boost their immune systems are fruits and vegetables - of which we have received none since our detention.
52. The Respondents are provided no opportunity for exercise or to ever leave the respective rooms in which they are detained.
53. The Respondents have been afforded no medical treatment or care whatsoever, and it appears that there are no medical doctors on site. At least, no medical doctor has interviewed either of the Respondents since their arrival on Thursday evening, and our discussion with staff members, conducted through the window when they bring us the food referred to above, discloses that they have very little knowledge of Covid-19 or its treatment, or of the Protocol.
54. By means of comparison, the Respondents are advised that in terms of International Law, solitary confinement of the type to which the Respondents are now exposed constitutes cruel, inhuman and degrading treatment, and if it persists for 15 days or longer, may amount to torture. Full legal argument in this regard will be addressed to the honourable Court at the hearing of the matter.
55. Surely, this type of solitary confinement is not what isolation or quarantine for purposes of preventing the spread of the virus concerned calls for, or can reasonably result in.
56.
Instead, the treatment of the Respondents has a clear punitive aspect, which supports the fact that during the telephone conversation between the First Applicant and I referred to above, the First Applicant told me that the Respondents would be placed in isolation "... because you brought the virus to my province11
57. Regardless of the above, there is with respect no rational basis on which the Respondents - as asymptomatic patients who eminently qualify to be managed in accordance with the best practice of self-isolation or self quarantine - should be subjected to their present treatment.
58. The Respondents wish to also mention the massive chilling effect that the decision - to detain all persons that test positive for the virus concerned within Limpopo Province in the same solitary confinement as the Respondents are presently detained in - will have on the willingness of persons to be tested. It is respectfully submitted that if it were known to ordinary South Africans that a positive test in Limpopo Province immediately and without exception means that one is detained in solitary confinement, locked in a room for 24 hours of the day with access only to insufficient food, with no exercise, no medical treatment and no access to essentials such as
toilet paper, it would cause many persons to avoid being tested for fear of being treated in this manner. This would have the opposite effect of what is presently urgently required to effectively deal with the pandemic.
The purported reasons for the committal of the Respondents to hospital:
59. As I shall show below, the purported basis for the committal of the Respondents to the MDR TB Hospital for isolation are simply false:
59.1. The Applicants contend that the Respondents are committed to the MDR TB Hospital because the Provincial Government of Limpopo has decided to place all persons who have tested positive for the virus concerned in isolation at the facility concerned (see inter alia paragraph 18 of the Founding Affidavit).
59.2. If there was such a decision, it is clearly at odds with the Protocol published by the National Department of Health and the National Institute of Communicable Diseases and has no rational basis that has been disclosed to the honourable Court. In particular, the national best practice as contained in the Protocol concerned and how it applies to the Respondents were also not disclosed to the honourable Court, and no explanation to justify the deviation therefrom was put before the honourable Court.
59.3. The true facts are however that on the date that the urgent ex parte application was brought before the honourable Court and the above paragraph presented as evidence, the Limpopo Department of Health also released the Covid-19 Situational Report of which a true copy is appended hereto as Appendix AA12, which shows inter a/ia that of the 19 cases that have been positively diagnosed in Limpopo Province -
59.3.1. seven persons (the largest group) were in self-isolation;
59.3.2. only six were isolated in a health facility (which number includes the Respondents, being the persons listed in items 13 and 14 of the Situational Report); and
59.3.3. the remainder were in hospital for treatment.
Legal considerations:
60. The Applicants present their case on the basis that they seek an interim interdict. There is, with respect, nothing interim about the relief that they seek. Full legal argument in this regard will be addressed to the honourable Court at the hearing of the matter.
61. To succeed with the actual relief that they seek - being a final interdict - the Applicants have to finally show, on a balance of probability and with the application of the evidentiary measure generally referred to as the Plascon Evans rule that -
61.1. they have locus standi in iudicio for the relief sought, in other words, that they have a clear right that will be harmed by the conduct of the Respondents;
61.2. the Respondents have acted unlawfully in breaching the clear right of the Applicants, and will continue to do so in future; and
61.3. there is no other adequate remedy.
62. The facts set out in Founding Affidavit do not make out a case for such relief, and when taken into consideration together with the facts set out herein, it is respectfully submitted that the application should be dismissed with costs.
63. Full legal argument in this regard, and in regard to all the other purely legal considerations will be addressed to the honourable Court at the hearing of the matter.
Concluding remarks before dealing with the Founding Affidavit:
64. I wish to emphasise that the Respondents are responsible medical practitioners who fully understand and appreciate the seriousness of the present pandemic. The Respondents took it upon themselves to be tested when their employer - a provincial department of health - did not require it, and thereafter voluntarily self-isolated.
65. Should the honourable Court discharge the present order and dismiss the application, the Respondents will return to their home as described above, and will continue to self-isolate there, until such time as they are medically advised that they no longer need to self-isolate. The Respondents will take all reasonable steps to avoid spreading the disease and shall comply with the Protocol in all respects.
66. It is most unfortunate that this matter has become the subject matter of a dispute between the First Applicant and the South Africa Medical Association (SAMA) that is presently playing out in the media.
67. As the Respondents understand the facts in this regard, SAMA published an open letter to the First Applicant in which the decision to commit the Respondents to isolation in the facility was criticised.
68. The First Applicant then responded by way of a press release appended hereto as Appendix AA13, that contains inter alia the following
fundamentally incorrect statements, that again confirm that the Applicants are acting on incorrect and incomplete information and thus obtained the ex parte order otherwise than by disclosing all relevant facts to the honourable Court:
68.1. There is a contention that the Respondent seek to be treated differently because they are doctors. This is not so - the Respondents simply seek to be treated in accordance with the best practice for asymptomatic persons as issued by the National Department of Health and implemented country-wide.
68.2. There is a contention that a decision has been taken to commit all persons who have tested positive in the Province to the facility. As already shown above, it is not correct that all persons who have tested positive have been committed to a health facility to isolate them.
68.3. There is a false allegation that we "fiercely rebelled and undermined" the Province - this is blatantly false. There are no primary facts stated as to what constituted this alleged "fierce rebellion and undermining". lt is correct that the Respondents questioned the reason why the best practice in accordance with the Protocol of the National Department of Health and the NICD was not being implemented - this is not "fierce rebellion" nor "undermining". The Respondents were then informed by the First Applicant that it was "because you brought the virus to my province".
68.4. There is a false and malicious contention that after we were tested positive for the virus, we "released our domestic worker" back to her home and family. Again, this is blatantly false: Our domestic assistant was sent home on 25 March 2020 (shortly after the symptoms were first noted), and we only tested positive on 29 and 30 March 2020 respectively.
68.5. It is also alleged that we should have notified the health authorities on time, expressly suggesting that we had not done so. The contrary is however true, and the health authorities were in fact immediately notified, as I have set out above.
68.6. There is a false allegation that we are non-cooperative to the extent that we have exposed the community to a possible super spreader. I have already shown above that the facts on which this contention relies is patently false.
68.7. There is a false statement that all persons who have tested positive for the virus is taken to the facility, when the Situation Report appended hereto clearly shows that that statement was to the knowledge of the Applicants, false.
68.8. It is falsely stated that the First Applicant did not tell the Respondents to "go back to Mpumalanga", when she in fact told the Second Respondent so during the telephone conversation during which she also accused the Respondents of "bringing the virus to my province" - which is also false statement.
69. The Respondents are advised that in terms of Regulation 11(4) and 11(5) of the regulations issued in terms of section 27(2) of the Disaster Management Act, 57 of 2002, published in Government Gazette 43107 of 18 March 2020, regarding the present Covid-19 pandemic, it is a criminal offence to distribute and/or publish false information through any medium, including social media, regarding Covid-19 and or the infection status thereof of any person, as well as any measure in this regard taken by Government. It is respectfully contended that both the contents of the Founding Affidavit and the press release of the First Applicant contravenes the provisions of the said Regulations in this regard.
70. The Respondents have also recently been advised that in a discussion between the First Applicant and the National Minister of Health, the First Applicant has suddenly taken a different approach by stating that the Respondents refused to self-isolate and that for that reason we had to be compelled to isolate. This is not the same as stating that all persons who have tested positive are compelled to isolate at the facility concerned, which (as has been shown above) is in any event also false.
71. I shall now proceed to deal with the various paragraphs of the Founding Affidavit:
Ad paragraph 1 thereof:
72. The Respondents deny that the Second Applicant has any locus standi in iudicio to apply for the relief concerned, as the Second Applicant has no clear right (or even prima facie right) that is being infringed upon by the Respondents.
Ad paragraphs 2 and 3 thereof:
73. The contents of the paragraph are denied. The Second Applicant has no personal knowledge of any of the facts that relate to the Respondents, or the material facts at hand. I shall point out in relation to each relevant paragraph where the Second Applicant errs regarding the true facts, and the Respondents also refer to the numerous facts set out above and which the Applicants have failed to deal with in their Founding Affidavit.
Ad paragraphs 4 and 5 thereof:
74. The Respondents deny that the Applicants have any locus standi in iudicio to apply for the relief concerned, as the Applicants have no clear right (or even prima facie right) that is being infringed upon by the Respondents.
Ad paragraphs 6 and 7 thereof:
75. The contents of the paragraphs are admitted, and I respectfully refer to the further relevant information regarding the Respondents and their place of residence that have been set out above.
Ad paragraph 8 thereof:
76. The Respondents are advised that the relief that the Applicants seek is not of an interim nature, but constitutes final relief depriving the Respondents finally and irrevocably of their personal freedom. The fact that the deprivation of freedom might be for a limited time does not change the essential nature and effect of the relief.
Ad paragraph 9 thereof:
77. The Respondents are advised that the law requires of the Applicants in any application to make out their case in the Founding Affidavit, as that is the only case that the Respondents will be able to meet in their Answering Affidavit. If legal argument in this regard is required at the hearing of the matter, such will be addressed to the honourable Court.
78. In addition, the Respondents are advised that the law requires of the Applicants who approached the honourable Court on an ex parte basis to act with uberrima fides, to not present incorrect facts and to make sure that all relevant facts that may influence the decision of the honourable Court are included in the Founding Affidavit.
79. The utterly extreme urgency with which the Applicants brought the application and their decision to bring the application on an ex parte basis is completely unjustified in the circumstances, as I shall show below, and is moreover based on false and misleading evidence.
80. In such circumstances, the Applicants cannot complain if their application is incomplete, and cannot seek to amplify the Founding Affidavit on which they relied to obtain the extreme relief that was obtained with incorrect and incomplete evidence.
Ad paragraph 10 thereof:
81. lt is admitted that the SARS-CoV-2 virus has caused a pandemic that is at present engulfing the whole world. Save as set out herein, the contents of the paragraph are denied.
Ad paragraph 11 thereof:
82. The contents of the paragraph are admitted, and I respectfully refer the honourable Court to the additional relevant information relating to the Respondents' place of residence as set out above.
83. The facts relating to the Respondents' place of residence and the fact that it is eminently suitable for purposes of self-isolation or self-quarantine was not disclosed to the honourable Court at the hearing of the ex parte application,
whereas it is material to the decision whether the Respondents should be
allowed to self-isolate, or whether the Respondents should be compelled into self-isolation at the present medical facility.
Ad paragraph 12 thereof:
84. The contents of the paragraph are denied.
85. The Respondents both tested positive, respectively on 29 March 2020 and 30 March 2020, as set out above.
86. The dates are important, because the Applicants sought to create the impression that the test results of the Respondents became available only immediately before the application was prepared and brought, whereas the results had been known to the Applicants for at least four days before the application was brought.
87. In those four days, the Respondents had committed none of the actions of which they are falsely accused in the remainder of the Founding Affidavit, but had remained in self-imposed self-isolation precisely in accordance with the Protocol of the National Department of Health and the NICD.
88. If the honourable Court had been informed of the fact that the test results had been available for a number of days and the Respondents were acting in accordance with the said Protocol, it is respectfully contended that the honourable Court would seriously have considered at least granting the Respondents the right to be heard in accordance with the maxim audi alteram partem, and would not have granted the relief on an ex parte basis.
89. In the premises, the paragraph contains a material misrepresentation.
Ad paragraph 13 thereof:
90. The contents of the paragraph are admitted.
Ad paragraph 14 thereof:
91. It is admitted that various regulations were issued in terms of the Disaster Management Act, 2002, which includes the document appended to the Founding Affidavit.
92. However, what the Applicants failed to also inform the honourable Court is that the Disaster Management Act, 2002 and regulations issued in terms thereof provide that various other State Departments are given the authority to issue further regulations and/or directives that pertain to their specific fields of speciality.
93. The Applicants also failed to inform the honourable Court that on 27 March 2020, some five days prior to the application being brought, the National Department of Health had issued the Protocol that is appended hereto as Appendix AA2.
94. The Respondents respectfully contend that the Applicants were obliged to disclose the existence of the Protocol, because if the honourable Court was informed of the existence of such Protocol and the fact that the Respondents were acting precisely in accordance therewith, the honourable Court would
have considered the application in a completely different light and would not have granted the relief concerned on an ex parte basis.
95. It is clear that the measures introduced by the Protocol constitute a process whereby the purported risk that the Applicants allege to address by means of the court order can adequately be addressed with much less infringement on the fundamental rights of the Respondents.
96. However, the Respondent point out that the purported risk (of the spread of the virus concerned) cannot actually be the issue that the Applicants honestly seek to address, as they have let the largest group of persons in the Limpopo Province that have tested positive for the virus concerned self isolate, as their own Situation Report issued on 2 April 2020 shows.
Ad paragraph 15 thereof:
97. The contents of sub regulation 5(2) is intentionally misquoted by the Second
Applicant: The regulation concerned expressly provides that the facilities are to be identified to be used for isolation and quarantine purposes "as the -need arises", but this qualification is not even mentioned by the Applicants.
98. When read with the other relevant documents that inform the contents thereof - such as the Protocol that describes the preferred method of managing asymptomatic patients - it is clear that the need would only arise in the instance where self-isolation or self-quarantine is not appropriate.
99. If the Applicants had informed the honourable Court of the true extent of the legislative and medical considerations that apply to self-isolation and self quarantine, the honourable Court would have looked at the application in a different light and would not have granted the relief on an ex parte basis.
Ad paragraph 16 thereof:
100. The contents of the paragraph are denied and again constitute an unqualified misstatement of the effect of the regulations that does not accord with the true import thereof, and that does not provide for any of the other considerations that materially affect the correct application of the said provisions.
101. As set out above, it would only be persons for whom the need actually exists that a decision would be made to force the person to attend at the facility concerned. There can be no reason to force persons to go to the facility concerned when the need to go does not exist.
Ad paragraph 17 thereof:
102. The Respondents deny that the MDR TB Hospital is a site that has been designated to admit persons that have tested positive for Covid-19. No proof of such designation has ever been provided.
Ad paragraph 18 thereof:
103. The Respondents dispute that the conduct of unknown other persons (of which there is but scant evidence and then only apparently from news reports) can result in a rational and reasonable decision to force all persons within Limpopo Province to be admitted to a single facility in Modimolle.
104. Such a decision would require that asymptomatic persons who have tested positive (and who can best be managed at home in accordance with the Protocol) would have to be transported for hundreds of kilometres from places such as Musina, Giyani and other far-flung places to Modimolle, which would obviously increase the risk of the virus concerned being spread over the whole of the province.
105. The Respondents also deny that such a decision has been taken, and I respectfully point out that no primary evidence of the decision has been disclosed - the honourable Court does not know who took the decision, whether that person is authorised to take the decision or when the decision was taken.
106. Moreover, the Situation Report of the Limpopo Province dated 2 April 2020 (the date of the ex parte application) clearly shows that the largest group of
the persons who have tested positive have not been forced to attend at the facility concerned, but remain in self-isolation.
107. If there was any merit in a decision to force all persons who have tested positive to be admitted to isolation facilities because some of those persons do not comply with the requirements of self-isolation, then surely that principle would apply to the whole of the Republic of South Africa. lt does not and in the rest of South Africa only the recalcitrant persons are compelled to attend at isolation facilities.
108. lt is with respect not appropriate for a single civil servant or politician to make decisions of such magnitude that are directly contrary to what is generally recognised, published and implemented as being the best practice, that impacts as little as possible on the rights and the circumstances of the members of the South African community whilst still achieving the purpose of the extra-ordinary and drastic measures that have been introduced to combat the spread of the virus concerned.
109. The purported decision that the Applicants refer to, appear to contain much more of a punitive purpose than a preventative purpose, which is entirely unjustified and unconstitutional in the circumstances. The correct approach would be to make decisions based on the facts of each case, and not to simply enforce such a contrarian decision on all persons without further consideration of all of the other relevant issues.
110. I also reiterate that the Respondents did not - after being diagnosed - go about their lives as if life was normal, but instead self-isolated at an appropriate place that is perfectly adequate for such purpose. I refer to what has already been stated in this regard and I shall deal with the issue more fully below, in response to the Applicants 1 false allegations in this regard.
Ad paragraph 19 thereof:
111. The decision to self-isolate is not left by government to the persons themselves, but are decisions that are taken by the responsible medical personnel who diagnose and manage the persons who are so diagnosed -
111.1. in accordance with the established and published protocols that have been promulgated by the National Department of Health; and
111.2. that are being implemented in the rest of South Africa.
112. The decisions concerned are thus decisions that are arrived at when all relevant facts relating to the person concerned have been properly taken into account in light of what the government has objectively determined is the best way to deal with such cases.
113. That is the very purpose of the protocols and of their publication. A decision to simply ignore the protocols for the proper and appropriate treatment of asymptomatic persons or persons with mild symptoms, is an irrational decision -
113.1. to not take relevant considerations into account (such as the Protocol and its reasons for existence, and the personal circumstances of the persons concerned); and
113.2. to instead impact as heavily and as negatively possible on the rights and living conditions of the persons concerned, without sufficient cause. (If there was sufficient cause to act as the Applicants state, then surely that would have been the standard of conduct throughout the Republic.)
Ad paragraph 20 thereof:
114. The contents of the paragraph are denied. No person came to the hause of the Respondents with the purpose of conveying the Respondents to the facility, and the Respondents did not refuse to accompany such a person.
115. The only person that came to the hause from the Emergency Medical Services was an Emergency Medical Practitioner who took our vital signs and determined that we were asymptomatic.
116. The Respondents point out that the third hand hearsay evidence does not even identify the person who allegedly made the report concerned to Mr. Kruger. If any such allegation was reported to him (which is still denied) then that report is blatantly false.
Ad paragraph 21 thereof:
117. The contents of the paragraph are denied.
118. The true facts are that - as part of our efforts to determine why the normal provisions of the Protocol relating to self-isolation would not be applied to us but that we would instead be forced into solitary confinement at the MDR TB Hospital - the Respondents repeatedly attempted to speak to Mr. Kruger, but could not reach him, and he did not call back. He certainly did not attend at the home of the Respondents to convince them to be admitted to the facility concerned.
119. I append hereto as Appendix AA14 a true copy of a screen print of the cellular telephone of the Second Respondent in the various attempts that were made to contact Mr. Kruger are reflected.
Ad paragraph 22 thereof:
120. The Respondents do not expect to be treated differently just because they are medical practitioners.
121. It is however correct that everybody is equal before the law, and that the Respondents are therefore entitled to be treated in accordance with the Protocol just as all other asymptomatic persons who qualify to self-isolate are treated country wide.
122. Ordinary South Africans who are asymptomatic and that otherwise fall outside of the risk profile as established in the Protocol are allowed to self isolate, and so should the Respondents be.
Ad paragraph 23 thereof:
123. The contents of the paragraph are denied and constitutes a vexatious misrepresentation of what the true state of affairs are. The Regulations do not provide that all persons that have tested positive for the virus concerned must be admitted to isolation facilities. I respectfully refer to what I have already stated in this regard, including the Applicants' own Situation Report that confirms that the largest group of such persons in the Limpopo Province are in fact self-isolating.
124. It is no wonder that the Applicants did not disclose the Protocol to the honourable Court at the ex parte hearing of the matter, as a disclosure of the contents of the Protocol would clearly have contradicted the contents of
these materially incorrect statements and would have exposed the contentions to be fundamentally untrue.
Ad paragraph 24 thereof:
125. The contents of the paragraph are denied.
126. The attention of the honourable Court is again drawn to the scant information that is provided in this regard - no dates or other particulars of the purported attempt to obtain an order from a magistrate is provided.
127. My legal representatives have made enquiries from the staff of the Magistrates' Court in Modimolle and have been informed that no such attempt was made. A confirmatory affidavit of the attorney that made the enquiries concerned is appended hereto as Appendix AA15.
128. Moreover, if inter-district travel is prohibited to the extent that government officials cannot enforce the Emergency Regulations, the Applicants would also not be able to convey persons who have tested positive in other districts to the hospital in Modimolle. The fact is that inter-district travel is possible and lawful to enable government officials to enforce the regulations. Otherwise, a local official such as Mr. Kruger could have approached the Magistrates' Court.
129. The fact is that the Applicants, having a suitable alternative remedy in the form of the provisions of regulations 4 and 5(2) - and thus in any event not being entitled to an interdict - elected to approach the High Court in Polokwane purely because it was convenient for them, and inconvenient and expensive for the Respondents to oppose the relief in Polokwane.
130. To establish such jurisdiction and to avoid the issue of a suitable alternative remedy existing, the Applicants made a materially false statement to the effect that they could not obtain the alternative relief at the Magistrates Court in Modimolle.
Ad paragraph 25 thereof:
131. The contents of the paragraph are noted.
Ad paragraph 26 thereof:
132. The Respondents do not dispute the jurisdiction of the honourable Court, but disputes the locus standi in iudicio of the Applicants to obtain the relief concerned, disputes that the relief that is sought is an interim interdict, disputes that a proper case for the relief that is sought has been made out
in the court papers, and contends that the Applicants have failed to provide all relevant evidence to obtain an order ex parte, and have also disclosed evidence that materially false. The remainder of the contents of the
paragraph are denied.
Ad paragraph 27 thereof:
133. The contents of the paragraph are denied. The relief set out in the Notice of Motion and that was contained in the court order that was sought by the Applicants in the draft order that they provided to court is materially different from the relief referred to in this paragraph. Full legal argument in this regard will be addressed to the honourable Court at the hearing of the matter.
134. There is no "warrant of arrest" provided for in the regulations or Annexure A thereto.
Ad paragraphs 28 and 29 thereof:
135. The contents of the paragraph are denied. I have dealt with the subject matter of the paragraph above, and respectfully refer to what has already been stated in this regard.
Ad paragraph 30 thereof:
136. The contents of the paragraph are denied. I have dealt with the subject matter of the paragraph above, and respectfully refer to what has already been stated in this regard.
Ad paragraph 31 thereof:
137. The contents of the paragraph are denied., The Applicants have disclosed no right of the Department that is being infringed upon or will be infringed upon if the Respondents continue to self-isolate at the place of residence as set out above.
138. There can be no conceivable harm (not to even mention irreparable harm) for the Department if the Respondents are managed as all other asymptomatic persons who have tested positive are managed country wide, by means of self-isolation and self-quarantine.
Ad paragraph 32 thereof:
139. The contents of the paragraph are denied. The extreme circumstances under which the Respondents are incarcerated in solitary confinement without access to basic necessities, exercise, decent treatment and freedom from unnecessary exposure to further life threatening diseases have been set out above, and I refer to what I have already stated in this regard.
140. Weighed against this is the fact that the Department will suffer no prejudice or harm whatsoever if the Respondents are managed as all other asymptomatic persons who have tested positive are managed country wide, by means of self-isolation and self-quarantine.
Ad paragraph 33 thereof:
141. The contents of the paragraph are denied. I have dealt with the subject matter above and respectfully refer to what I have already stated in this regard.
Ad paragraph 34 thereof:
142. The Respondents reiterate that there was no basis in fact or law for the Applicants to approach the honourable Court for relief on an ex parte basis, and in doing so not complying with their obligation to act with uberrima fides, in failing to disclose all relevant information and by relying on false information.
Ad paragraph 35 thereof:
143. The contents of the paragraph are denied. One must express real concern over such a blatant statement being made without any substance therefor, or primary facts being provided.
144. In discussing the matter with the various representatives of State (including the First and Second Applicants) we expressly stated that we would comply with a court order compelling us to attend at the facility, as confirmed in paragraph 21 of the Founding Affidavit.
145. Obviously, this entailed that we would partake in the court procedure and state our case for consideration. Our insistence on being heard cannot reasonably be mistaken as an indication that we would abscond when we received knowledge of pending court proceedings.
146. The Respondents contend that the Applicants have mislead the honourable Court by presenting false evidence and have thus obtained the present ex parte order ma!a fide.
Ad paragraph 36 thereof:
147. The fact that the Respondents are able to bring the matter back to court does not justify the Applicants misrepresentations and reliance on incomplete and incorrect facts, and their failure to act with uberrima fides in obtaining the ex parte order.
148. However, what will probably happen is that the Applicants will attempt to frustrate and delay the return day of the application, when the Respondents seek to anticipate the same with 24 hours' notice (as provided for in the court order).
Ad paragraphs 37, 38 and 39 thereof:
149. Trying times that may require extra-ordinary measures do not require or justify an ex parte application brought on false grounds, misleading omissions and the consequent misleading of the honourable Court.
150. The application could have been brought immediately after 29 March 2020, when the Respondents' diagnosis was known (and recorded in the Applicants' statistics) with notice to the Respondent to be heard on the very same day that it was eventually heard.
151. There is no justification for the conduct of the Applicants in bringing the application in the manner that they have done.
152. Regarding the urgency of anticipating the return date with 24 hours' notice to the Applicant, the Respondents respectfully contend as follows:
152.1. The detention of the Respondents is entirely unnecessary and unjustified in the circumstances. The Respondents are advised that any act of the State that results in a person being deprived of his or her personal freedom is a matter that justifies the urgent consideration of a court. It is essentially a matter de libero homine exhibendo, in circumstances where (so the Respondents are advised) the illegal deprivation of liberty is a threat to the very foundation of society. (In this regard, "illegal" refers to the Applicants obtaining an ex parte order without complying with their duty to act with uberrima fides, based on misleading omissions and false statements.)
152.2. The circumstances under which the Respondents are detained are cruel, inhuman and degrading as set out above, and should be terminated without any delay.
152.3. The order placing the Respondents in the present detention was obtained ex parte and with a clear understanding that it would be appropriate for the Respondents to bring the matter to court with only 24 hours' notice to the Applicants.
152.4. The ex parte order concerned was obtained in circumstances where the Applicants failed to comply with their obligation to act with uberrima fides, and on the basis of false evidence and material misrepresentations through omissions of relevant facts and otherwise. An order obtained in such circumstances should be immediately reconsidered by the honourable Court with reference to all the relevant and true facts and considerations.
Ad paragraph 40 thereof:
153. The contents of the paragraph are denied and I again refer to what I have already stated in this regard.
Ad paragraph 41 thereof:
154. In the premises, the First and Second Respondents shall pray for the dismissal of the application with costs on a scale as between attorney and dient, to mark the honourable Court's displeasure with the manner in which
the Applicants have dealt with this application, as set out above.
DEPONENT: CLAIRE OLIVIER
6th April 2020
ENDS
