After 12 years of legal attrition, the Supreme Court of Appeal has ruled that KwaZulu-Natal psychologist Linda Holden can sue mining giant Assmang over a ‘malicious’ complaint to the Health Professions Council of SA (HPCSA), writes MedicalBrief. Her attorney said the complaint had been intimidation to silence Holden.
Holden's attorney Linda Payne said manganese miner Assmang's complaint to the HPCSA was typical SLAPP suit — Strategic Litigation Against Public Participation, a tactic used by large corporations to intimidate individuals or organisations lacking financial resources by forcing them to mount a protracted defence against spurious allegations. Assmang accused Holden of being “in gross breach of the professional ethics by which her profession is regulated and guilty of unprofessional conduct”.
In her court papers, Holden said that in laying the complaint, Assmang had used “disinformation” to “set in motion a strategy maliciously designed to intimidate her and to neutralise her from exposing information regarding the patients (referred to her by Assmang) by compelling her to defend herself instead”. She said the laying of “false charges” was done without reasonable or probable cause.
Tania Broughton, writing for Sunday Times Daily, reports that the saga started in 2006 when the Pietermaritzburg-based psychologist was counselling eight workers at Assmang’s Cato Ridge plant who had been diagnosed by doctors as having manganism, a neurological condition that left them permanently disabled after alleged exposure to high levels of toxic manganese dust.
Asmang claimed that Holden was operating beyond her professional remit as a psychologist and reported her to the HPCSA. But the council absolved her after an investigation and, in 2012, Holden instituted civil proceedings for malicious prosecution against the company which, in turn, insisted that her claim had become prescribed, being more than three years old.
While two lower courts agreed with the company, the SCA has now ruled that Holden's action was not prescribed and that while the report to the council was made in 2008, Holden was correct in her view that prescription only started running once the council had notified her that the complaint had been dismissed, which occurred in November 2009.
The SCA, which gave a costs order against Assmang, also rejected the company's assertion that a malicious prosecution action could not be countenanced by the courts because the courts had previously ruled that the tort of malicious prosecution does not extend to disciplinary proceedings.
“The HPCSA is an important tribunal. Its decision can have far reaching consequences. For instance, if the appellant was found guilty of being grossly in breach of her professional ethics, she might have lost her licence to practice. A statutory created tribunal, such as the HPCSA, employs the formal machinery of a criminal prosecution, with sanctions that are punitive in nature. It is closely analogous to and bears all of the hallmarks of a criminal prosecution.
In evidence given in previous proceedings, Holden told the court that the charges laid against her with the HPCSA had affected her personally, professionally and psychologically. She said there were “rumours” that she was unethical, referrals had diminished, her income had suffered and it had been “very unpleasant”.
Payne told MedicalBrief that although she was determined to pursue the case to the very end, it had drained “a lot of joy” out of her life. “If I had been found guilty of their spurious and legally expedient charges I would have, most likely, been struck off. No income or profession for life. Their accusations, though baseless, were all-encompassing.
“The effect on my family, personal decisions and future options have been life-altering, and constraining. No retirement for me because of hundreds of thousands spent and debts incurred.
“But my unhappiness is nothing compared to the hundreds of Assmang employees, poisoned by manganese in a previously ill-fitted plant. They have a lifelong degenerative disease. Many are now dead, short-changed in compensation, with shattered families, and disillusioned.
“This was another reason for the prolonged litigation. Many of the manganese poisoned men will have died since 2008. It's deliberate foresight by Assmang — a reduction of witnesses. And the hope of a loss of memory or confusion of facts by me. Twelve years is a long time to hold sequential memories.
“Would I do this again? Hell no. But I will see this through now, it is too late to stop now. I suppose an all-or-nothing recklessness?”
Holden said that one of the motivating factors for initially pursuing litigation against Assmang was seeing the “piss-poor and evasive, as well as litigatious and double dealing behaviour that the sick men were subjected to”.
“That was echoed in my similar treatment, although in my case, they needed to neutralise my testimony in the Labour Court. I had seen many affected men and their families. My evidence would have been emotional and persuasive.
“But as I've mentioned, though I received debt, the sick men received a death sentence.”
Holden said none of it would have been possible without the “grittiness and strength” of her attorney, Linda Payne. “She's been working on contingency for 12 years. Not received a cent to date. That's true loyalty and selflessness.”
The National Prosecuting Authority will not bring criminal charges against Assmang, owned by Patrice Motsepe's JSE-listed African Rainbow. In a letter to employees and the affected families recently, NPA provincial head Elaine Zungu said “there were no reasonable prospects of a successful prosecution’, records a second Sunday Times Daily report. This is despite a commission of inquiry into allegations of manganese poisoning at the factory recommending that the CEO be prosecuted.”
Simon Miya, who worked at Assmang for 28 years and was diagnosed with manganese poisoning, said the decision was a reminder that “if you don’t have money and power, your life is worth nothing … The company knew the dangers of manganese but they never warned us about it; we were not required to use masks, we had no protective gear or goggles, they were just killing us slowly and no one will ever be held accountable,” he said.
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[link url="http://www.saflii.org/za/cases/ZAKZDHC/2018/2.html"]2018 High Court judgment[/link]
[link url="http://www.saflii.org/za/cases/ZASCA/2020/145.html"]2020 Supreme Court of Appeal judgment[/link]