REPORTABLE 

IN THE HIGH COURT OF SOUTH AFRICA
CAPE OF GOOD HOPE PROVINCIAL DIVISION

CASE NO: 15569/1996

In the matter between:

GIDEON GUSTAV ROUSSOUW		FIRST PLAINTIFF

G G ROUSSOW		SECOND PLAINTIFF 

And

KARL BRUCE BERGE	DEFENDANT

For Plaintiff:             Adv. D A J Uijs (SC)
For Defendant:	Mr K B Berge (In Person)

	
 JUDGMENT DELIVERED ON 12 MAY 2003

MEER, J

Introduction

In 1996 the plaintiff acting in his personal capacity as well as on behalf of his minor son, instituted a claim for damages against the defendant based on the actio inuriarum. The claim was based on the grounds that in or about 1985 the defendant commenced an adulterous relationship with Mrs Rossouw, first plaintiff’s wife at the time and mother of second plaintiff, (hereinafter referred to as “Mrs Rossouw”) and that the said relationship lasted over a period of about 7-8 years from 1985-1992. The defendant was Mrs Roussouw’s psychiatrist throughout this period. In so doing, the defendant had misused the trust relationship between himself and Mrs Rossouw, as his patient. He had also intentionally alienated her affections from the first plaintiff, and influenced her to end her relationship with him. 

The damages claimed by the plaintiffs, as a consequence, are in excess of R150 000 for patrimonial loss, predominantly by way of medical expenses incurred by the plaintiffs and Mrs Rossouw for psychiatric treatment. It is plaintiff’s case that such treatment was occasioned by the trauma arising from the alleged adulterous relationship between Mrs Rossouw and the defendant. The first plaintiff also claims R500 000 in damages for contumelia and loss of consortium.

Mr Uijs appeared for the plaintiffs. The defendant conducted his own defence. An initial hearing was held specifically to determine the merits of plaintiff’s claim, whereafter, should the plaintiffs succeed, the quantum would be determined. This judgment accordingly deals with the merits only.

At a pre-trial meeting of the parties, defendant agreed that a bundle of documents, Exhibit “A”, could be admitted as evidence for the purpose that it is what it purports to be. Page 1-57 of Exhibit A is a record of a hearing before the Disciplinary Committee of the South African Medical and Dental Council (hereinafter “SAMDC”) into the defendant’s conduct. A pre-trial minute recorded the defendant’s agreement that the record could be tendered into court as evidence of what it purported to be, but that the defendant failed to see the relevance thereof. The other documents forming part of Exhibit A, to which defendant admitted, were newspaper articles pertaining to sexual misconduct by medical practitioners, and extracts from defendant’s clinical notes. 

By the time this matter came to trial on 14 April 2003 it had been postponed approximately 7 times. Some of these postponements, it would appear, were occasioned by problems pertaining to the conduct of defendant’s defence. Until at least February 1998, the defendant was legally represented, whereafter, he had no legal representation. At the hearing, the defendant commenced a postponement application in order to enable him to apply for legal representation through legal aid, but he subsequently abandoned the postponement application and decided to conduct his own defence until such time as a legal aid lawyer could be assigned to him. 

In view of defendant’s undefended status I explained to him the procedure according to which a civil trial is conducted and guided him where necessary during the course of the hearing. I informed defendant also of the evidential burden in a civil trial, explaining that any evidence by the plaintiff which he did not dispute either by way of cross-examination or evidence in chief would remain undisputed, and if accepted, could impact on his defence. I also offered to direct defendant to relevant legal textbooks in the court library to assist with his defence. The defendant declined the offer, indicating this would not be necessary.

The defendant chose not to testify himself, but cross-examined the witnesses on various aspects of their testimony. The defendant conducted his defence with ease. I am satisfied that he understood the procedure, as well as the implications of his election not to testify. 

Evidence for the Plaintiffs

Four witnesses testified for the plaintiffs. They were the first and second plaintiffs, Mrs Rossouw, and Dr Lekas, a psychiatrist who testified as an expert. From the oral evidence and the documents which the parties agreed could be admitted as evidence, various facts emerged as common cause. It is useful to elucidate these at the outset, before assessing the evidence of the witnesses individually:

1)	Mrs Rossouw has been battling with and suffering the effects of severe depression for well over 20 years.

2)	As a family unit, the Rossouws constantly lived and grappled with her depression. The first and second plaintiffs are also prone to depression, have in fact been diagnosed with endogenous or hereditary depression and they too receive psychiatric treatment.

3)	The first plaintiff and Mrs Rossouw were married in July 1977 in Pretoria.

4)	During the early years of their marriage, the first plaintiff worked for the Department of Correctional Services and Mrs Rossouw was employed by the Department of Internal Affairs.

5)	The second plaintiff was born in 1979, a sickly child prone to allergies. By 1985 the second plaintiff had been diagnosed with severe asthma and the family moved to Cape Town in the interests of his health. The first plaintiff continued working for the Department of Correctional Services and was stationed at Pollsmoor Prison in Cape Town; Mrs Rossouw did not work.

6)	After the move to Cape Town, Mrs Rossouw became debilitated by depression, was unable either to go out to work or function productively in the home, as a wife and mother, and was referred to the defendant for psychiatric treatment.

7)	Mrs Rossouw was a patient of the defendant from 1985 to 1992 over which period she had approximately 127 appointments with him.

8)	The defendant’s diagnosis of her condition was recorded as  “severe personality disorder with emotional liability”. Her treatment consisted of individual psychotherapy and medication. A diagnosis of major depression was used for her medical aid account. All consultations took place at the defendant’s consulting rooms in Rondebosch.

9)	Mrs Rossouw’s consultations with the defendant terminated in December 1992, whereafter she became a patient of Dr Ashley Smith. At that stage, the SAMDC had commenced investigations into the defendant’s behaviour as a result of complaints that he had sexually harassed patients. Mrs Rossouw, with the assistance of Dr Ashley Smith, submitted an affidavit to the SAMDC which formed the basis of a charge of disgraceful conduct against the defendant for, inter alia, misusing the doctor/patient relationship by influencing Mrs Rossouw to become involved in a sexual relationship with him and performing sexual acts upon her.

10) The SAMDC disciplinary enquiry into the defendant’s conduct was held in 1993. Two identical charges for disgraceful conduct and sexual involvement with patients formed the basis of the enquiry. The first charge was in respect of Mrs Rossouw and the second pertained to a patient the defendant had seen in the latter half of the 1980’s.

11)The defendant was found guilty of improper and disgraceful conduct by the SAMDC and his name was removed from the register of medical practitioners.
      12) The first plaintiff and Mrs Rossouw were divorced in 1996.

Testimony of the first plaintiff

The first plaintiff is in his forties and has spent most of his working life in the employ of the Department of Correctional Services firstly in Pretoria and later at Pollsmoor prison, Cape Town. He is no longer employed, having been medically boarded on account of poor psychiatric health. He currently receives a pension. The first plaintiff’s testimony recounted in considerable detail how the Rossouw family unit had lived under the yoke of Mrs Rossouw’s depression, as well as the devastating effects her interactions with the defendant had had on the family. From his testimony the following emerged:

After the family had moved to Cape Town in 1984, and with the onset of his wife’s depression, the family doctor had referred her to the defendant for psychiatric treatment. The first plaintiff had agreed thereto in the hope that it would help his wife get over her depression, lead a normal life, return to work, and help their marriage. The first plaintiff had paid for the consultations with the assistance of his medical aid.

The first plaintiff himself had consulted on five to ten separate occasions with the defendant in a supportive capacity to his wife’s treatment. Initially these had been at the defendant’s request, but later consultations were initiated by the first plaintiff because of concern that Mrs Rossouw’s condition was not improving, as well as concern for the increasingly difficult home situation. The first plaintiff said that during one of these consultations the defendant had advised him to ask his wife for a divorce as a ruse to get her to drop her act and go out and work. He had also recommended that the first plaintiff have an affair. The first plaintiff responded that he was not that type of person whereupon the defendant had told him that his wife had had many affairs in Pretoria. Acting upon this the first plaintiff had in fact asked his wife for a divorce in 1988, but said he was not serious and wanted to save his marriage.

The first plaintiff had made it clear to the defendant when the topic of divorce came up again that he did not want to divorce his wife.

Under cross-examination the first plaintiff conceded that by the time he first saw the defendant in 1986, his marriage was unhappy. He conceded also that in February 1990, at a consultation with the defendant, he had said that his wife had lost interest in everything, slept all day, did not go out with the family, that the house was a pig sty and the he, the first plaintiff had to do all the housework as well as see to their son. He said he had reached breaking point but did not want a divorce. He had enquired of the defendant about hypnotherapy; his wife had subsequently explored this form of therapy to no avail and had returned to the defendant for psychiatric treatment. The depression had adversely affected their sex life and by 1991 they had moved into separate rooms. 

The first plaintiff said he discovered that his wife was in love with the defendant in 1994 when he intercepted a letter written by her to the defendant. At that stage the defendant 
had been replaced as her psychiatrist by a Dr Ashley Smith, and in his distress about the letter the first plaintiff went to see Dr Smith. Dr Smith had shown him an affidavit his wife had submitted to the SAMDC detailing her relationship with the defendant, and this had had devastating consequences on the first plaintiff’s emotional well-being.

The first plaintiff said he had become aggressive, suicidal and was eventually admitted to hospital with a nervous breakdown. He himself started receiving psychiatric treatment for depression, would be put off work form time to time and, eventually was unable to hold down a job and had to retire on early pension.

On this aspect of first plaintiff’s testimony, Dr Lekas, a psychiatrist who has been treating the first plaintiff for depression since April 2002, shed further light on first plaintiff’s mental health and the impact of these events thereon. He testified that the first plaintiff was afflicted with what he referred to as endogenous depression and explained this to be a chemical depression which has a hereditary component. He said persons like the first plaintiff, genetically predisposed to depression, could become depressed without the influence of external factors, but that external factors exacerbated their depression. Dr Lekas characterized the first plaintiff as having an obsessive personality.

After these devastating events, so continued the evidence of the first plaintiff, he had initially told Mrs Rossouw he wanted a divorce, but they subsequently went for hypnotherapy in an attempt to put things right. The situation did not improve. Mrs Rossouw obtained legal aid, initiated divorce proceedings and so they came to be divorced after twenty years of marriage.

The only challenge by the defendant to first plaintiff’s testimony, in cross-examination, was to impute blame to the first plaintiff himself for the breakdown of his marriage. Under cross examination the defendant read extracts of letters from Mrs Rossouw in which she had depicted the first plaintiff and their marriage in a bad light. In suggesting that it was the first plaintiff himself who had been responsible for the breakdown of the marriage, by way of illustration, the defendant stated that Mrs Rossouw had blamed the first plaintiff for her depression, accused him of being a perfectionist and that it was she who had in fact ultimately divorced him. The defendant suggested that it was difficult for the first plaintiff to accept responsibility for the breakdown of the marriage and hence he had chosen to transfer the blame thereof to the defendant. The first plaintiff denied this to be the case.

The defendant was unable to place the testimony of the first plaintiff in dispute. The first plaintiff struck me as a credible, honest and reliable witness. His testimony was that of a quietly determined, concerned parent and aggrieved former spouse. I accept his testimony.

The testimony of Mrs Rossouw

Mrs Rossouw testified candidly about her interactions with the defendant during her years as his patient. She also confirmed her oral and affidavit evidence before the SAMDC, as appears in the record of those proceedings, tendered by agreement. The following emerged from her evidence:

Initially when she commenced psychotherapy in 1984 she saw the defendant once a month and once a week in emergencies only. Her appointments would be of half an hour to an hour’s duration, depending on the seriousness of the situation. A year or so into her therapy a physical relationship had developed between her and the defendant and by 1990 they had become lovers. Her affidavit to the medical and dental council chronicles the relationship between them and her concerns for her family flowing therefrom as follows:

“3	Some 3 years after commencing treatment with Dr Berge, and during one of the individual psychotherapy sessions, he consoled me by hugging and kissing me. I was distressed and vulnerable but he led me to believe that I was special and that this was part of the therapy.

4. 	Following on from that at subsequent sessions he again and repeatedly infringed the professional trust I had placed in him and by convincing me that he and I were in a relationship. He then commenced a sexual relationship with me. I felt vulnerable, confused and unable to resist his advances due to my ongoing depressive order.

5.	This sexual relationship lasted until early this year when I became increasingly distressed at what was happening and terminated the relationship and the therapy unilaterally. The nature of the relationship included physical touching, petting and fellatio. I believe that the relationship was conducted by Dr Berge in a one sided manner with little or no regard for the effect that it was having on me and my depression.

6.	At times when I tried to stop the relationship, he indicated that he needed to continue in the relationship and that I would be causing him distress to terminate.  During this time I have become increasingly depressed and have even had suicidal thoughts at times. Dr Berge appeared to ignore these symptoms and continued in what I believe was an unprofessional and unethical manner.

7.	I make this affidavit in the hope and belief that other patients may be spared the distress that I have experienced through my contact with Dr Berge and in the belief that what he has done to me had been wrong and has damaged my health. I make this affidavit freely and without coercion by any party.

8.	I request that this affidavit be treated in the utmost confidence as if this information should reach my husband it would severely compromise my relationship and cause further distress to both him, my son and myself. I would be prepared to support this affidavit in oral evidence in the presence of Dr Berge should this prove necessary.”

Her sexual encounters with the defendant, she said, occurred only during consultations and in his consulting rooms. She had fallen in love with him, she said, as he was the only person who understood her and to whom she could talk. Although she felt guilty about the affair, she continued because the defendant, she said, was her reason to go on with life. Her husband’s continuous criticism had impacted on her depression. By contrast the defendant accepted her as she was and provided a safe haven for her. She said she had wanted to marry him. He had also given her to understand that he wanted to marry her. She declared herself to still love the defendant.

She said she had believed that the defendant was also in love with her. He took longer with her than her appointments required and had also shared personal intimacies with her about his unhappy marriage. 

She had normally made the appointments but, from time to time, the defendant would phone and schedule appointments. He had also on occasion phoned to arrange longer appointments. At the end of appointments he would insist that she come back and at no stage did he suggest that she consult another psychiatrist because of their relationship.  At one stage, in her desperation to try and save her

marriage, she said she had explored hypnotherapy. The defendant had been so upset about this that she had stopped this form of treatment after one appointment. As their affair developed she said there was no time for psychotherapy during her appointments, instead they were physically intimate or discussed personal matters.

She testified that the defendant had summarily stopped prescribing medication for her, Prozac and Lexotan, without any explanation. In the last year of the affair, stripped of the defenses of medication, she said she had started reflecting on where the affair was going, and this had increased her depression. She said she was further in turmoil because the affair went against her religious beliefs and views on marriage. She had told the defendant that she had given everything to him and she wanted to try and find out where their relationship was going. She had accused him of intentionally planning their relationship. He had admitted to this, saying he knew the relationship was wrong but that he wanted to work on it. She had become frustrated because the defendant would not tell her why he had won her love. At her last consultation with the defendant, she had spoken about the affair, saying it could not go on, describing it as “a thing that goes around in circles”.
The following day, in a terribly depressed state, she had gone to see Dr Sutton, a general practitioner. She said it had been her intention to ask him to prescribe an antidepressant. Instead she found herself telling him about her relationship with the defendant. Dr Sutton had telephoned the defendant who denied the affair. She told the SAMDC that if the defendant had not denied their affair she would not have proceeded        
4	Exhibit A at page 11

with her complaint to the Council, such was the strength of her love for the defendant. 
Thereafter she had been treated by Dr Ashley Smith who told her he was aware of other patients the defendant had conducted affairs with, and this had prompted her to depose to the affidavit before the SAMDC.

Reflecting on the affair, Mrs Rossouw said she had been vulnerable, exposed and susceptible to the defendant’s advances. Her feelings about this were to some extent corroborated by Dr Ashley Smith in his testimony before the SAMDC. He believed there had been a great deal of manipulation, possibly even subtle coercion which, because of her depression she would have been incapable of resisting. In his view the affair with the defendant had compounded and exacerbated her condition and negatively influenced her prognosis. Dr Smith said there had been transference and counter transference. From her side the transference was to see the defendant as a nutrient, a caring person who provided all the things her two failed marriages had been unable to provide. The counter transference from the defendant’s side had been narcissistic and egocentric. He had just taken what he wanted without any consideration of the effect on her.

Mrs Rossouw denied that the affair had been part of her amazing fantasy life as stated 

 Exhibit A at pages 20-23

in a letter by the defendant to the SAMDC. Dr Smith, too in his testimony before the Medical Council, said he did not think the information she presented to the Council was in any way a product of fantasy, nor that she was deluded. Mrs Rossouw denied 
further that she had ever threatened the defendant with her gun or that she was dangerous as alleged by him.

She said her affair with the defendant had been very traumatic for her husband and she had divorced him thereafter. Her son who was fifteen when he learnt about the affair had, she said,  become suicidal. She currently has a troubled relationship with her son. She and her son live in Kleinmond with her parents.

Defendant’s cross examination of Ms Rossouw focused primarily on letters she had written to him depicting her husband in a bad light, and steered clear of her evidence pertaining to the sexual encounters. In response, Mrs Rossouw said the letters had been a call for help and told the defendant that she had left his consulting rooms with more problems than when she entered. She said she had not wanted a divorce.

 Mrs Rossouw’s testimony accordingly withstood the defendant’s cross-examination and remained uncontested. Mrs Rossouw struck me as a sincere, and truthful witness. I accept her testimony.

Admissibility of Evidence before the disciplinary hearing committee of SAMDC

The evidence of Mrs Rossouw before the SAMDC, which I accepted, was confirmed by her in oral evidence. As appears above, the evidence of Dr Ashley Smith before the SAMDC  was also accepted by me. Even though Dr Smith did not testify before me, Dr Smith’s evidence is admissible as it forms part of the record, which the parties agreed could be used as evidence of what it purported to be.

Joubert in the Law of South Africa (LAWSA) Vol 9 at para 521 states that:

“ordinarily, at common law, the record of a witness’s testimony in former proceedings is hearsay and, as such, it is not evidence of the truth of its contents.”

and

“To this principle there are statutory and common law exceptions, the most obvious being that the parties may agree to the former proceedings constituting evidence of their content”. 

The record of the proceedings before the disciplinary committee of the SAMDC falls into the category of such an exception.

To the extent that it might be considered that the evidence of Dr Smith before the SAMDC is hearsay before me, such evidence is admissible in terms of section 3 of the Law of Evidence Amendment Act 45 of 1988, which permits hearsay evidence of civil proceedings under certain circumstances, set out at section 3(1)(a) to 3(1)(c) thereof. I am of the view, as specified under section 3(1)(c), that Dr Ashley Smith’s evidence is 
admissible in the interests of justice, having regard to the factors enumerated at section 3(1)(c)(i) to (vii).

Testimony of Second Plaintiff
 From the second plaintiff’s testimony, the following emerged: The second plaintiff is 24 years old and the recipient of a state disability grant. He is unable to work due to psychological and health problems. He has always been plagued with ill-health. As a young child he was asthmatic, suffered from attention deficit disorder and dyslexia. He said from the age of 5 he had grown up with a depressed mother and this had impacted negatively on him. However, between the ages of 5 and 14, he had not been unhappy  despite tensions in the home.

At the age of 14, when he discovered his mother’s affair with defendant, he said the shock had sent him into a state of emotional collapse and he had become suicidal. As a consequence of this trauma, he had become paranoid and had changed from a lovable and trusting person to one who could not trust. Everything he had experienced in his life before the age of 14 he described as a ‘cracker’ as compared to his life thereafter which he described as being like an ‘atomic bomb’.

Since the age of 14 he has been under some form of psychiatric care. He had nonetheless managed to complete matric and after he left school his health had deteriorated even further because of stress. He has lost reality with his emotions, he said, and even small things become too big for him to handle. He has been hospitalized many times. In 2000, he tried to commit suicide. He is unable to maintain relationships nor to keep a job. He said the stress of work made his body switch off. He is currently a state patient at Stukland. 

The second plaintiff said the effects of his parents’ divorce had been terrible on him. He was a minor when his father had initiated proceedings against the defendant and he had since ratified his father’s act. 

The second plaintiff’s evidence was undisputed. He struck me as a competent and honest witness. His pain was palpable from his testimony. I accept his evidence.

Evidence of Dr Lekas

Dr Lekas testified also on second plaintiff’s mental health. He had examined the second plaintiff at the request of his father on 30 October 2002, and had also studied various medical reports about the second plaintiff’s depression. Dr Lekas said that the second plaintiff,  like his father, suffered from endogenous depression, and that in addition, he has a chronic personality disorder and reacts intensely to stress of any nature. He said that any severe trauma could knock the second plaintiff off his perch and that the anxiety often seen in children of divorced parents was compounded in the case of the second plaintiff because of his predisposition to depression and anxiety. Dr Lekas’s diagnosis of the second plaintiff and conclusions pertaining to his psychiatric condition as appear from his medical report are as follows. 

“Diagnosis				[DSM 1V]
1.	Major Depressive Disorder -  chronic
2.	Sensitive and Dependant Personality
3.	Allergies. Rhinitis, sathma, attention deficit order
4.	Problems with primary support group, learning disability, occupational problems
5.	50%

Conclusions: Mr G.G. Rossouw [22] has a history of severe development problems due to allergies, asthma and Attention Deficit Disorder. He has a family history of major depression in several relatives. He has been severely sensitive and hyperactive to stress, developing depression in Std. 1 when struggling with learning problems and feeling rejected as a “stout en stupid” scholar. He became increasingly depressed from +/- 14 years, requiring several hospitalizations with numerous episodes and suicidal thoughts. He has required prolonged psychotherapy and chronic medication and has shown only partial progress. Due to his severe sensitiveness he reacted with depression at his mother’s severe depressive illness, also to his parents’ disharmony and divorce. His school career has suffered severely due to his illness and he has been incapable of fixed employment up to the present. He suffers from inborn and hereditary disorder as well as increased reactions to periods of personal stress. As a result this condition, education and ability to work or feel accepted in society have been severely disturbed by the trauma of Dr. K. Berge’s influence on his parents. He will require medication and psychotherapy for an indefinite period.”

Dr Lekas was asked to comment on the impact of the sudden withdrawal of drugs which 
the defendant had prescribed for Mrs Rossouw, namely, Xanol, Lexitan, Valium, Halcium, Emdolin, Reactivan, and Prozac. He said the withdrawal could result in a patient becoming very anxious and this could aggravate her condition.

He testified also that it was not uncommon for women patients to develop an affection 

 	Exhibit B
for their psychiatrists and that psychiatrists are trained not to have love or hate relationship with their patients. The ethical solution to a love affair between a psychiatrist and the patient was to discontinue therapy and arrange for a patient to be treated elsewhere. The rejection of a patient by the psychiatrist in these circumstances could aggravate the depression.

The evidence of Dr Lekas remained undisputed under cross-examination. The defendant said he agreed with Dr. Lekas’s testimony.

Argument

In argument the defendant’s defense emerged as one of total denial that he had conducted an adulterous relationship with Mrs Rossouw. He stated that she had fantasized the affair. He said that he had chosen not to cross-examine Mrs Rossouw specifically on her detailed testimony about the adulterous relationship because this would have served no purpose, as she lived in a fantasy world. He did not proffer reasons as to why he himself had chosen not to testify and present evidence supporting his argument that she had fantasized their adulterous relationship. His failure to testify before the SAMDC was also not satisfactorily explained. In this context, he referred to a letter which he said explained his decision not to testify. No such explanation is apparent from that letter.  Mr Uijs for the plaintiffs argued that from the undisputed evidence, the plaintiffs had proved on a balance of probabilities that the defendant had conducted an adulterous relationship with Mrs Rossouw. The undisputed evidence had, moreover, established on a balance of probabilities a causal connection between the adulterous relationship and the breakdown of the marriage. This, he said, satisfied the requirements for the commission of the iniuria implicit in the actio iniuriarum by the defendant. He said the animus iniurandi or intent required for the commission of such delict was satisfied by the mere fact that defendant had knowledge of the marriage between Mrs Rossouw  and the first plaintiff. He argued that the defendant had deliberately won the affection of Mrs Rossouw for his own gratification.  As her psychiatrist with full knowledge of her troubled family background and the fact that neither she nor her husband wanted a divorce, he had pursued her intentionally, regardless of the consequences which he knew could flow therefrom. These consequences, he ought to have known, would have been devastating to both the first and second plaintiffs.

10 Exhibit A at page 59

Mr. Uijs also argued that the defendant had failed in the duty of care, which he owed to Mrs Rossouw as her psychiatrist.

I agree with My Uijs that the evidence before me establishes that the defendant conducted an adulterous relationship with Mrs Rossouw. An act of adultery coupled with the knowledge that the person with whom the adultery is being committed is married, suffices to meet the requirements of the actio iniurium and  the animus iniuriandi, being the requisite element of fault for the commission of such delict. In the event of a defendant having no knowledge that the person with whom he commits adultery is married, the situation would be otherwise. Our courts acknowledge this.  

In Van der Westhuizen v Van Der Westhuizen and Another 1996 (2) SA 850 (C), mere knowledge of marriage was considered sufficient to award damages under the actio iniuriarum. This was also the case in Smit v Arthur 1976 (3) SA 378 (A).

In Foulds v Smith 1950 (1) A.D. 1 at 11, it was said:

“Die aantyging egter dat die twee beklaagdes met mekaar egbreug gepleeg het, hou reeds die bewering van dolus in.“
and:

 See also Van Der Merwe and Olivier Die Onregmatige Daad in die Suid-Afrikaanse Reg 1989 at p460

“Die vooropstelling van ons reg is dat die aantyging van ’n injurie reeds ‘n bewering van animus injuriandi inhou; ‘n bewering van werklike en subjektiewe animus injuriandi is dus in die konklusie van eis ontbeerlik. Waar ‘n man ‘n soortgelyke regsvordering instel teen ‘n ander wat met sy vrou egbreuk gepleeg het, is so ‘n besondere bewering nie gebruiklik nie; ek sien dus geen rede nie waarom die vrou, waar sy die eiseres is, genoodsaak is om so ‘n bewering te maak.”

Animus inuriandi has been defined as “the mental disposition to will the relevant consequences, with the knowledge that the consequence will be wrongful.” 

I am satisfied that given the personal dynamics between the defendant, Mrs Rossouw and the first plaintiff that the defendant had the requisite mental disposition and in addition bore the knowledge that the consequences of his actions would be wrongful. The wrongfulness of his conduct is, I believe, exacerbated not only within the context of the normal doctor patient relationship but also within the context of the power relationship which a specialist psychiatrist holds vis a vis a vulnerable and depressed patient.  The defendant abused that power in an outrageous and self serving manner.
I accordingly find for the plaintiffs on the merits with costs. 

ORDER
The following order is made. 
    
1	The plaintiffs have established on a balance of probabilities that the requirements for the actio inuriarum have been met, in that the defendant conducted an adulterous relationship with Mrs Rossouw.

2	The defendant is ordered to pay the costs of these proceeding pertaining to the merits only of the plaintiffs’ claim against him.

			………………….	
			 MEER, J