The disclosure of a woman’s HIV-positive status by her colleague in whom she had confided, as well as her supervisor, who had heard this from her colleague, will cost them dearly after the court ruled that they had to pay the woman R100,000 for defamation.
The plaintiff, who cannot be identified, initially claimed R1 million in damages from the pair, as well as from the National Union of Metal Workers of South Africa, to which they all belonged.
The high court sitting in Bloemfontein ordered that the union and its two members were liable to pay a total of R100,000 to the woman.
The plaintiff told the court that she had been devastated when her supervisor, out of the blue and during a meeting to address grievances by the workers, had divulged her status to everyone.
He, in turn, said he had not meant harm and had used her HIV status only as an example to prove that things could not be kept under wraps. He said he had later apologised to her.
While the court found this a mitigating factor in determining the amount of damages, the judge said it was unfortunately too late as the damage had been done.
The plaintiff testified that there had been a grievance meeting that had been directed at her supervisor. Fourteen of her colleagues, who had also had a gripe with him, were present.
Before the meeting, he had asked who the author of the grievances against him was. The chairperson at the meeting had said there was no need for him to know this.
That was when the supervisor told the meeting that things had a way of coming out in the open. He had then informed everyone there that the plaintiff was HIV-positive.
The plaintiff said she had confided in her colleague (the third defendant) years ago. She regarded her as a friend and sister and had no reason to believe that she would repeat it to anyone.
She denied that she had disclosed her HIV status to other people in the office. The plaintiff alleges that soon after the disclosure of her HIV status in the meeting, she was no longer well.
She was admitted to hospital and consulted a psychologist for a therapy session. She said her supervisor later came to comfort her but did not apologise for the utterances made in the grievance meeting.
She further testified that she had entertained thoughts of suicide after her status was disclosed.
She said her supervisor did not respect the employees’ confidentiality and that on the day of the meeting, he had walked out laughing.
One of her other colleagues testified that their supervisor had been talking about confidentiality when he suddenly told them the plaintiff was HIV positive. The colleague said she was shocked and hurt as she had never thought the plaintiff’s HIV status would be mentioned in a meeting that was supposed to resolve the grievances employees had against their supervisor.
The supervisor told the court that he had known about the plaintiff’s secret for many years and he had been concerned about the fact that she was always sick. He confirmed that the third defendant had told him about it.
He said that at the meeting, he needed to explain that the people who lodged the grievances were not confidential about one another’s private matters. He then gave an example – that he had known, since 2010, that the plaintiff was HIV positive as he had been told by the third defendant.
He said that after mentioning that the plaintiff was HIV positive, she started to cry. The meeting was adjourned to give her time to calm down. The meeting resumed and when it had ended, he apologised to her in the presence of all who had been present at the meeting.
The third defendant testified that in 2007, the plaintiff had confided in her that she was HIV positive. She said they were good friends, to the extent that they shared personal issues. In 2010, she told their supervisor about her colleague’s HIV status because he had raised a concern about the plaintiff having not been at work for a long time. This witness said she had communicated the plaintiff’s status to the supervisor in confidence.
The court said the supervisor’s defence, that he used the plaintiff’s HIV status as an example, was questionable.
“Of all the examples that could have been made particularly in a meeting, he instead chose to use the plaintiff’s HIV status as an example. The plaintiff could have not imagined her HIV status being cited as an example,” Judge S Chesiwe said.
He said a sensitive detail about one’s health should not be disclosed, especially in a meeting.
“The plaintiff’s HIV status is her private medical information which was shared without her consent. Even if the plaintiff had confided in the third defendant, it was clarified that the third defendant was known to the plaintiff like a sister, and consent was not given to divulge the plaintiff’s HIV status,” the judge said.
He, however, concluded that she had not proved she had suffered damages amounting to R1m. Therefore, R100,000 compensation was sufficient.