Asked by the Customer on 02-11-2017 13:25:32
Question posted in the Criminal Law category relating to Gauteng

Thank you for this service.

I want to make a criminal case of common assault against my dentist.  My case is similar to the case ESTERHUIZEN v ADMINISTRATOR, TRANSVAAL 1957 (3) SA 710 (T) .  In this case a girl lost libs after X-ray treatment.  In my case, I became disabled after dental treatment.

I will represent myself in this case and I have already completed all the court documents.  I just need an expert to read through them to ensure I don't make a fool of myself. I will pay for your time going through your documents. Please forward an e-mail address where I can send my documents.

Posted by Att. Patrick on 02-11-2017 14:19:42

Hi there and thank you for your question,

The Esterhuizen case that you refer to dealt with a situation where a doctor administered a large radiation dosage when he knew that it would cause damage and harm to the patient, and he went forwards with the treatment notwithstanding. The case also dealt with consent to undergo the x-ray treatment when you think that the treatment is harmless, and the obligations on the doctor to explain the situation and the resultant dangers to the patient.

Each case is decided on a case by case basis, all dependent on its own facts.

If you want to send the court documents to my email address, I can have a look at them. I will ask the website to send you a separate email with my address in it. 

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Posted by Att. Patrick on 04-11-2017 19:19:50

Hi there,

There are a couple of things that I will comment on regarding your claim. I can see that you've made a lot of effort in formulating the claim, but it is not set out properly for purposes of a South African court.

I strongly suggest that you get an attorney to assist you in turning your complaint into a proper "particulars of claim". Some of the things wrong are as follows:

Your claim should not be based on "common assault", but rather "damages arising from common assault".

You don't refer to case law in the particulars of claim. 

I don't think that you are 100% on the prescription point. It is not when all of the facts actually came to your knowledge, but rather when could all the facts have reasonably come to your knowledge. I think that your claim has therefore prescribed. But there might be nuances in your case which might mean that it has not. I don't know.

I think that prescription would start running the day after your root canal. But I don't want to debate this with you now. This is something that you need further specific advice on.

There is a lot of "evidence" which is contained in your statement, which should come out.

The particulars of claim merely record the facts which are necessary to sustain your cause of action. Evidence of the assault is led orally to the court during the trial.

You should ask an attorney who specialises in medical negligence cases to assist you with drafting the particulars of claim, and running your court case. You would do yourself a disservice trying to do this yourself. I promise. Most of the medical negligence attorneys would work on this on a contingency fee basis. i.e. you win, they get paid. You lose, they don't get paid.

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Patrick. Thank you for your valuable advice. Please help me to make a criminal case of assault. Please help me to structure my complaint to be acceptable for our courts. I cannot make a medical case. I have seen more than 10 attorneys that do medical cases, and none of them were willing to help me. To make a medical case, I need to find another dentist willing to say in court that my dentist was negligent, and that is impossible because all dentists in South Africa disobey the law. No dentist ever get consent from patients. Nobody discuss products, materials or options with patients. The few who do, are not willing to stand up. Compare it to the highway. Everybody drives too fast and will continue to do so until one is fined. But nobody who drives too fast will stand up against another who drives too fast.
Because nobody is willing to help me, I want to make a criminal case, because then I don't need an attorney or a dentist. If need be, the court will assign such people.
I just hope to be granted my constitutional right to tell my story in open court. Maybe it will cause changes in the dental industry. I don't mind loosing the case because I have nothing left to loose. If a criminal case is the only way I can get to tell my story, then I will use that only option.

Posted by Att. Patrick on 07-11-2017 20:15:43

In order to make a criminal case of assault, you will need to go to your nearest police station and tell one of the Constables there that you want to lay a charge of assault against the dentist. The Constable will take a statement from you, and will write it all down. You will then sign it. The Detective who the case is assigned to will then investigate the complaint. That's all there is to it. 

It is not your concern about structuring your case to make it acceptable to our courts. It is a criminal case. It is "The State v The Dentist", not "You vs the Dentist"

You must go to the police. Open a case. Speak to the Detective. Push him to investigate. 

Good luck!!!!