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[2018] ZAGPJHC 538
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M v Member of the Executive Council for Health of the Gauteng Provincial Government (38426/14) [2018] ZAGPJHC 538 (15 August 2018)
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HIGH
COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Case
No: 38426/14
In
the matter between:
N
M
Applicant
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
HEALTH OF THE GAUTENG
PROVINCIAL
GOVERNMENT
Respondent
Case summary:
Superior Court
Practice – Discovery and the production of documents –
Rule 35(3) of the Uniform Rules of Court –
opposition to
production of documents is not a challenge to entitlement to the
production thereof, but rather to excuse the non-production
thereof
on the grounds that they cannot be found - a probability has not been
shown to exist that the deponents to the respondents’
affidavits are either mistaken or false in their assertions that the
required documents cannot be found - to order the production
of
the required documents would amount to a
brutum
fulmen
.
Application dismissed.
JUDGMENT
MEYER
J
[1]
Having instituted an action against the defendant for damages arising
out of medical negligence, the applicant in this interlocutory
application seeks an order to compel the production of certain
documents, which she had requested in terms of a notice under r
35(3)
of the Uniform Rules of Court. It is common cause that the
applicant was admitted to the Chris Hani Baragwanath Hospital
on 11
November 2010, and that the minor child, on whose behalf she
instituted the action to which this application is interlocutory,
was
born on […] November 2010.
[2]
It is not disputed that the documents requested ‘may be
relevant to any matter in question’. The opposition
to
the relief sought is not to challenge the applicant’s
entitlement to the production of the required documents, but rather
to excuse the non-production thereof on the grounds that they cannot
be found.
[3]
The senior legal administrative officer (legal services) for the
department of health, Gauteng, in an affidavit in response
to the
applicant’s r 35(3) notice, states that the respondent is
‘currently not in possession’ of the required
documents
and ‘does not know whether such documents exist’.
She further states that the respondent-
‘
. . . is diligently searching
through all available records for such documents but has been unable
to find them thus far. However,
should the said records become
available the defendants will make them available to the plaintiff.’
The
acting chief executive officer of the Chris Hani Baragwanath
Hospital, Dr Sifiso Maseko, who is the person in charge of that
health establishment, also deposed to an affidavit in which he states
that all areas had been searched without success and that
the
appointed officials ‘are diligently searching through all
available records for such documents but have been unable thus
far’
to find them. The documents will, so he states, be made available to
the applicant if they are found.
[4]
The applicant contends that the person in charge of a health
establishment is statutorily obliged to ensure that a health record
is created and maintained at that establishment for every user of its
health services and that control measures be set up to ensure
the
safekeeping of those records. (See the
National Health Act 61
of 2003
.) In her founding affidavit the applicant concludes
thus:
‘
17. In the light of the
provisions contained in
section 13
of the Act, the employees of the
Respondent were, by reason of the Applicant’s admission to the
aforesaid hospital and the
subsequent birth of her minor child at the
hospital,
obliged
to ensure that a health record pertaining to the Applicant’s
labour and the birth of the minor child is created and maintained.
18. The Respondent is therefore, in
terms of the above provisions, required to be able to state whether
such records were ever created,
to confirm its current whereabouts
and to grant the Applicant access to such records.’
[5]
Recently Sutherland J had occasioned to consider a similar situation
in this division in
Dube v Member of the Executive Council
(Case
no: 6279/17). Therein he held as follows:
‘
The reason why the
documentation had not been discovered is that the staff of the
hospital, so it is alleged, cannot find the material.
There is a
tender to discover whatever is found, when it is found. The
argument on behalf of the applicant is that this excuse
is
unacceptable, emphasis being placed on the obligation in terms of law
to keep records and the
prima
facie
breach of that duty
is alleged.
In my view the
de facto
position
is deplorable and the idea of a breach of statutory obligations is on
the probabilities in my view a plain fact. Notwithstanding
these
considerations, the ambit of
rule 35
of the uniform rules is limited
to imposing a duty on a litigant to discover what it has got.
In circumstances where it ought to
have a document but cannot access it and may even confess to not
knowing whether or not it still
exists, and is still in its
possession, the duty imposed by
rule 35
requires a party merely to
frankly declare what the true state of affairs is at the time that
discovery is demanded. Ostensibly
that is what the respondent
has done. Assuming that the defendant/respondent is rightly to
be rebuked for its poor record
keeping it has not violated
rule 35
by
stating that it cannot lay its hands on the relevant documentation.
In the absence of facts from which I
can on these papers infer the affidavit of the defendant is
untruthful, the plaintiff in such
circumstances must unhappily accept
the position as described, however disgraceful the conduct of the
respondent, objectively,
may be.
Rule 35
itself plays no role
in the disciplining of state officials to perform their statutory
duties. There may indeed be other
remedies in order to compel
compliance with those statutory duties but they do not fall within
the ambit of
rule 35.
In the circumstances I have taken the
view that there is no useful purpose in granting the relief which is
sought, which would achieve
no more than to provoke a contempt
application which would be readily answered by the same explanation
which is proffered now.
In the circumstances, therefore, the
application must be dismissed.’
[6]
I respectfully agree with the sentiments expressed and the findings
made by Sutherland J in the above-quoted passage.
In casu
a
probability has not been shown to exist that the deponents to the
respondents’ affidavits are either mistaken or false
in their
assertions that the required documents cannot be found. (See
Richardson’s Woolwasheries v Minister of Agriculture
1971
(4) SA 62
(ECD) at 67 D – F.) It would, therefore, amount to a
brutum fulmen
to grant to the applicant the relief she seeks
in this interlocutory application.
[7]
In the result the following order is made:
The application is
dismissed with costs.
______________________________
P.A.
MEYER
JUDGE OF THE HIGH
COURT
Date
of hearing: 14 August 2018
Date
of judgment: 15 August 2018
Counsel
for Applicant:
Adv
D Coetzee
Instructed
by: Wim Krynauw Attorneys, Johannesburg
Counsel
for Respondent: Adv N Makopo
Instructed by: State Attorney,
Johannesburg