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[2021] ZAKZDHC 33
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Mnisi v Hibiscus Private Hospital (Pty) Limited and Others (D4992/2018) [2021] ZAKZDHC 33 (23 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO. D4992/2018
In
the matter between:
GODFREY
MNISI APPLICANT
and
HIBISCUS
PRIVATE HOSPITAL (PTY) LIMITED FIRST
RESPONDENT
MEC
FOR DEPARTMENT OF HEALTH,
KWAZULU-NATAL SECOND
RESPONDENT
UMDONI
DISTRICT MUNICIPALITY THIRD
RESPONDENT
ORDER
The
following order shall issue:
1.
The
application is dismissed with costs, including those consequent upon
the employment of senior counsel.
2.
Costs
to include the reserved costs of the application in case number
D3222/2018 (the application for an interim interdict) as well
as the
costs reserved on 20 August 2021 when the review was adjourned.
JUDGMENT
Steyn
J:
[1] The
applicant has brought an application seeking the following relief:
‘
1.
That, in terms of Section 9 of Act 3 of 2000, the
time period contemplated in terms of Section 7 of the Act
be and is
hereby extended in respect of this application;
2.
That the second respondent’s approval of the first respondent’s
application in terms of section
7 (1) of Regulation 158 of 1980, read
with section 44 of Health Act 1977 be and is hereby reviewed and set
aside;
3.
That the second respondent’s approval for the registration of
the first respondent’s private
health establishment in terms of
Section 7 (2) (ii) read with Section 2 of the said Regulation, be and
is hereby reviewed and set
aside;
4.
That the second respondent’s approval of first respondent’s
plans for its private health
establishment, in terms of section 7 (2)
(ii) of the said Regulation, be and is hereby reviewed and set aside;
5.
That the second respondent be and is hereby to pay the costs of this
application save that, in the event
of the first respondent opposing
the application, both respondents be ordered to pay the costs of the
application jointly and severally’
[2] The
application is based on the fact that the applicant obtained approval
‘in principal’ to establish
a private hospital in
Scottburgh. He contends that Scottburgh is not large enough to make
it economically viable for two private
hospitals to function. It is
submitted on his behalf that the second respondent should not have
approved the development of the
first respondent, the Hibiscus
Private Hospital (Hibiscus Hospital) facility. Presently, the first
respondent has partially completed
the construction of a private
medical facility (a day surgery and sub-acute care facility) on
immovable property in Scottburgh.
[3] The
first respondent opposes the review application on the following
grounds:
(a)
The applicant failed to prosecute the review application timeously in
terms of the Promotion of Administrative
Justice Act 3 of 2000
(PAJA); and
(b)
There is no merit in the review application since it is primarily
based on an incorrect legal assumptions.
[4] Before
dealing with the merits of the review it is necessary to set out the
background facts to this application.
The applicant had previously
obtained an interim order directing the first respondent to cease all
construction or building-related
activity on ERF 599 Scottburgh,
pending an application to review the decision to grant permission to
develop a private health facility.
This order was discharged by
Mnguni J, and written reasons were delivered on 13 March 2020. The
background facts are comprehensively
summarised in paras 4 to 13 of
Mnguni J’s judgment and I do not intend to summarise them
again. I repeat the relevant paragraphs
below:
‘
[4]
The background facts in this matter are for the most part not in
dispute. In 2010 or 2011 the applicant made
an application to the
second respondent for the approval to construct or develop a private
hospital in Scottburgh. Because of the
moratorium in place at the
time his application was not considered. Sometime in 2014 the
moratorium was lifted. The applicant then
made a fresh application
for construction of such facility. On 30 June 2015 he received
written confirmation of the “in principle”
approval for
the development of a private hospital comprising 240 beds, seven
obstetric unit rooms, nine theatres and one casualty
department on
certain conditions outlined in that letter.
[5]
By notice dated 6 February 2015 the first respondent published in a
local newspaper its intention to establish
a day and sub-acute
hospital in Scottburgh. The notice stipulated that a copy of the
application and its accompanying documents
would be open for
inspection by interested persons who were invited to lodge written
representations or objections to the application,
and that if they
did not do so, they would be disqualified from participating in the
process. On 11 September 2015 the first respondent
made an
application to the second respondent for the establishment of a
private health facility called “day beds” and
“sub-acute
beds”.
[6]
On 18 May 2016 the second respondent approved the first respondent’s
application for the development
of 40 day beds, 40 sub-acute beds and
two unattached minor theatres. Towards the end of 2016 the applicant
became aware that approval
for the development of the day surgery and
sub-acute facility had been granted to the first respondent. He
established further
that the approval had also been granted to
Netcare Umdoni to develop a private hospital facility within the
third respondent’s
area of jurisdiction. In an undated letter
addressed to the third respondent, and received on 15 July 2016, the
applicant recorded
his objection to the establishment of two private
hospitals in the third respondent’s jurisdiction pointing out
that both
could not function simultaneously and adequately.
[7]
The applicant started communicating with the third respondent about
these approvals on 1 October 2016. On
28 March 2017 the applicant
gave a presentation of his proposed development to medical
practitioners. Similarly, Richard Mills
(Mr Mills) of the first
respondent did a presentation of its proposed development to the same
audience.
[8]
Concerned at the approval of two other applications in the same area,
the applicant approached the then Head
of Department Sifiso Mtshali
(Mr Mtshali) to discuss these developments and to find out the basis
on which two approvals were granted.
The applicant asserted that Mr
Mtshali pleaded ignorance stating that he had not been aware that he
had approved more than one
application for the area. Their meeting
ended on the basis that Mr Mtshali would look into the matter and
“would do something
about it”. That “something”
that Mr Mtshali said he would do was never explained in the
applicant’s founding
affidavit.
[9]
After that meeting Mr Mtshali did not give the applicant any progress
report on the matter. Consequently,
the applicant decided to approach
the then Member of the Executive Committee the second respondent, Dr
Dlomo. The applicant and
Dr Dlomo held a meeting on 20 January 2017.
The applicant asserted that in that meeting Dr Dlomo indicated to him
that he was not
aware of any developments and had expressed his
concern at the fact that more than one approval for the same area was
granted.
The applicant asserted that at the end of the meeting Dr
Dlomo advised him that he should continue further approaches to Mr
Mtshali.
[10]
By letter dated 11 April 2017 addressed to the first respondent’s
legal representative by the applicant’s
then attorneys
Buthelezi Inc, the applicant demanded that the first respondent call
off a further presentation that it wants to
present in respect of its
development. I record that this demonstrates that by this time the
applicant had the benefit of legal
representation and the second
respondent had already approved the first respondent’s
application. By 12 April 2017 the applicant’s
attorney knew
that the first respondent intended to proceed with the construction
of its day surgery and sub-acute facility and
threatened an
application to court. During September 2017 the applicant knew that
the development of the first respondent’s
day surgery and
sub-acute facility was taking place in that the levelling of the land
on the site was taking place and that there
was an advertising board
portraying the first respondent’s facility to be constructed on
the site.
[11]
Those developments caused the applicant to again consult with his
erstwhile attorneys Anushka Maharaj and Associates
on 19 September
2017. In January 2018 the applicant noticed renewed activity at the
site and it became clear to him that the development
was continuing.
His enquiries with the third respondent’s office revealed that
the first respondent’s plans for the
construction of the day
surgery and sub-acute facility had been approved by the third
respondent. On 19 January 2018 the applicant
again consulted with his
erstwhile legal representatives. As already stated,
the
application for review was however only brought on 7 May 2018
.
[12]
Although, more than two consultations were held between the applicant
and his legal representatives, his explanation
for the delay in
bringing the review proceedings seemed to be anchored on the
following. From the discussions he had had with the
third
respondent’s representatives his impression was that the said
representatives would take some action, although he does
not explain
what that action would be. He asserted that he was not aware of his
rights and the procedure involved in challenging
the decisions taken
by the second respondent. Alarmingly, he asserted that his rights to
review were also not part of the discussion
he had with his erstwhile
attorneys Buthelezi Inc and that at that stage attention was only
given to prevent the first respondent’s
further presentation
from taking place.
[13]
It is common cause that the main reason upon which the applicant
bases his application is that he had previously obtained
approval “in
principal” to establish a private hospital in Scottburgh. He
contended that Scottburgh is not large enough
to support or make
economically viable two private hospital. On that basis, he contended
that the second respondent should not
have approved the development
of the first respondent’s facility.’
[1]
(My
emphasis.)
PAJA
[5] I
shall now return to the grounds of review in terms of PAJA. PAJA is
premised on administrative action which
is lawful, reasonable and
procedurally fair.
[2]
Section
6(2) of PAJA lists the grounds on which administrative actions may be
reviewed and s 7 regulates the time limits. Important
to the
application in casu is the time limit of 180 days from ‘which
the person concerned was informed of the administrative
action. . .
and the reasons for it or might reasonably have been expected to have
become aware of the action and the reasons’.
[3]
[6] In
terms of s 9(1)
(b)
of PAJA, the period of 180 days referred to
in s 7 ‘may be extended for a fixed period, by agreement
between the parties
or, failing such agreement, by a court or
tribunal on application by the person or administrator concerned’.
In terms of
s 9(2) of PAJA, such extension may be granted where the
interests of justice so require it.
[7] In
Asla
Construction (Pty) Ltd v Buffalo City Metropolitan Municipality
,
[4]
the Supreme Court of Appeal (SCA) envisaged a substantive application
to be:
‘
The
respondent therefore required an extension of the period fixed by
PAJA within which to bring the application for review.
Section
9 contemplates a substantive application to the relevant court or
tribunal, by the person or administrator concerned. That
application
ought to have been made by the respondent when it first approached
the court for relief. It did not do so
.
Once the appellant had raised the issue of compliance with PAJA, the
respondent was obliged to launch an application in terms
of this
section for an extension of the fixed period. This application could
thereafter have been consolidated with the review
application. The
correct procedure would have ensured that the relevant facts were
placed before the court a quo, to enable it
to exercise its
discretion properly.’
[5]
(My emphasis.)
The
Constitutional Court in the appeal of the same case, however, held
that regard be had to the merits when the delay is considered.
[6]
[8] In
Department
of Transport & others v Tasima (Pty) Ltd
,
[7]
the Constitutional Court confirmed that ‘when an applicant
seeks condonation for delay, a full explanation that covers the
“entire period” must be provided’.
[8]
In addition, the onus rests on the applicant to explain why the delay
should not be regarded as unreasonable or undue. The Constitutional
Court emphasised the duties of a court considering a delay, and in
para 160 of the judgment stated:
‘
While
a court “should be slow to allow procedural obstacles to
prevent it from looking into a challenge to the lawfulness
of an
exercise of public power”, it is equally a feature of the rule
of law that
undue delay should not be
tolerated. Delay can prejudice the respondent, weaken the ability of
a court to consider the merits of
a review, and undermine the public
interest in bringing certainty and finality to administrative
action
. A court should
therefore exhibit vigilance, consideration and propriety before
overlooking a late review, reactive or otherwise.’
(Footnotes
omitted, my emphasis.)
Delay
[9] It
is evident from the papers filed by the first respondent that a
notice was published in a local newspaper
on 6 February 2015,
indicating the first respondent’s intention to establish a new
day hospital in Scottburgh. The notice
stipulated that the
application and its accompanying documents would be open for
inspection by interested persons, and invited
those interested to
lodge written representations or objections to the application. Those
failing to lodge representations or objections
would be disqualified
from participating in the process.
[10] For
sake of completeness this is what was published on 6 February 2015:
‘
NOTICE
Is hereby given of the intention to establish a New Day Hospital,
located in Scottburgh, KwaZulu-Natal. The proposed facility
will have
2 minor theatres, 20 day beds and 20 sub-acute beds for which an
application will be lodged with the Department of Health
KZN as set
in terms of the National Health Act (Act No. 61 of 2003).
A
copy of the application and its accompanying documents will be open
for inspection by interested members of the public between
the hours
of 08h00 and 16h00 Mondays to Friday (excluding Public Holidays) at
the offices of Hibiscus Private Hospital, George
Street, Port
Shepstone.
Members
of the Public are invited to lodge written representations or
objections to this application via registered mail with the
applicant
(address below) within 21 days of the appearance of this notice
.
Should you fail to lodge or forward comments by 24 February 2015, you
should disqualify from participating in the process.’
(My
emphasis.)
[11] The
applicant avers that he became aware, towards the end of 2016, that
approval for the development of the
day surgery and sub-acute
facility had been granted to Hibiscus Hospital. No specific date in
2016 has been disclosed by him. However,
on 15 July 2016, the
applicant wrote to the third respondent and recognised that approval
had been granted to others to develop
private hospital facilities
within the municipal area. He then communicated with the Department
of Health about the three approvals.
Importantly, on 28 March 2017,
the applicant gave a presentation of his proposed development to a
group of medical practitioners.
At that time, he was aware of the
fact that the first respondent was also making a presentation to the
group about the Hibiscus
Hospital’s development.
[12] It
is trite that the reasonableness of the delay is assessed by how long
it took to institute proceedings
once a party became aware of the
action. In the assessment the court will conduct a factual enquiry
and consider the circumstances
of the case. In the well-known case of
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
,
[9]
the appellate division emphasised the factors to be considered in a
review relying on
Hassan
& Co. v Potchefstroom Municipality
,
[10]
stating:
‘“
In
my opinion there are two factors to be considered as to whether or
not to entertain an application for review, viz., (i) whether
there
has been unreasonable delay, and (ii) whether in the nature and
circumstances of the case it is likely that the other side
had been
prejudiced, the more important factor being that of prejudice…”’
I
am mindful of the fact that this application is governed by PAJA,
which has changed the administrative landscape since the
Wolgroeiers
judgment, however, prejudice caused to the other party should still
be considered.
[13] In
Madikizela-Mandela
v Executors, Estate Late Mandela & others
,
[11]
prejudice
to a party was re-affirmed. The SCA held:
‘
[9]
. . .First, the failure to bring a review within a reasonable time
may cause prejudice to the respondent.
Second, there is a
public-interest element in the finality of administrative decisions
and the performance of administrative functions.
The application of
the rule requires consideration of two questions. Namely, was there
an unreasonable delay? If so, should
the delay in all the
circumstances be condoned?
[10]
In
Van
Zyl
para
48 it was stated that the reasonableness or unreasonableness of a
delay is dependent on the facts and circumstances of
each case.
It
is a matter of a factual enquiry upon which a value judgment is
called for in the light of all the relevant circumstances, including
any explanation that is offered for the delay
.
It is an investigation into the facts of the matter in order to
determine whether, in all the circumstances of the case, the delay
was reasonable. In
Gqwetha
v Transkei Development Corporation Ltd and Others
2006
(2) SA 603
(SCA). . .para 24 it was pointed out that a
material fact to be taken into account in making that value judgment
was the nature
of the challenged decision, as not all decisions have
the same potential for prejudice which may result from their being
set aside.
It was emphasised in
Van
Zyl
[para
48] that, although this involved the exercise of a value
judgment, it was not to be equated with the judicial discretion
involved in the next question if it arose, namely whether a delay
which has been found to be unreasonable should be condoned.’
(My emphasis.)
[14] I
now turn to the facts. On 11 April 2017, the attorneys who acted on
the applicant’s behalf, advised
him of his rights. That much is
clear from the correspondence that was sent to the medical doctors.
It reads:
‘
We
act on behalf of Dr Godfrey Mnisi’, in this matter. Our
instructions are to plead with your goodselves to stop convening
the
meeting of medical doctors at Scottsburgh for the abovementioned
presentation. The reasons for our client pleading with you
to stop
immediately and cancel this meeting are as follows:
1.
Our client is the only legitimate licensed holder
for the
construction of a private hospital in Umdoni area issued by the
Department of Health, KZN in 2015;
2.
He is
challenging the legitimacy and the authority of all other
licenses that were subsequently issued without his knowledge and
approval
;
3.
He has already taken the matter up with the relevant authorities of
the Department of Health and the
matter has not yet been finalized;
4.
He strongly believes that any other operation intended for the
construction of a private hospital in this area, infringes upon his
rights as he has incurred huge amounts towards preparations for the
construction of his private hospita
l;
5.
This huge task has been presented and discussed with a number of
medical doctors in this area and many
of whom have pledged their
support towards the construction of Dr Mnisi’s private
hospital;
6.
The local Municipal Council and other relevant authorities know and
approve of Dr Mnisi’s plans
and any actions outside his plans
will cause irreparable financial loss and damage and frustrate all
efforts towards the construction
of the hospital for the benefit of
this community.
Wherefore
we are instructed, as we hereby do, to advise you to stop calling and
convening the meeting of the 18
th
April 2017 immediately. Please communicate your intentions not to
proceed with Dr Mnisi within 24 hours, failing which our client
will
be compelled to approach the court of law to enforce and protect his
rights
.’
[12]
(My
emphasis.)
[15] In
my view, the review clock started ticking towards the end of 2016,
when the applicant was aware of the
decision taken by the second
respondent. In fact, the applicant delayed the review application for
almost a year without giving
a reasonable explanation for the
extraordinary delay. Mr
Blomkamp
for the applicant had to concede at the time of arguing the
application that the applicant’s founding affidavit is silent
on the reasons for the delay.
[13]
[16] It
is necessary to also deal with what the applicant stated in his
supplementary affidavit. In the supplementary
affidavit the applicant
lists the following reasons for delaying the review:
‘
33.1
Upon realising that the Second Respondent took a decision to award
the First Respondent a license to operate a
private hospital, I
approached the members of the Second Respondent on the issue. This
led to various engagements with the Respondents
and later court
battles.
33.2
This Honourable Court eventually granted an interdict in my favour
stopping the First Respondent from developing
a private hospital
pending review.
33.3
On 18
th
October 2019, the interdict was discharged. Prior
to that, there were various settlement proposals initiated by the
First Respondent
with the knowledge of the Second respondent.
Unfortunately, the attempts failed to yield any results.
33.4
It is my humble submission that the delay of one year is not
inordinate in the circumstances were (sic) the First
Respondent has
not operated.’
[14]
[17] It
is also necessary to focus on what was stated by the applicant in his
replying affidavit to justify the
delay in bringing the review
application:
‘
Taking
the factual matrix of this matter into consideration it can be said
that the interest of justice justifies the extension
of the time
period within which this application was brought. This is because
from the time that I was aware of the granting of
the approval of the
license of the first respondent, I took several steps to resolve the
matter with the representatives of the
second and third
respondent.’
[15]
[18] Further,
in para 28 of the very same affidavit it is clear that the applicant
conflates the concepts of being
aware and being given reasons for the
decision taken by the second respondent. This is what he says:
‘
It
is misdirected for the first respondent to seek dismissal of this
application on grounds that it was after the expiry of 180
days. This
is because the running of the 180 days was to begin when I was aware
of the decision, its reasons and my right to appeal
as a party with a
legitimate expectation. There was no point where I was given the
reasons for the decision, regardless of several
attempts to have the
matter resolved without resorting to bringing this application.’
[16]
The
applicant avers that he was not aware of his rights to review the
second respondent’s decision despite the fact that he
wanted to
stop the development of the first respondent at all times. The last
paragraph of annexure M, supra, most certainly shows
that he was
aware of his rights and would not hesitate to approach a court to
enforce his rights.
[19] It
is also necessary to focus on the prejudice caused to the first
respondent when the applicant failed to
institute review proceedings
timeously. The first respondent states the damages incurred in
anticipation of the outcome of the
review application in its
answering affidavit. This is what is stated:
‘
24.
Consequently, the First Respondent suffers damages, and will continue
to do so pending the outcome of the review
application,
inter alia
from:
(a) a
delay in the completion of the facility and the commissioning
thereof, with a concomitant delay on
exposure to finance costs and a
delay in commencing with business to recoup its investments;
(b) an
exposure to additional claims by the contractor; and
(c)
additional
building costs to repair damage to the works as a result of the
buildings being exposed to the elements.’
[17]
In
addition, the first respondent estimated damages at R680 000 per
month in delaying the review application.
[20] Evidently,
the 180 day period in terms of s 7(1) of PAJA expired before
mid-2017, and the applicant only launched
the review on 7 May 2018.
Absent any reasonable explanation for the delay, the application for
any condonation fails and so should
the review application.
[21] Once
the first respondent raised the issue of non-compliance with s 7 of
PAJA, the applicant ought to have
brought a substantive application
explaining the inordinate delay and his reasons for electing not to
bring it, shortly after he
became aware of the first respondent’s
approval to develop a health care facility. Should I be wrong in my
decision regarding
the fact that the review is procedurally flawed
because of the unreasonable delay, it is necessary to also deal with
the merits
of the review. I do so in light of the
Buffalo
City
decision above.
[18]
The
merits of the review
[22] The
applicant claims, inter alia, that the second respondent’s
decisions are reviewable on the following
grounds:
(a)
The decisions constitute actions that are procedurally unfair (s
6(2)
(c)
of PAJA);
(b)
Relevant considerations were not considered (s 6(2)
(e)
of
PAJA);
(c)
The decisions were taken arbitrarily (s 6(2)
(e)
(vi) of PAJA);
and
(d)
The decisions were irrational (s 6(2)
(f)
of PAJA).
I
shall now consider each of these grounds.
[23] What
constitutes procedural fairness has been crystallised in a number of
decisions, and generally includes
the following factors:
(a)
The objects or administrative scheme of the statute;
(b)
The nature of the decision(s) to be taken and of the
decision-making bodies involved;
(c)
The interests at stake and the impact of the exercise of
powers on these interests;
(d)
The circumstances of the specific case; and
(e)
The urgency with which action has to be taken.
[19]
[24] The
applicant refers to procedural fairness in para 72.2 of his founding
affidavit in the following terms:
‘
72.
Each of these three decisions taken by the second respondent:
72.1
constitutes administrative action which materially affects my right
or legitimate expectorations concerning
the approvals I obtained from
the second respondent;
72.2
should not have been taken without first:
72.2.1.
giving me notice of these decisions intended to be taken
;
72.2.2.
providing
me with a reasonable opportunity to make representations
,
this particularly in circumstances where I had confronted Dr Dhlomo
and Mr Mtshali in relation to the other approvals granted
and
when they undertook to handle the matter with due consideration of my
interests
.’
[20]
(My emphasis.)
[25] The
applicant, in his submission that he should have been given notice
and an opportunity to challenge any
decision that allowed the first
respondent to build a facility, is based on his interpretation of
legislation. It appears that
he is relying on reg 158 as published
under Government Notice R158, dated 1 February 1980 as amended.
[21]
This issue was however no longer vigorously argued when the matter
was heard. I shall deal with the regulation briefly for the
sake of
completeness.
[26] In
my view, the requirements in reg 158 are applicable to the
registration of a private facility.
[22]
It appears ex facie the papers that the applicant is of the view that
the following actions are one and the same thing:
(a)
The provisions dealing with the construction or development of a
private healthcare facility; and
(b)
The requirements pertaining to a licence to provide such services.
These
two concepts are different in nature taking into account the legal
provisions. As a fellow competitor for the provision of
healthcare
services the applicant has not established a right to receive notice
or receive reasons to challenge the permission
given by the second
respondent that was granted to develop another facility. Assuming
that I am wrong in finding that he need not
have received notice then
this challenge should fail in the light of the notice that was
published on 6 February 2015 in the newspaper.
[23]
[27] The
challenge under 6(2)
(e)
appears to be based on the applicant’s
contention that the second respondent should not have granted
approval for two facilities
in the same area. The record filed by the
second respondent shows that the persons tasked with the
consideration of applications
were mindful of the fact that more than
one application should be considered. The review record shows that
the committee considered
the fact that multiple licences were to be
considered on 6 July 2015, 21 September 2015 and 5 October 2015. The
record shows that
there is no merit in the applicant’s
challenge in terms of s 6(2)
(e)
.
[28] The
challenge of the decisions being taken arbitrarily is equally not
borne out by the review record. It is
undisputed that:
(a)
Scottburgh is in need of a private facility;
(b)
The committee met on a number of occasions to consider the different
applications; and
(c)
The members of the committee were aware of the various applications
and considered them.
It
cannot be said that any decision was taken arbitrarily. In fact, the
committee considering the applications recognised and considered
the
fact that they had recently approved the Mnisi Seaview Facility when
they dealt with the first respondent’s application.
[24]
It is necessary to refer to the judgment of Mnguni J again to deal
with this point, where it was succinctly stated:
‘
(b)
[I]mportantly, the feasibility studies conducted for both projects
reveal under the heading “Calculation of
Estimated Private Beds
for Ugu District” at pg 76 and pg 113 of the reports
respectively state: “Based on the above
population data from
Stats SA 2013, the finding is that there is a potential need between
59 and 549 private beds in the Ugu District
and surrounding
municipality areas.”
This evidence seemed to contradict the
applicant’s contention that Ugu District is not large enough to
support or make economically
viable two private hospitals
.
[36]
In passing I am of the prima facie view that the review application
is not only misguided but more realistically myopic
because on the
papers
before
me there seems to be a substantial difference between the first
respondent’s day surgery and sub-acute facility and
that of the
applicant’s intended private hospital
.
As I see it, the applicant has not adequately explained why he sees
the two facilities to be in direct competition with each other.’
[25]
(My
emphasis.)
[29] On
the issue of rationality, the Constitutional Court held in
Pharmaceutical
Manufacturers Association of SA & another: In re
Ex
Parte President of the Republic of South Africa & others
:
[26]
‘
Rationality
in this sense is a minimum threshold requirement applicable to the
exercise of all public power by members of the Executive
and other
functionaries. Action that fails to pass this threshold is
inconsistent with the requirements of our Constitution and
therefore
unlawful. The setting of this standard does not mean that the Courts
can or should substitute their opinions as to what
is appropriate for
the opinions of those in whom the power has been vested. As long as
the purpose sought to be achieved by the
exercise of public power is
within the authority of the functionary, and as long as the
functionary’s decision, viewed objectively,
is rational, a
Court cannot interfere with the decision simply because it disagrees
with it or considers that the power was exercised
inappropriately. A
decision that is objectively irrational is likely to be made only
rarely but, if this does occur, a Court
has the power to intervene
and set aside the irrational decision. This is such a case. Indeed,
no rational basis for the decision
was suggested. On the contrary,
the President himself approached the Court urgently, with the support
of the Minister of Health
and the professional associations most
directly affected by the Act, contending that a fundamental error had
been made and that
the entire regulatory structure relating to
medicines and the control of medicines had as a result been rendered
unworkable. In
such circumstances, it would be strange indeed if a
Court did not have the power to set aside a decision that is so
clearly irrational.’
(Footnote omitted.)
[30] In
light of the above, the applicant’s contention that the second
respondent did not consider that other
approvals had been granted is
not borne out by the record and has to fail. In fact, from the review
record it is clear that the
second respondent considered relevant
facts and exercised its powers rationally when it decided to grant
the first respondent permission
to develop a private day surgery and
sub-acute care facility in Scottburgh.
Order
[31]
The
following order shall issue:
1.
The
application is dismissed with costs, including those consequent upon
the employment of senior counsel.
2.
Costs
to include the reserved costs of the application in case number
D3222/2018 (the application for an interim interdict) as well
as the
costs reserved on 20 August 2021 when the review was adjourned.
Steyn
J
APPEARANCES
Counsel
for the applicant: Mr
PJ Blomkamp SC
Instructed
by: Shehnaaz
Patel & Co
145
Scott Street
Scottburgh
Counsel
for the 1
st
respondent: Mr
AV Voormolen SC
Instructed
by: Cox
Yeats
Ncondo
Chambers
Vuna
Close
Umhlanga
Ridge, Durban
Ref:R
Hoal/R Evans/ 07H134002
Date
of Hearing: 16
September 2021
Date
of Judgment: 23
September 2021
[1]
See pages 2-5 of Mnguni J’s judgment delivered on 13 March
2020.
[2]
See
s 33 of the Constitution of the Republic of South Africa, 1996, that
reads:
‘
(1)
Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
(2)
Everyone whose rights have been adversely affected by administrative
action has the right to be given written reasons.
(3)
National legislation must be enacted to give effect to these rights,
and must—
(a)
provide for the review of administrative action by a court or, where
appropriate, an independent and impartial tribunal;
(b)
impose a duty on the state to give effect to the rights in
subsections (1) and (2); and
(c)
promote an efficient administration.’
[3]
See s 7(1)
(b)
of PAJA.
Also
see
Brashville
Properties 5 (Pty) Ltd v Colmant & others
[2015]
JOL 33555
(SCA) para 11 where it was held:
‘“
Administrative
action means any decision of an administrative nature made. . .under
an empowering provision. . .by an organ of
State, when exercising a
power in terms of the Constitution. . . .”’
[4]
Asla
Construction (Pty) Ltd v Buffalo City Metropolitan Municipality
2017
(6) SA 360
(SCA).
[5]
Ibid
para 8.
[6]
See
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
2019
(4) SA 331
(CC) para 40.
[7]
Department
of Transport & others v Tasima (Pty) Ltd
2017
(2) SA 622 (CC).
[8]
Footnote omitted.
Ibid
para 153.
[9]
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13
(A) at 28G-H.
[10]
Hassan
& Co. v Potchefstroom Municipality
1928
TPD 827.
[11]
Madikizela-Mandela
v Executors, Estate Late Mandela & others
2018
(4) SA 86 (SCA).
[12]
See annexure M page 58.
[13]
See
Khumalo
& another v MEC for Education, KwaZulu-Natal
2014
(5) SA 579
(CC) paras 49-51.
[14]
See
para 33 pages 511-512.
[15]
See para 25 page 527
.
[16]
See
para 28 page 528.
[17]
See
page 166.
[18]
See
para 13.
[19]
For
a more detailed discussion of procedural fairness, see JR de Ville
Judicial
Review of Administrative Action in South Africa
(revised first edition) (2005) at 246-261.
[20]
See
pages 23 and 24.
[21]
GN R158,
GG
6832,
1 February 1980 as amended.
[22]
See
ss 2-6 and s 14 of reg 158.
[23]
See
the publication above para 10.
[24]
See
review record page 302.
[25]
See
Mnguni J judgment supra at paras 35 and 36.
[26]
Pharmaceutical
Manufacturers Association of SA & another: In re
Ex
Parte President of the Republic of South Africa & others
[2000] ZACC 1
;
2000
(2) SA 674
(CC) para 90.