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[2022] ZAFSHC 202
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L.B obo T.B v Medical Superintendent of Universitas Academic Hospital and Others (1154/2022) [2022] ZAFSHC 202 (18 August 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1154/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
L[....]
B[....] obo T[....] B[....]
Applicant
And
THE
MEDICAL SUPERINTENDENT OF
UNIVERSITAS
ACADEMIC HOSPITAL
1
st
Respondent
THE CHIEF EXECUTIVE
OFFICER OF
UNIVERSITAS
ACADEMIC HOSPITAL
2
nd
Respondent
MEC:
FREE STATE DEPARTMENT OF HEALTH
3
rd
Respondent
HEARD
ON:
2
JUNE 2022
JUDGEMENT
BY:
LITHEKO, AJ
DELIVERED
ON:
18
AUGUST 2022
[1]
The applicant brought an application
contemplated in section 78 of the Promotion of Access to Information
Act 2 of 2000, (PAIA),
for an order in the following terms:
“
1.
That the respondents be ordered to provide the
applicant’s attorneys with:
1.1 The
complete medical records, including, admission records, hospital
records, discharge records, clinical
notes, neonatal records,
antenatal records, maternity records, delivery records, scans,
treatment records, and all other supporting
documents pertaining to
the treatment received by L[....] B[....] (the applicant) with
Identity Number: [....]and T[....] B[....]
(the minor) with Identity
Number: [....] from MAY 2014, within ten (10) days from date of
service of the order.
1.2
That the first and second respondents be made to pay the costs of the
application on an attorney and client
scale.
1.3
….”
[1]
[2]
In the applicant’s founding affidavit,
deposed by the applicant’s attorney, Johann Wilhelm Joubert, it
is alleged that
the applicant instructed the deponent to investigate
a possible medical negligence claim arising out of what is described
in paragraph
5 thereof as follows:
“
On
or about May 2014 the applicant was admitted to Universitas Hospital
in a labour with the minor. The minor was born on 14 May
2014 with a
disability because of possible medical negligence.”
[2]
[3]
On the 11
th
February 2020 the applicant requested the
records mentioned in para 1 above from the respondents and, upon
failure by the respondent
to provide same, she noted an appeal in
terms of section 74 of PAIA.
[4]
On the 17
th
February 2021 the respondents provided the applicant with the
requested records which the deponent, upon his perusal thereof,
discovered that they were not the correct records. He thereupon
addressed a letter to the respondents alerting them of that fact
and
the latter did not respond to the letter.
[3]
[5]
This application is based on the respondents’ said failure to
provide the applicant
with the requested information.
[6]
The respondents oppose the application on the
grounds that:
6.1. The
respondents do not have
locus standi in judicio
on the grounds
that the minor child, T[....] B[....], was born in K[....], in the
Northern Cape Province and not at Universitas
Hospital, situated in
Bloemfontein in the Free State province.
6.2 The
applicant’s attorneys do not have the authority to act on
behalf of the applicant.
6.3 The
applicant has been provided with all the documents and information in
the possession of the respondents pertaining
to the applicant’s
child’s admission and treatment at the Universitas Hospital.
[7]
Section 82 of the PAIA provides that a court hearing the application
in terms of section
78 may grant any order that is just and
equitable, including orders:
“
(a) confirming,
amending, or setting aside the decision, which is the subject of the
application concerned,
(b) requiring from the
information officer or relevant authority of a public body or the
head of a private body to take such action
or to refrain from taking
such action as the court considers necessary within a period
mentioned in the order,
(c) granting an
interdict, interim or specific relief, a declaratory order or
compensation,
(d) as to costs…”
[8]
PAIA gives effect to the constitutional right of access to
information which is held
by the state and private bodies. It
encourages a culture of transparency and accountability in public and
private bodies by giving
effect to the right of access to
information, enabling those who seek information from the state or
private bodies to exercise
and protect their rights effectively.
[9]
The respondents accept that they have information in their possession
relating to
the admission of the applicant at Universitas
Hospital.
[4]
However, in his
answering affidavit, the deputy information officer states further
that, “
there
are no records which exist or could be traced to corroborate the
allegation that the applicant was admitted at Universitas
Hospital on
the 14
th
May 2014 while she was in labour with a minor child.”
In the replying affidavit, the applicant also confirms, contrary to
what was stated in the founding affidavit, that when admitted
at the
Universitas Hospital, she was with the minor child. She was not in
labour.
[10]
The applicant requested the following information
from the respondent on
Form A: Request for access to record of
public body:
“
All general
medical records and/or clinical notes and/or admission records and/or
scans and/or treatment records regarding treatment
the patient
received at your hospital.”
[11]
The further particulars provided by the applicant in Form A were
that:
“
The patient was
admitted in May 2014, kindly provide us with medical records from the
admission date until the discharge date of
the patients including
scans, labour records, neonatal records, post-natal records,
ante-natal records, maternity case records,
NICU records, and all
other supporting documents and records.”
[12]
In their letter dated the 4
th
August 2021, the applicant’s
attorneys state that they “
specifically requested the
medical records of 26
th
May 2014,
specifically the maternity case, labour records, sonar scans,
admission, neo-natal records, ante-natal records.”
In
response to this the respondent stated that on the 26
th
May 2014 the minor child, T[....] B[....] was admitted as an
outpatient at the Plastic Surgery Clinic and provided the applicant
with information relating to that admission. It is important to note
that this information does not relate to birth of the child.
[13]
The applicant requested records pertaining to the
birth and concomitant treatment of T[....] B[....] and
L[....]
B[....] at Universitas Hospital. The documents in support of the
request however disclose that the birth of T[....] B[....]
did not
occur at Universitas Hospital but at B[....]2, K[....] in the
Northern Cape province. The applicant admits this fact in
the
replying affidavit but allege that the child was transferred to
Universitas Hospital on the same day of her birth. This is
in
conflict with the contents of the letter referred to above wherein
the applicant’s attorneys mention that the specific
records
that were sought were those of the 26
th
May 2014.
[14]
The applicant does not state circumstances whereunder it is alleged
that the records of the birth
which occurred in K[....], in the
Northern Cape would be kept by Universitas Hospital in Bloemfontein.
[15]
It also appears
ex
facie
the affidavit of Zacharia Mashilo that the records that were
requested from Tshwaragano Hospital, regarding the applicant and her
minor child related to their treatment at that Hospital during
February 2014.
[5]
It is not
surprising that this file could not traced at that facility because,
based on the date of birth of the minor child, being
the 1
st
May 2014, no records pertaining to her treatment could exist in
February 2014, prior to his birth.
[16]
The respondent’s response that, “
the records which the
applicants seek in these proceedings do not exist and no such records
could be provided by the respondents
on the 11
th
February 2020 or now”,
is supported by all the information
and records provided by both the applicant and the respondents.
[17]
Save for the date of birth which appears on the birth certificate and
the ID number of the minor
showing that she was born on the 1
st
May 2014 in K[....], Northern Cape Province, there is no evidence as
to the medical facility whereat she was born. The respondents
could
not legally be expected to provide to the applicants any more
information that the information in their possession based
on the
request made in terms of section 18(1) of PAIA.
[18]
Although the reason advanced for the request for information is
irrelevant to the decision whether
or not to provide the requested
information,
[6]
for the reason
that the applicants sought the information to pursue a claim for
damages for medical negligence which resulted in
the disability of
the child, occasioned at birth, it is incontrovertible that the
respondents are not custodians of that information.
[19]
In my view it is sufficient for the respondents to have provided the
applicants with the only
information that they have pertaining to the
applicants. There is no duty on their part to depose to an affidavit
stating that
they don’t have in their possession any other
information except the information provided. In any event, the deputy
information
officer has stated categorically in his answering
affidavit that the respondents could not trace any information
pertaining to
the birth of T[....] B[....] at Universitas Hospital.
[20]
For the reasons stated above, I am not persuaded that the applicants
have made a case warranting
any of the orders sought or contemplated
in section 82 of the PAIA. The applicant’s application
therefore stands to be dismissed.
[21]
The founding affidavit was deposed by the applicant’s attorney,
and it contains certain
information which the attorney could not have
had personal knowledge of. The power of attorney that has been
granted by the applicant
also does not clarify the mandate of the
applicant’s attorneys. It states that the attorneys are
appointed “
to investigate the circumstances relating to the
incident in which I was injured and occurred on _____
(no date is
mentioned)
, and to obtain from the relevant Hospitals and doctors
concerned all facts, medical records, accounts, and details relating
to
my injuries.”
It is because of these issues that the
respondent argued that there was no mandate granted to the
applicant’s attorneys to
act on behalf of the applicant in this
matter and on that basis the respondents applied for an order of
costs
de bonis propriis
.
[22]
I am of the view that, considering the later participation of the
applicant in these proceedings
in the form of deposing to the
affidavit attached to the replying affidavit, there is no sufficient
cause to order that the applicant’s
attorneys be ordered to pay
the costs
de bonis propriis
.
[23]
I am also of the view that an order for payment of costs on a party
and party scale will be just
and equitable in the circumstances.
[24]
In the result I make the following order:
1.
The application is dismissed with costs.
M.
S. LITHEKO, AJ
For
the Applicant:
Adv. E.G. Lubbe
Instructed
by: VZLR
Attorneys
Bloemfontein
For
the Respondents:
Adv. A.I.B. Lechwano
Instructed
by: State
Attorney
Bloemfontein
[1]
Notice
of Motion, page 3 of the record.
[2]
Page
9 of the record.
[3]
Para
8.3, 8.4 and 9 of the founding affidavit on page 10 and 11 of the
record.
[4]
Para
8.9, 8.10 and 8.11 of the answering affidavit on page 52 of the
record.
[5]
Page
69 of the record.
[6]
Section
11(3) of PAIA.