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[2022] ZAECMKHC 96
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C.P.K and Others v Mackenzie and Others (3572/2021) [2022] ZAECMKHC 96 (1 November 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
FLYNOTES: DAMAGES CLAIM AND
MEDICAL RECORDS
Civil procedure –
Documents and records – Medical and psychological records –
Access by defendants in damages
claim – Only those records
germane to the assessment of records – Request for all
medical records was invasive
and would tamper with rights to
privacy and dignity – Uniform Rule 36(4).
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION, MAKHANDA]
CASE
NO.: 3572/2021
In
the matter between:-
C[....]
P[....]
K[....]
FIRST
APPLICANT
E[....]
G[....]
K[....]
SECOND
APPLICANT
J[....]
M[....]
K[....]
THIRD
APPLICANT
and
DAVID
MACKENZIE FIRST
RESPONDENT
ST
ANDREWS COLLEGE
SECOND
RESPONDENT
ALAN
THOMPSON THIRD
RESPONDENT
ST
ANDREWS COLLEGE COUNCIL
FOURTH RESPONDENT
THE
MINISTER OF BASIC EDUCATION, FIFTH
RESPONDENT
MATSIE
ANGELINA MOTSHEGA
THE
MEC FOR EDUCATION EASTERN CAPE,
SIXTH RESPONDENT
FUNDILE
DAVID GADE
THE
SOUTH
AFRICAN
COUNCIL
FOR
EDUCATORS
SEVENTH
RESPONDENT
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
JUDGMENT
NORMAN
J:
[1]
This is an interlocutory application brought in terms of Rule
30 of the Uniform Rules of Court. The first, second and third
applicants,
(the plaintiffs in the main action), seek to have, two
notices delivered in terms of Rule 36 (4) , by the second and third
respondents
(the defendants in the action,) on 19 November 2021
,declared irregular and set aside. They also seek costs of the
application
on an attorney and client scale.
Background
[2]
It is necessary to set out, for context, some of the
allegations upon which the claim is founded. The first and second
applicants
are the parents of a learner, T[....], who was enrolled at
the St. Andrews College at the time of his demise. I had raised with
the parties at the commencement of the hearing the issue of the full
names of the learner being published in court documents and
I was
advised by Mr Kaplan that his demise is a matter of public knowledge.
The third applicant is the younger brother of T[....].
The first
respondent was, at the relevant time, a water polo coach and an
Assistant - Deputy House Master at St. Andrews College.
The
applicants allege that the first respondent wrongfully and unlawfully
sexually groomed and molested T[....]. As a result of
that unlawful
conduct , they allege, T[....] became depressed, withdrawn and
committed suicide on 18 November 2018.
[3]
The second respondent is sued based on , amongst others,
vicarious liability for the first respondent's conduct and on various
other
grounds premised on alleged breach of the agreement between it
and the first and second applicants. The third and fourth respondents
are sued based on ,
inter alia,
their alleged failure to
comply with their undertaking to exercise reasonable care for
T[....]'s well being and exercise the
necessary parental powers
in
loco parentis
when he was on the school premises. It is
alleged that they failed to take reasonable steps to guard against
T[....] being sexually
groomed and molested by the first respondent.
The applicants claim to have suffered damages arising from ,
inter
alia,
emotional shock, trauma, grief, loss of future support and
future medical expenses . The total quantum exceeds R60 million. The
action is defended by the first to fourth respondents.
[4]
On 19 November 2021 the second and third respondents issued two
notices in terms of
Rule 36 (4) of the Uniform Rules of Court .The
first notice reads as follows:
‘…
.
TAKE
NOTICE THAT the abovenamed second and third defendants require the
plaintiffs, within ten (10) days hereof, and within ten
(10) days of
receipt by them of any further documents mentioned below:
1.
To make available insofar as they are able to do so to the
second and third defendants any medical reports, hospital records,
psychological
reports, psychiatric reports or other documentary
information of a like nature relevant to the assessment of the
damages which
are subject of the above action.
2.
To allow the second and third defendants to inspect all
records relating to the plaintiffs in the possession of any hospital,
medical
practitioner, psychologist or psychiatrist.
3.
To furnish the second and third defendants at their cost,
which costs are hereby tendered, with copies of all medical reports
in
their possession relating to the relevant claim for damages, such
records that pre-dale and post-dale the incident alleged in their
Particulars of
Claim.'
[5]
The second notice reads :
‘…
.
TAKE
NOTICE THAT that the abovenamed second and third defendants require
the plaintiffs, within ten (10) days hereof, and within
ten (10) days
of receipt by them of any further documents mentioned below:
1.
To make available insofar as they are able to do
so
to
the second and third defendants any medical reports, hospital
records, psychological reports, psychiatry reports or other
documentary
information of a like nature relating to the late T[....]
K[....] and relevant to the
assessment
of the damages which
are subject of the above action.
2.
To allow the second and third defendants to inspect all
records relating to the late T[....] K[....] in the possession of any
hospital,
medical practitioner, psychologist or psychiatrist.
3.
To furnish the second and third defendants at their
cost,
which
costs
are hereby tendered, with copies of all medical
reports in their possession relating to the late T[....] K[....].
'
( my underlining)
[6]
It is common cause that, the applicants object to paragraph 2
, only, in respect of each notice. They registered their objection
by
delivering a notice in terms of Rule 30(2) (b) ,on the basis that the
aforementioned notices were irregular. They accordingly
afforded the
respondents a period of ten days to remove the cause of complaint.
[7]
On 30 November 2021, the applicants further addressed
correspondence to the respondents where they raised additional
grounds of
objection which included,
inter alia,
that the
deceased, T[....] , was not a claimant in the action and any request
for his records or documents , in terms of Rule 36(4)
, was
irregular.
[8]
Upon receipt of the objections , the respondents raised
objections to the rule 30 notice. They advanced the following grounds
:
that the applicants adopted an overly technical approach with the
intention of subverting the objects of the rule; the object of
the
notices was to enable the respondents to inspect all records relating
to the applicants and T[....] which are in possession
of any hospital
, medical practitioner, psychologist or psychiatrist; the applicants
are required to make available to the respondents
the documents that
are relevant to the assessment of damages and , to do so, in respect
of those that they are able to make available;
in the event that the
applicants do not have those documents in their possession, they hold
the power to allow the respondents
access to them; and the fact that
the applicants have not advanced any complaint in relation to
paragraphs 1 and 3 of the notices
, setting aside the entire notice
instead of just paragraph 2 is overly technical.
[9]
In reply, the applicants submitted that: First, the rule in
terms of which the notices were issued does not provide for
inspection.
Second, the notices are excessively wide and constitute
abuse of the process , because the respondents seek the documents
that
are not necessarily in the possession of applicants and seek
also all records in the possession of any hospital, medical
practitioner,
psychologist or psychiatrist, without specifying the
nature of the documents and what their relevance to the matter is.
[10]
Mr Kaplan appeared for the applicants and Mr Beyleveld SC with
Mr Brown, for the respondents.
Applicants' legal
submissions
[11]
Mr Kaplan made the following submissions on behalf of the
plaintiff:
11.1
The respondents sought to inspect 'all
records relating
to the plaintiffs'
and
'all records relating to T[....]
K[....]'
in the possession of any hospital, medical practitioner,
psychologist or psychiatrist. In this regard the documents that are
being
sought are not limited by the requirement of relevance in
relation to the damages claimed.
11.2
No
case has been made out in the answering affidavit for any relief that
the court should utilize its inherent power to grant procedural
relief not set out in the rules in accordance with paragraph 2 of
each of the two notices. It was further submitted that reliance
by
the respondents
on
Mann
&
Others v
Leach
[1]
and
Universal
City Studios Inc.
&
Others v
The Network Videos (Pty) Ltd
[2]
,
is
misplaced in that, the inherent jurisdiction of the High Court can
only be applied to address a
lacuna
[3]
,
which ,
in the absence of judicial intervention,
would
result in an injustice.
11.3
The respondents failed to deal with some of the numerous rules
which entitle them to obtain relevant information, namely, Uniform
Rules 21, 35(1), 35(3),36(2), 36(5)(a) and 39(2)(a) and (b); they
also failed to disclose to the Court that they have already appointed
experts , an Educational Psychologist, Industrial Psychologist and a
Clinical Psychologist to assess the applicants in terms of
rule
39(2)(a) and (b).
11.4
They contend that bringing the application was the only
available option. Had the applicants not done so, then the
respondents ,
would have been content in assuming that the notices
were not irregular and would have insisted on compliance therewith.
11.5
The request for all medical records which are (extending to
their entire lives which are in possession of any hospital, medical
practitioners, psychologists or psychiatrists is highly invasive and
has no regard for the privacy, dignity and confidentiality
of the
applicants and the late T[....].
11.6
That
the
respondents
have been
unreasonable in their refusal to remove the cause of complaint, and
for that reason, the court must order them to pay
costs on a punitive
scale. In this regard reliance was placed
on the case
of
Public
Protector v South African Reserve Bank
[4]
.
Respondents' legal
submissions
[12]
Mr Byleveld SC, made the following submissions:
12.1
The medical records that are requested in the notices are
relevant to the assessment of damages claimed by the applicants in
respect
of emotional shock, trauma and grief , because, the
respondents need to assess the claim and to do so, it is necessary to
consider
the psychological state of the applicants prior to , at the
time of and after the suicide of T[....].
12.2
They need to assess any diagnosis and treatments received
after T[....]'s suicide against the psychological state prior thereto
and it is also necessary to assess whether any psychological change
is attributable solely to T[....]'s suicide or whether it is
linked
to pre-existing psychological conditions.
12.3
The medical records sought in the first notice are relevant to
the assessment of the damages claimed by the applicants in respect
of
future loss of support and their ability to provide for themselves
into the future.
12.4
The second notice requested certain documents relating to
T[....] , in respect of whom the first and second applicants
exercised
parental control. There is no suggestion that the parents
are unable to provide the documents or are unable to provide their
permission
to the institutions in question to release the
information. It is necessary to determine T[....]'s physical and
psychological state
in order to assess the damages claimed and in
determining whether T[....] would have been able to provide for his
parents.
12.5
T[....]'s
psychological state is very relevant to the determination of the
causation relied upon by the applicants in the action
proceedings.
In this
regard reliance was placed on ,
Mann
and others
v
Leach
[5]
and
Universal
City Studio Inc.
&
Others v
The Network Video (Ply) Ltd
[6]
for the
argument that this court has inherent power to order more than what
the rules provide, if to do so , would be in the interests
of
justice.
12.6
In
interpreting the provisions of Rule 36(4) , the court , must adopt
the approach of the Supreme Court of Appeal in
Endumeni
judgment
[7]
,
and
have regard to the nature of the document, its meaning, the words
used, the context in which they appear and their apparent
purpose.
12.7
Rule 36(4) does not refer to possession but to making
documents available in so far as the applicants are able to. There is
nothing
irregular about the first and second notices and that the
application should be dismissed with costs including costs of two
counsel
where employed.
Discussion
[13]
First , I wish to dispose of two of the objections raised by
the applicants , namely, that the respondents failed to deal with
some
of the numerous rules which entitle them to obtain relevant
information, namely, Uniform Rules 21, 35(1), 35(3),36(2), 36(5)(a)
and 39(2)(a) and (b); and they also failed to disclose to the Court
that they have already appointed experts , an Educational
Psychologist, Industrial Psychologist and a Clinical Psychologist to
assess the applicants in terms of rule 39(2)(a) and (b). Courts
cannot dictate to litigants how to conduct their cases , how to
conduct their investigations in relation to claims against them
and
which rules they must employ in doing so . The fact that there are
experts employed by the respondents in terms of rule 39
(2), does not
preclude the respondents from invoking the provisions of rule 36 (4).
Those are different rules serving different
purposes. There is
accordingly no merit in these two objections.
[14]
Rule 36(4) provides:
'any
party to such an action
may at any time by notice in writing
require any person claiming such damages
to make available in so
far as he is able to do so to
such other party in ten (10) days,'
medical reports, hospital records, X-Rays, photographs, or such other
documentary information
of a like-nature
relevant to the
assessment
of such
damages
, and
to
provide copies thereof upon request."
(
my
emphasis)
[15]
Rule 36 (4) was designed with the full appreciation that
medical records are, by their nature , confidential . The ability to
give
the medical records depends , in my view , on whether they are
available and whether the requestee wishes to make them available
or
to claim privilege and thus resist the request. The availability of
medical records depends on possession (are they in the requestee's
possession ?) and accessibility ( if they are not with the requestee,
is he or she able to access them?) The records may be available
but
the requestee may claim privilege. They may not be in the requestee's
possession at the time of the request but he or she may
be able to
access them from the clinicians or the hospitals.
[16]
The ground of objection advanced by the applicants based on
the fact that, they are not in possession of the medical records
requested
, is not consistent with the purpose of the rule . If one
has regard to the literal grammatical meaning of rule 36 (4), one
would
realize that ,it would defeat the purpose of the rule , if,
only those medical records that are in the possession of the
requestee
are to be requested. The wording :
"To
make
available in
so
far as they are able to do
so ", is
cognizant of that fact.
[17]
In
Zandry
v Randol Yachts
[8]
the
court, faced with an admiralty claim, engaged in the interpretation
of
the
provisions of Rule 36 where there is reference
'to
make available the yacht Madia'.
The
court at paragraph 18 remarked :
'The
everyday dictionary meaning of the words 'make available' in the
context is to cause the property in question to be placed
al
the
disposal of or to be accessible to the litigant requiring its
inspection or examination. (see The Shorter Oxford English
Dictionary;
The Random House Dictionary of the English Language; and
Webster's Third International Dictionary sv 'make' and 'available').
[18]
In
casu,
one is not dealing with property as in the context of
a yacht that was in Madagascar as in the
Zandry
matter.
However, one is dealing with medical records. In my view, the
requested medical records and / or documents need not be in
the
possession of the requestee at the time of the request. If he or she
is able to access them that would suffice. The requestee
must make
them available if he or she is able to do so. If the requestor wishes
to have copies of those medical records , it must
specifically
request such copies, from the requestee. I accordingly agree with the
submissions made by Mr Byleveld SC in this regard.
It follows that
this objection by the applicants must also fail.
Does rule 36 (4) envisage
a request of medical records or documents of a like nature, that
belong to a person who is not a party
to the litigation?
[19]
Rule 36 (4) provides that the request for medical records may be made
by any party to the action
(against whom damages are claimed) .The
request must be directed to the party claiming damages. This means
that both the requester
and the requestee must be parties to the
litigation. That is the position herein. The rule controls the extent
of the requested
medical records by specifying that those records
should be relevant to the assessment of claimed damages. The rule
makes reference
to
'any medical records'
. In my view, 'any'
means medical records , documents or X-Ray photographs , irrespective
of their origin or relation, for as long
as they are relevant to the
assessment of the damages in the action, they will fall within the
ambit of the rule. However , there
must be a
nexus
between
those medical records and the damages claimed. That means that those
records do not necessarily need to belong to the parties
to the
litigation . They may belong to a third party as long as they are
relevant to the assessment of damages in the action. For
example , if
the applicants wish to rely on medical records in another case ,
which bears similarities to their case, those records
would fall
within the scope of the request. If the purpose of the rule was to
limit the medical records to those of the litigants
it would have
stated so in express terms.
Are T[....]'s medical
records covered by the rule ?
[20]
The allegations made in the particulars of claim indicate clearly
that the demise
of T[....] is the source of the applicants damages
claim. The second notice refers specifically to T[....]. In the first
paragraph
of the notice , a request is directed to the applicants to
make available any medical records relating specifically to T[....]
that are relevant to the assessment of the damages which are the
subject of the action. There is no objection to this paragraph
by the
applicants. However, the objection is that T[....] is not a party to
the action and therefore production of his medical
records may
infringe his rights to privacy and dignity. It seems to me that the
applicants in this regard are approbating and reprobating.
This
objection was not pertinently argued by the parties but was not
abandoned either. It is for that reason that I have to consider
it.
[21]
It is
apparent from the claim itself that the applicants do not purport to
act on behalf of T[....] nor do they purport to claim
damages on his
behalf. If,
T[....] is
not a party to the litigation on what basis would his medical reports
be relevant to the assessment of damages in the
action? This question
is answered by the applicants who elected not to take issue with
paragraph 1. The next question would be
if his medical records are
made available what about his rights to dignity and privacy?
Litigation by its very nature limits privacy
and dignity rights
depending on the nature of the claim. However, I find comfort in the
remarks of Harms JA
[9]
when
dealing with the provisions of Rule 36(4) recorded:
''This
sub-rule does not override the rules of evidence relating to
privilege
[10]
.
[22]
The sentiments expressed by Harms JA , above, are an indication that
the fact that there are
requests for medical records and documents as
envisaged in the rule , does not mean that any rights that the person
has to ,
inter alia,
privilege, are forfeited.
[23]
As aforementioned , the applicants cause of action , largely , if not
exclusively, is based on
the demise of T[....] , his mental state and
the wrong caused to him as alleged in the particulars of claim. By so
doing , the
applicants, caused T[....] to be inextricably linked to
the cause of action. Therefore , the respondents have a right to
investigate
the cause of action and rule 36 (4) enables them to
pursue those investigations. How else are they to know T[....]'s
mental state
if they are denied access to his medical records? How
will the court know the truth and T[....]'s mental state if the
respondents
are precluded from requesting his medical records and yet
he is central to the claim, according to the pleadings? However, in
permitting
the request that does not mean that the respondents
investigations should entitle them to T[....]'s medical records from
birth
until his death.
[24]
The respondents
have a
right, in my view, in terms of rule 36 (4) , to request the medical
records of T[....] that are relevant to the assessment
of the damages
in the action,
based on a
specified period. If there is no period stipulated the request
would be
from birth until his demise. That is not what is envisaged in the
rule.
Nothing
stops the applicants from objecting to specific medical records and
claim privilege, if they so wish. That would entail
a decision by the
trial court,
on the
privilege issue , based on the nature of the medical records sought
to be protected and the reasons therefor.
Having said
that the request for T[....]'s medical record , in the context of
this case , falls within the ambit of the rule .
In the
Mann
&
Others
v
Leach decision
[11]
,
Leach J (
as he then was) , stated at page 224:
"
The primary function of this Court is after all, to administer
justice in the fight of the particular facts in each case, and it
will be harmstrung in this task unless it is able to ascertain the
truth. In State of Ohio ex Van Camp v Welling (1936) 22 Ohio
L Abs
448 at 450, in a passage cited by Didcott Jin
Seetal's
case (supra), Conn J said:
'When
we adopt the maxim that for every legal wrong there is
a
remedy,
we must also apply the corollary that every remedy shall be founded
on truth and justice. Ways and means for the ascertainment
of truth
are not statical. The value of scientific research
,
and the
truth thus revealed, ought to be available to
the
Courts. If this be true, then the Courts must have the power
,
soundly exercised to bring the fight of scientific research and
knowledge to bear upon the issues of fact as a further aid in
arriving
at the truth and in doing complete justice. If this be
unsound, then the Courts in the application of the remedial law may
fail
to keep abreast of the march of progress, and thereby fail to
command uniform confidence and respect
.
It is no answer to
say that there is a lack of express authority, unless we conceive
that the law is static and lacks the merit
of an expansive
flexibility, both in respect to the recognition of rights and their
invasions, and in respect to the power of the
Court to discover and
apply methods of ascertaining the truth whereby the remedy may be
appropriate and coincide with justice"
Is the request for all
medical records in both notices overbroad?
[25]
Mr Kaplan submitted that the request for all medical records
of the plaintiff and T[....] would amount to invasion of their rights
to privacy.
[26]
In
Durban
City Council v Mndovu
[12]
where
counsel for the respondent objected to a notice for him to submit to
medical examination
relied on
the same argument that to order the medical examination would amount
to drastic invasion of his rights to be examined
only with his
consent. Addressing that Henning J
[13]
stated that
'as
to
first submission of Mr Broome, it is true that the obligation of a
claimant to submit himself to medical examination is a drastic
invasion of his rights; but that is exactly what is contemplated.
The
wording of the Rule is plain and unambiguous, and should be given
effect to in its full extent. The only qualifications in the
Rule to
the right conferred upon to
a
person
to require
a
claim
and to submit to medical examination, are those which are already
mentioned.'
[27]
At page 324 B- D , the court stated the following:
'[in
the past],
a
defendant could not insist upon the opportunity
of gaining information relating to
a
plaintiff's injuries or
the effects thereof
on his
mental or
physical health, save by way of asking for further particulars in the
course of the pleadings or for the purpose of trial,
or, possibly by
way of discovery
application ...
As
I interpret the Rule, not only in relation to
a
medical
examination required in terms of subrule(1) but
as a
whole, it
is mainly designed to avoid
a
litigant being taken by surprise
in relation to matters with respect to which he would in the normal
course of events be unable,
before trial, to prepare his case
effectively so
as
to meet that of his opponent. Subrule(1) of
Rule 36 confers
a
right, albeit
a
qualified right, upon
the party against whom the claim is made, but in no sense can it be
said to confer any right upon the claimant.
The right thus created is
subject to compliance with sub-rule
2
and also to the
right of the claimant to object in terms of sub-rule
3.'
[28]
The overall purpose of rule 36 (4) is to enable the
respondents to investigate the extent and veracity of the claim
against them.
It also ensures that it limits such investigations only
to those medical records or documents that are relevant to the
assessment
of damages. It stands to reason that the respondents are
not given
carte blanche,
to call for all medical records
whether they are relevant or not to the claim. When a party makes a
request in terms of rule 36(4),
the notice that it issues must be in
line with the provisions of the rule. If it decides to change the
wording of the rule, that
too, must be in line with its purpose.
[29]
The drafters of rule 36 (4) used the words
'relevant to the
assessment of such damages',
those words, in my view, are the
safeguard to the medical records under request. They are there to
prevent unguided demands for
a person's medical records, even if they
are not relevant to the claim. The language employed in rule 36 (4)
is permissive. That
demonstrates that the drafters of the rule were
alive to the constitutional imperatives attached to medical records.
No party may
therefore utilize the rule to demand
all
medical
records without qualifying those as '
being relevant to the
assessment of damages'.
Any interpretation given to rule 36 (4)
cannot clothe it with the power to undermine those constitutionally
entrenched rights.
[30]
Leach J ( as he then was) in
Mann v Leach at page 224 B-
C
held:
"The
view that the inherent jurisdiction of the court should only be
sparingly used to direct a party to submit to
a
medical
examination is, in my opinion, correct. It
should not
be exercised
as a matter
of
course
merely
because
the
Rules
omit
to
make
provision
for the relief sought. Instead
,
this
Court will onlv come to an
applicant's
assistance
outside
the
Rules when satisfied
that justice
cannot be
properlv done
unless
relief is granted
..."
( my underlining)
[31]
The
court in
Mann
v Leach
granted
the relief on the basis that without such an examination the real
truth could not be ascertained and that justice between
the parties
would not have been properly done.
[14]
[32]
The facts of the case in
Mann v Leach
related to
medical examination. I appreciate the fact that had the court refused
to order the examination , the respondents would
have been seriously
prejudiced. In this case a proper notice may still be issued as long
as it accords with the wording and purpose
of the rule. There is no
time period provided in paragraph 2 of the respective notices. There
is no reference that those medical
records are relevant to the
assessment of the damages which are the subject of the action . The
"all medical records"
is so overbroad that it goes beyond
the period of the action itself ( from birth to date ). If the third
applicant once fell and
injured his toe at creche when he was three
years old , what relevance would those medical records have to
assessment of damages
in this action ? What relevance would T[....]'s
neonatal or dental medical records have to this litigation?
[33]
The request amounts to what is usually referred to as "a
fishing expedition". In essence , the request places the
applicants
at the mercy of the respondents who simply want to fish
for anything and everything that they could find from any medical
records
available throughout the country. That is clearly not the
intention of the rules, and , in particular, rule 36(4). In this
case,
unlike in the
Mann
case, above, the interests of justice
dictate that there can be no legitimate demand for all medical
records of a litigant whether
they are relevant to the assessment of
damages or not.
[34]
I agree with the submission that in interpreting the notice
one must follow the
Endumeni
principles of interpretation,
however, in the context of the impugned notices , giving them a
generous interpretation (namely ,
directing production of all medical
records ) would affect the constitutional rights of the applicants
and T[....]. That is not
what is envisaged in the
Endumeni
judgment. Further , by giving the notices a generous
interpretation as contended for by the respondents, I will be
extending the
territory of the notice , way beyond what is envisaged
in rule 36 (4). I am satisfied that the request for" all medical
reports
or documents" is too broad and the notices in their
present form cannot be saved even by the court's inherent power.
[35]
I agree with Mr Kaplan that a request for
all the medical
records
is invasive and would tamper with the applicants and
T[....]'s right to privacy and dignity. The request is not based on
relevance
and for that reason it is contrary to the purpose of the
rule and thus irregular.
Does
Rule 36 (4) envisage inspection of medical records?
[36]
First, Rule 36(4) , makes no provision for inspection and in
this regard the notice is not consistent with the provisions of the
rule. Second, the rule does not entitle a requestor to all medical
records of a claimant. It allows the request only in relation
to
those medical records that are germane to the assessment of damages.
I have dealt fully with the second point , above.
[37]
As aforementioned , paragraph 2 in respect of each notice ,
requests inspection of fill medical records relating to the
applicants
and T[....] , without any qualification of 'relevance'.
[38]
There is a specific rule which provides for inspection
processes and that is rule 36(6). As is apparent from that rule it
makes
no reference to medical reports. If it did , in my view, it
would mean that , a party may issue a notice such as the one impugned
herein and simply seek to inspect medical records of another
litigant, without specifying whether or not they are relevant to the
litigation. That inspection would , in my view, have a wide ranging
effect as it would cover any period and the requestee would
lose
control over his or her own medical records. That, as I see it, may
be the reason that the inspection rule , (rule 36 (6))
does not
include medical records. An inspection by its very nature gives
control of the process to the party conducting the inspection.
He or
she will decide what he or she finds useful for his or her case .
That could not have been the intention of those who drafted
the rules
relating to medical records. I accordingly find that the applicant's
objection that the relevant rule does not provide
for inspection has
merit. The two notices , therefore , on this basis alone, are
irregular.
[39]
The respondents contend that the applicants are being technical by
not complying with paragraphs
1 and 3 of each notice , since those
were not objected to. In paragraph 3 of the second notice the
applicants are requested
"to furnish the second and third
defendants at their cost, which costs are hereby tendered, with
copies of
all
medical reports in their
possession relating to the late T[....] K[....].' ( my underlining).
In my view, this paragraph , although not objected to, falls
within the objection raised relating to the privacy of T[....]. It is
similar to the request made in paragraph 2 , as it relates
to
copies of all medical reports in their possession relating to
T[....], and is similarly overbroad.
[40]
The
respondents contend that these notices cannot be properly construed
as hindrances to the conducting of further litigation which
is what
Rule 30 notices in respect
of
irregular
proceedings
are
aimed
at
preventing.
In this
regard
they relied
on
SA
Metropolitan Lewensversekeringmaatskapy Bpk v Louw NO
[15]
.
In the same
paragraph relied upon by the respondents in the
Louw
case
,
above, the Court held ,
inter
alia,
that
"
A
party who takes a procedural step which advances the finalization of
the case may not, unless he is unaware of the irregularity,
ask
for
the setting aside of the relevant irregularity."
That is
not the case herein . The notice in terms of Rule 30 which preceded
this application was issued
timeously
and
adequate
time
frames were
afforded to
the respondents. Any request for all medical records from birth to
date in respect of all the three applicants and T[....]
, would
cumbersome and until it is consistent with the provisions of rule 36
(4)
,
it would
continue to
hinder progress in the action.
It would
cause the applicants to be in the same position as Mr Wixley in
Beinash v Wixley
[16]
where
Mahomed CJ remarked
about
an impugned
subpoena
as follows:
"The
first is the generality and wide ambit of the demands contained in
the subpoena. The language used is of wider possible
amplitude,
including within its sweep every conceivable document of whatever
kind, however remote or tenuous be its connection
to any of the
issues which require determination in the main proceedings ...
The
second conspicuous feature is that it is left to Wixley to make
a
judgment as to what he should or should not produce. He has
continually to carry the risk of criminal sanctions in making that
judgment.
The impugned subpoena does not identify the particular
documents which Wixley is required to produce. It leaves it to him to
search
and determine how any of/he
thousands of
documents involved might or might not be related in some direct or
indirect way to 'matters' which appear to concern
Beinash. It must be
oppressive to put
a
witness who is not even a party to the
main proceedings under this kind of very generalized and onerous
duty".
[41]
The remarks made by the Chief Justice in the Beinash case apply
equally herein. To expect the applicants to trawl
through all of
their medical records over many years without any indication of
relevance to the damages claim will be onerous.
[42]
I reject the submission that the applicants should have
complied with paragraphs 1 and 3 . It is incumbent upon the
requester
to make the request clear , simple and in line with the wording and
purpose of the rule.
[43]
I am satisfied that the applicants have made out a case for the
relief they seek . It follows
that both notices are irregular and
should be set aside.
Costs
[44]
The applicants are seeking costs on an attorney and client
scale on the basis that the respondents could have removed
the cause
for complaint and thus prevented the launching of the application.
The applicants were obliged to approach this court
for relief .They
have not succeeded in all of the objections they raised ,as shown in
this judgment. It is for that reason that
I am not disposed to accede
to Mr Kaplan's request that costs should be paid on an attorney and
client scale. Based on the findings
, made above, that the notices
are irregular and are liable to be set aside , the applicants have
achieved substantial success.
There is no reason to depart from the
general rule that costs should follow the result.
[45]
make the following Order
:
45.1
The two notices delivered by the respondents , in terms of Rule 36
(4) dated 19 November 2021, are declared irregular and are
accordingly
set aside.
45.2.
The second and third respondents are ordered to pay costs of this
application.
T.V
NORMAN
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicants:
ADV. J. KAPLAN
Instructed
by
:
IAN LEVITT
ATTORNEYS
The
Leonardo , Office Level 12
75
on Maude Street
Sandtan
Tel
: 011 784 3310
EMAIL
:
ian@ianlevitt.co.za
caitlin@ianlevitt.co.za
REF:
I LEVITT/ MAT 3551
C/O
NEVILLE BORMAN AND BOTHA
22
HILL STREET
MAKHANDA
REF:
( Mr J Powers)
TEL
: 046 622 7200
EMAIL
:
justin@nbandb.co.za
For
the Second and Third Respondents :
ADV. A. BEYLEVELD SC
ADV.
G.BROWN
Instructed
by :
WHEELDON RUSHMERE & COLE INC.
MATTHEW
FOSI CHAMBERS
119
HIGH STREET MAKHANDA
REF:
MR BRODY/Dianne/ S24415
Date
of Hearing 15 SEPTEMBER 2022
Date
of Delivery 01 NOVEMBER 2022
[1]
[1998] 2 All SA 217
(ECD) 222 at page 221.
[2]
[1986] ZASCA 3
;
1986 (2) SA 734
(A) at 781 c2h.
[3]
Standard Bank and Others v Ezra Makikole Mpongo and Others Case Nos
38/2019; 47/2019 and 999/2019 (SCA); CCT Case No. 291/2021
[4]
CCT 107/18
[2019] ZACC 29
(22 July 2019 para 221).
[5]
Supra.
[6]
Supra.
[7]
Natal Joint Municipal Pension Fund v Endumeni Municipality
2012 (4)
SA 593
(SCA) (18-20] and [25-26].
[8]
CC
2006 (5) SA 302
CPD.
[9]
in his work entitled "Civil Procedure in the Supreme Court"
issue 24 page b-263.
[10]
Minister of Safety & Security v Kekana
[1996] 2 ALLSA 324
W.
[11]
[1998]2 ALL SA 217 ( E)
[12]
1966 (2) SA page 319 Durban Coast Local Division page 232 para F.
[13]
At page 324 para B-D.
[14]
See:
Muller v Groenewald (2624111
)
[2011]
ZAECGHC 50
(
22
September 2011) at paragraph 13.
Smith
J refused relief that was sought to direct the respondent to submit
to psychological examination to determine the suitability
of the
respondent as the custodian parent of the minor children.
[15]
SA Metropolitan Lewensversekeringmaatskapy Bpk v Lauw NO
1981 (4) SA
239
(0) at 333 G-H.
[16]
[1997] ZASCA 32
;
1997 (3) SA 721
SCA @ 735 para C,G&H.