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[2022] ZAECELLC 17
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Mbiko obo Mbiko v MEC for Department of Health, Eastern Cape Province (1150/2021) [2022] ZAECELLC 17 (20 July 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE
NO. 1150/2021
In
the matter between:
NOZIZWE
MBIKO obo UVIWE MBIKO
APPLICANT
and
MEC
FOR DEPARTMENT OF HEALTH, EASTERN
CAPE
PROVINCE
RESPONDENT
REASONS
FOR THE ORDER
GQAMANA
J:
[1]
For convenience, the parties shall be referred to as cited in the
main action. On 15 June 2022,
I issued an order in favour of the
applicant with the reasons to follow and below herein are such
reasons.
[2]
The plaintiff, acting on behalf of her minor child caused summons to
be issued against the defendant,
MEC for department of Health,
Eastern Cape Province for damages arising out of an alleged
negligence by the defendant’s employees
who attended to the
plaintiff during her admission and birth of her minor child at Frere
hospital during November 2003. For present
purposes, the plaintiff
seeks an order in terms of Rule 35(3) of the Uniform Rule of Court,
to compel the defendant to reply to
her notice requesting further
records as well as costs of such application.
[3]
The case made out by the plaintiff in the founding affidavit is that
after pleadings were closed,
a discovery affidavit was filed on
behalf of the defendant on 17 January 2022. On receipt the
defendant’s discovery affidavit,
the plaintiff held an opinion
that the documents so discovered were incomplete and that the
defendant was in possession of further
documents. As a result, on 31
January 2022, the plaintiff’s attorney served the defendant
with a notice in terms of Rule
35(3) requesting copies of
inter
alia
, the neo-natal records, histology, birth register, labour
admission book, medical register and CTG scan taken during birth of
the
plaintiff’s minor child. In terms of the aforesaid notice,
the defendant was required to make available for inspection within
5
days of such notice the aforesaid documents or to state under oath
within 10 days that same were not in her possession.
[4]
Rule 35(3) of the Uniform Rules reads:
“
If
a party believes that there are, in addition to documents or tape
recordings disclosed as aforesaid, other documents (including
copies
thereof) or tape recordings which may be relevant to any matter in
question in the possession of any party thereto, the
former may give
notice to the latter requiring such party to make same available for
inspection in accordance with subrule (6),
or to state on oath within
10 days that such documents or tape recordings are not in such
party’s possession, in which event
the party making the
disclose shall state their whereabouts, if known.
”
[5]
There being no response to the plaintiff’s Rule 35(3) notice,
her attorney penned a letter
on 15 January 2022, to the defendant’s
attorneys putting them on terms to comply with the aforesaid notice.
[6]
On 23 March 2022, the defendant was served with the application to
compel her reply to the plaintiff’s
aforesaid Rule 35(3)
notice.
[7]
In the opposing affidavit deposed to by the defendant’s
attorney of record, Mr
Dlanjwa
it is alleged that, the
erstwhile attorney who was seized with the matter, Mr
Ngwenya
,
responded to the plaintiff’s attorney on 14 February 2022, and
advised the latter that the defendant is in search of the
requested
documents and a permission for an extension of time to provide same
was requested. It is further contended that on 18
February 2022, the
defendant complied with the plaintiff’s Rule 35 (3) notice in
that, the plaintiff’s attorneys were
notified and invited to
inspect the requested documents at the offices of the defendant’s
attorneys. A copy of such notification
was not annexed in the
defendant’s opposing affidavit despite an averment by the
defendant’s attorney that such notice
was served on the
plaintiff’s attorney and that same forms part of the annexures
to the opposing affidavit. No explanation
was given on behalf of the
defendant for such crucial and fundamental omission. The defendant’s
attorneys were alerted to
this omission, but they failed to rectify
it. Without such annexure, this Court is disabled to comment and
evaluate the accuracy
of such allegation.
[8]
As one of the grounds of opposition of the present application, the
defendant submitted that,
the plaintiff should have taken the
statutory route ordained in the
Promotion of Access to Information
Act 2 of 2000
to seek access to the required medical records. This is
an unfortunate state of attitude adopted by the defendant’s
attorneys.
Such an attitude is misguided and is in complete disregard
of the provisions of
section 7(1)
of PAIA.
[9]
Section 7(1)
of PAIA reads:
“
(1)
This Act does not apply to a record of a public body or a private
body if –
(a)
that record is
requested for the purpose of criminal or civil proceedings;
(b)
so requested after
the commencement of such criminal or civil proceedings, as the case
maybe, and
(c)
the promotion of or
access to that record for the purposes referred to in paragraph (a)
is provided for in any other law
.”
[10]
Clearly from the provisions of section 7(1) of PAIA referred to in
the preceding paragraph the defence and
attitude adopted on behalf of
the defendant has no merit in law. The defendant as an organ of State
is expected to litigate in
a transparent manner and not be
obstructive as evident herein, especially in matters involving
children. The misguided and technical
approach evinced by the
defendant herein is regrettable. However, and at great credit to
Mr
Maduma
, defendant’s counsel, this defence was not
persistent with during argument.
[11] In
the replying affidavit, the plaintiff alleged that an inspection of
the documents was conducted at the
defendant’s attorneys’
offices but the documents requested were still not made available.
[12]
The defendant, for the first time in the heads of argument and during
oral argument made submissions that
she is not in possession and/or
control of the documents requested in the plaintiff’s Rule
35(3) notice. The defendant was
required in terms of Rule 35(3) to
file an affidavit and state that she was not in possession and /or
control of such documents,
if same were unavailable. As indicated in
paragraph 7 above, a contention was made on behalf of the defendant
that the plaintiff’s
attorney was invited to inspect the
documents. In response to such allegation the plaintiff argued that
the inspection conducted
at the defendant’s attorney’s
office yielded no results. There is no allegation made in the
opposing affidavit that
the documents are not available.
[13]
From the objective evaluation of the averments set out in the
opposing affidavit, the defendant had no defence
not to reply to the
plaintiff’s Rule 35(3) notice. However, I have not ignored the
defendant’s submission raised during
argument that such
documents are not in her possession and / or control. That submission
was taken into account in framing paragraph
2 of the order that I had
issued.
[14] On
the issue of costs, although the plaintiff’s counsel argued for
punitive costs against the defendant,
however in the exercise of my
discretion I was not persuaded that there was any justification for
costs on a punitive scale. It
was based on these reasons that the
order dated 15 June 2022 was issued.
N
GQAMANA
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
for the Applicant
:
Mr Mlalandle
Instructed
by
: Booi & Sons Attorneys
East London
Counsel
for the Defendant
:
Mr Maduma
Instructed
by
: The State Attorney
East London
Date
heard :
: 15 June 2022
Order
issued
: 15 June 2022
Reasons
given
: 20 July 2022