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[2021] ZALMPPHC 16
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Mulaudzi v Platinum Health Medical Scheme (6860/2018) [2021] ZALMPPHC 16 (4 May 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NUMBER:6860/2018
In
the matter between:
DR
MAILI CALFORNIA MULAUDZI
APPLICANT
And
PLATINUM
HEALTH MEDICAL SCHEME
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The applicant who is the defendant in the main action is a medical
doctor practising
as a dentist. The respondent who is the plaintiff
in the main action is a medical aid scheme. The respondent was the
appointed
medical aid scheme for Atlatsa Mining Company which has
since closed down its operations at Bokoni Platinum Mine. The
applicant
used to treat the employees of Atlatsa Mining Company and
thereafter claim from the respondent for services rendered.
[2]
After the operations of Atlatsa were closed down, the respondent
instituted action against the
applicant alleging that the applicant
had made a false representation that she had rendered necessary
services to retrenched employees
and thereafter submitted claims to
the respondent for payment, whilst in actual fact she did not render
the services as alleged
or at all.
[3]
On being served with the respondents combined summons, on 13
th
June 2019 the applicant served and filed her notice of intention to
defend the respondent’s action. On 5
th
July 2019 the
applicant served and filed her notice to strike out in terms of Rule
23(2) of the Uniform Rules of Court (the Rules)
which was set down
for the 8
th
October 2019. On the 3
rd
October
2019 the applicant removed her application to strike out from the
roll. On 25
th
October 2019 the applicant filed a notice of
withdrawal of her application to strike out and at the same time
filed a notice in
terms of Rule 35(14).
[4]
In the Rule 35(14) notice, the applicant had listed seven questions
in which she required respondent
to furnish her with certain
documents. The respondent had replied to the applicant’s Rule
35(14) and furnished the applicant
with some of the documents, whilst
for others the respondent has stated it was not obliged to provide
the applicant with the said
documents as they were not necessary for
purposes of pleading, or that the information required by the
applicant did not constitute
a document, or that the documents
requested were not in its possession or under its control.
[5]
The applicant was dissatisfied in the manner in which the respondent
had replied to her Rule 35(14)
notice. That resulted in the applicant
launching an application seeking an order that the respondent be
compelled to reply to her
Rule 35(14) notice, and also produce the
documents listed for the applicant to have access to the said
documents for purposes of
pleading to which reference is made by the
respondent in paragraphs 4,5,6,7 and 8 of the particulars of claim in
the main action.
The respondent is opposing the applicant’s
application, and has stated that the documents which the applicant is
requesting
are not required, let alone necessary for purposes of
filing a plea.
[6]
In this court counsel for the applicant had argued that once
documents are relied upon for purpose
of making a claim, such
documents should be made available to the other party even the
documents are privileged. The applicant
further submitted that the
respondent had furnished her with an incomplete report which was
compiled without interviewing her,
in which case the
audi alteram
partem
principle were not compiled with. It is the applicant’s
contention that the documents she had requested constitute essential
documents for purpose of pleading as they will allow her to check her
books if indeed such members were retrenched at the time
of such
treatment if there was any such treatment, check the authenticity of
the forensic report against her and enable her to
challenge its
validity, and check if there was any complaint against her by any
member of the aforesaid medical scheme who were
part of the alleged
retrenched members.
[7]
Before this court counsel for the respondent had submitted that Rule
35(14) does not provide a
mechanism whereby a party, making use of
generic terms, can cast a net which to fish for vaguely known
documents. It is the respondent’s
contention that the seven
questions raised by the applicant in her Rule 35(14) do not
necessarily refer to specific documents and
that they are at best a
fishing expedition, alternatively, the information sought therein is
not necessary to file a plea. The
respondent submitted that in
respect of the seven questions raised by the applicant, in respect of
the 1
st
and 6
th
questions it had furnished the
applicant with the forensic report. With regard to question 2,3,4 and
5 there were no documents
either available to which the applicant was
entitled. Counsel for the respondent further submitted that the
respondent insofar
as the forensic report is concerned, it was
pertinently recorded that the contents of the report relates to other
doctors, as such
those facts had no bearing against the applicant’s
case. However, the applicant’s attorneys were offered to peruse
the original report on condition a proper confidentiality agreement
was signed. It is the respondent’s contention that to
date the
applicant has not accepted that offer, and further that the same
offer was again tendered in the respondent’s answering
affidavit.
[8]
The applicant has not yet pleaded to the respondent’s
particulars of claim. Rule 35(14)
is used by a party who alleges that
he/she requires discovery of certain documents or tape recordings for
purposes of pleading.
The rule read as follows:
“
After appearance
to defend has been entered, any party to any action may, for purposes
of pleading, require any other party to make
available for inspection
within five days a clearly specified document or tape recording in
his possession which is relevant to
a reasonably anticipated issue in
the action and to allow a copy or transcription to be made thereof.”
[9]
The right to obtain information under Rule 35(14) is limited to
documents or tape recordings that
are relevant to a reasonably
anticipated issue in an action and also for documents required for
purposes of pleading. (See
Quayside Fish Suppliers CC v Irvin &
Johnson Ltd
2000 (2) SA 529
(C)
at para 13).
[10]
The respondent’s paragraphs 4,5,6,7 and 8 of the particulars of
claim read as follows:
“
4. During
September 2017 one of participating employers of the plaintiff, a
mining company called Atlatsa closed down their operations
at their
Bokoni Platinum Mine situated near Atok.
5. In this regard, they
retrenched all their employees at this mine effective 30 September
2017 which amounted to some 3000 members
of the plaintiff (“the
Bokoni members”)
6. As part of their
retrenchment packages these members were entitled to remain on
Platinum Health’s Medical Scheme for an
additional three
months, in other word from 1 October 2017 until December 2017 and
their contributions were to be paid to Platinum
Health as part of
their retrenchment package.
7. Prior to the date of
retrenchment (30 September 2017) the defendant conducted negligible
business with the members of the plaintiff
and particularly Bokoni
members.
8. However, after the
date of retrenchment and the three months period, the plaintiff
noticed a substantial spike in claims submitted
by the defendant to
the plaintiff for Bokoni members which gave rise to the launching of
a forensic investigation, the conclusion
of which results in the
issuing of these particulars of claim.”
[11]
The applicant’s seven questions in terms of Rule 35(14) read as
follows:
“
1. The list
of the affected people in the alleged fraudulent claims done by the
defendant.
2.The sworn statement by
the alleged beneficiaries listed on the list requested above
confirming that indeed they were treated by
the defendant during 01
December 2017 until 31 December 2017, and that there were fraudulent
claims made by the defendant on the
alleged medical scheme.
Furthermore, such sworn statement should confirm that the alleged
beneficiaries of the medical scheme are
the complainant in these
claims.
3.The plaintiff must
supply defendant with proof of the closing down of the Mining Company
called Atlatsa at Bokoni Platinum Mine
situated near Atok during
2017.
4.The list of the alleged
3000 retrenched employees from Bokoni Platinum Mine near Atok during
September 2017.
5.The plaintiff must
provide proof that the alleged retrenched workers were entitled to
remain on Platinum Health’s Medical
Scheme for an additional
three months, in other words from 01
st
October 2017 until
31 December 2017, and that their contributions were to be paid to
Platinum Health as their retrenchment package
6.The plaintiff must
provide for the list of people who were treated by the defendant who
are members of Platinum Medical Scheme
after the alleged retrenchment
took place.
7.The plaintiff must
provide the defendant with the forensic investigation report, in
which resulted in them issuing claim against
defendant for the
alleged fraudulent claims done by the defendant during 01 October
2017 until 31 November 2017.”
[12]
It is trite that the plea is the defendant’s answer to the
plaintiff’s declaration or particulars
of claim. In terms of
Rule 22(2) the defendant shall in his/her plea either admit or deny,
or confess and avoid all the material
facts in the combined summons
or declaration, or state which of the said facts are not admitted and
to what extent, and shall clearly
and concisely state all material
facts upon which he/she relies.
[13]
Basically the respondent’s claim against the applicant is that
the applicant purportedly examined and
diagnosed employees of Atlatsa
Mining who were members of the respondent, and thereafter submitted
claims to the respondent in
respect of services rendered. According
to the respondent the applicant had made fraudulent representations
to the respondent,
knowing that the representations were false as the
applicant did not render those services, and that where dentistry
services were
in fact rendered by the applicant, those services were
over inflated.
[14]
The applicant’s question 1 in terms of Rule 35(4) has requested
a list of the affected people in the
alleged fraudulent claims done
by the defendant. The respondent had furnished the applicant with
that list. Paragraph 9.1 of the
respondent’s particulars of
claim state that during the period 1
st
October and up
until 31
st
December 2017 the applicant purported to
examine and diagnose patients all of whom were members of the
plaintiff referred to as
the so-called Bokoni members and purported
to render certain services.
[15]
The respondent had stated in its particulars of claim the period
wherein the alleged fraudulent activities
took place. The applicant
is having the list of the affected people in the alleged fraudulent
claims, and also the period wherein
these activities allegedly took
place. In my view, it will be easy for the applicant to go to her own
records and check whether
during that period she had examined and
diagnosed any of the people that appears on that list. Based on that
information she will
be able to plead wherein she will either admit
or deny or confess and avoid all the material facts alleged in the
combined summons,
and also to state all material facts upon which she
relies. The main issue is whether she had rendered those services and
also
where she had rendered, whether her services were over inflated.
By checking her own records, she will be able to answer to the
respondent’s claim as contained in the combined summons.
[16]
In Ingledew v Financial Services board
[2003] ZACC 8
;
2003 (4) SA 584
(CC)
at 595 B-C Ngcobo J said:
“
In the first
place, we are concerned with an order made at a very early stage of
pleading, a stage prior to the delivery of a plea.
It is patently
clear from the record that the applicant is able to formulate and
articulate his defences, in particular, if regard
is had to the
nature of the allegations against him. The matter must therefore be
approached on the footing that even if the applicant
were to be
refused the information sought, he would be able to plead. The order
made by the High Court does not prejudice the applicant
in any way in
the future conduct of the case. This immediately distinguishes it
from other orders which might well influence how
litigant conducts
the case.”
[17]
As I have already pointed in paragraph 15
supra
, that with the
information which the applicant is having at her disposal, she will
be able to formulate an answer to the respondent’s
claim as
contained in its particulars of claim, it follows that the documents
sought by the applicant are not essential for purposes
of pleading,
and she will not be prejudiced in pleading without them. After
pleading, should the applicant feel that the document
she is
presently seeking are relevant issues for trial, she can utilise the
pre-trial discovery procedures set out in the remainder
of Rule 35.
[18]
In the result I make the following order.
18.1 The applicant’s
application is dismissed with costs
MF.
KGANYAGO J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCE:
Counsel
for the Applicant
Adv
R Mathevula
Instructed
by
Michael
Raphela Attorneys
Counsel
for the Respondent
Adv
Hershensohn
Instructed
by
Lombard
& Partners INC
Date
of hearing
17
March 2021
Date
of Judgment
4
th
May 2021