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[2021] ZAGPPHC 40
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Molatoli v Medshield Medical Scheme and Another (405/2021) [2021] ZAGPPHC 40 (26 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
DATE:
26-01- 2021
Case
Number
: 405/2021
In
the matter between:
ADELAIDE
NTSAKO MOLATOLI
APPLICANT
and
MEDSHIELD
MEDICAL SCHEME
FIRST
RESPONDENT
(Reg.
No.: 1140)
COUNCIL
FOR MEDICAL SCHEMES
SECOND
RESPONDENT
JUDGMENT
KUBUSHI
J,
This
judgement is handed down electronically by circulating to the
parties’ representatives by email and by uploading on
Caselines.
[1]
The issue before court today is only on the determination of costs
which are sought
against the first respondent.
[2]
The applicant approached court on an urgent basis seeking an order to
compel the respondents
to provide and /or make available to her an
investigation report that was compiled by Fundudzi Forensic Services
which report allegedly
implicated her in wrong doing.
[3]
The first respondent opposed the application and filed an answering
affidavit to which
the applicant replied. It was only after the
applicant had filed her replying affidavit that the first respondent
provided the
applicant with the report and requested that the
applicant withdraw the application. The applicant agreed not to
proceed with the
application but she is insisting that she is
entitled to the costs of the application on a punitive scale.
[4]
The applicant having received that report, there is no longer any
lis
between the parties and thus no need for the applicant to proceed
with the application in so far as the merits of the dispute are
concerned. The applicant’s submission is that she is entitled
to the order of costs because despite request, the respondents
refused to provide her with the report even though she was entitled
thereto by virtue of being allegedly implicated in it, and,
thus, had
forced her hand to approach court as she did. The applicant contends
that she was entitled to be provided with the report
as soon as it
was made available to the respondents.
[5]
The first respondent contends that it should not be mulcted with
costs because the
applicant, although so informed, refused to
formally request a copy of the report by submitting a request in
terms of the Promotion
of Access to Information Act 2 of 2000
(“PAIA”). The contention is that the applicant approached
court without justification
to rather issue out the present
application after her remedy at law to access the report had been
made clear to her. The first
respondent contends further that it
simply provided the report to the applicant to avoid incurring
unnecessary legal costs.
[6]
I do not intend to go into the merits of whether or not the applicant
should have
formally applied for the report in terms of PAIA as the
merits part of the application are no longer before me. Safe to say
that
if it was the first respondent’s intention to avoid
unnecessary litigation costs, it should have on being served with the
application, immediately provided the applicant with the report.
Instead it chose to oppose the application and even filed an
answering affidavit which the applicant was obliged to reply to.
[7]
On that basis I have to rule that the applicant is entitled to the
costs of the application.
This, however, should not be on a punitive
scale as contended for by the applicant.
[8]
Consequently, I make the following order:-
1.
The application is removed from the
roll.
2.
The first respondent is ordered to pay
the costs of the application.
E.M KUBUSHI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Appearance:
Applicant’s
Representative
: Mr C. Molatoli
Applicant’s
Attorneys
:
Chabeli Molatoli Incorporated.
First
Respondent’s Counsel
: Adv. A.E. Ayaywe.
First
Respondent’s Attorneys
:
Lawtons Incorporated, Trading as Lawtons
Africa.
Date
of hearing
: 26 January 2021
Date
of judgment
: 26 January 2021