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[2021] ZAGPJHC 538
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Member of Executive Council for Health Gauteng Province v Solomons In re: Vulangengqele v Member of Executive Council for Health Gauteng Province (13523/2018) [2021] ZAGPJHC 538 (1 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 13523/2018
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
01/09/
2021
In
the matter between:
MEMBER
OF EXECUTIVE
COUNCIL
Applicant
FOR
HEALTH GAUTENG PROVINCE
and
DR.
REGAN
SOLOMONS
Respondent
In
re:
LINDIWE
URGINIA
VULANGENGQELE
Plaintiff
obo
MILANI VULANGENGQELE
and
MEMBER
OF EXECUTIVE COUNCIL
FOR
HEALTH GAUTENG
PROVINCE
Defendant
JUDGMENT
DIPPENAAR
J
:
Delivered:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by e-mail. The date and
time for hand-down is deemed
to be 10h00 on the 1
st
September 2021.
[1]
The
present application concerns a subpoena
duces
tecum
issued by the applicant
[1]
, the
defendant in the action, (hereinafter referred to as “the
defendant”), on 21 May 2021 (“the subpoena application”).
The subpoena was served on the respondent, (“Professor
Solomons”) on 25 May 2021. Therein, Professor Solomons is
referred
to as “Dr Solomons”. A similar subpoena was
issued for one of the plaintiff’s witnesses in the trial, Dr
Smith.
That subpoena was not served.
[2]
In the subpoena application, the defendant
sought orders: (i) declaring that professor Solomons has no lawful
basis to claim privilege
in respect of the documentation or tape
recordings identified in the subpoena, (ii) directing him to
forthwith hand over the documents
to the registrar and (iii)
ancillary relief.
[3]
On 1 March 2021, I granted an order
granting the plaintiff leave to reopen her case in the trial
proceedings between her and the
defendant. The plaintiff was directed
to deliver her supplementary r36(9) expert summaries and discovery
affidavits by 12 March
2021 and the defendant to do so by 21 May
2021. The ambit of the further evidence to be led pertained to a
research paper (hereinafter
referred to as “the article”)
and was defined in the judgment as:
“
Evidence
on the research paper titled: “
Intrapartum
Basal-Ganglia-Thalamic Pattern Injury and Radiological Termed “Acute
Profound Hypoxic-Ischemic Brain Injury”
are not Synonymous”
by Smith
et
al
. published in the December 2020
American Journal of Perinatology and the implication of this research
paper on the issues of timing
and causation in the trial matter.”
[4]
The article is authored by eight medical
experts from South Africa in the fields of obstetrics, paediatric
neuroradiology, paediatric
neurology and neonatology. The principal
author is Professor Smith, a proposed witness for the plaintiff in
the trial.
[5]
The
trial was enrolled for hearing during the period 14 to 18 June 2021.
The application was argued before the commencement of the
trial.
During the hearing, the defendant indicated that absent the
determination of the application and the provision of the
documentation
sought, the trial could not proceed as the defendant
would be hampered in her cross examination. Judgment in the
application was
reserved and the trial was postponed. Costs were
reserved. The parties were directed to deliver comprehensive heads of
argument.
I further requested and received additional heads of
argument from the parties
[2]
regarding whether the Protection of Personal Information Act
(“POPIA”)
[3]
was
applicable.
[6]
The subpoena here in issue pertained to
certain statements made in the article and specifically to references
to 195 cases and 63
cases under the heading “Materials and
Methods”.
[7]
In its terms, the subpoena called upon
Professor Solomons to provide to the registrar:
“
1
documents setting out the names of the parties, the division of the
High Court that heard the matter, the case numbers and the
judgments
in each of the 195 medico legal actions that are referred to on page
2 of the article titled “Intrapartum Basil
Ganglia-Thalamic
Pattern Injury and Radiologically Termed ‘Acute Profound
Hypoxic-Ischaemic Brain Injury’ are not Synonomous’
dated
4 November 2020, which article was authored by Johan Smith MD, PhD,
Regan Solomons, MD PhD, Lindi Vollmer, MD, MMed, Eduard
J Langenegger
MD, PhD, Jan W Lotz, MD, MMed, Savvas Andronikou, MD, PhD, John
Anthony, MD, MPhil and Ronald van Toorn, MD, PhD
(hereinafter “the
Article”); and
2 all supporting
documentation including but not limited to, raw data, expert reports,
medical records, and MRI scans relating to
the 63 cases referred to
in the sentence on page 3 of the article that reads: “Sixty-three
(33.5%) cases with BGT pattern
HII remained. However, in only 21cases
were there limited electronic reviews by cardiotocography (CGT)
during labour. The image
findings of delayed MRI scans in these cases
were subsequently reviewed in a blinded and separate assessment by
two neuro radiologists
(SA and JWL)”
[8]
Professor Solomons by way of letter dated 4
June 2021 objected to the production of the documents, the relevant
portion of which
provided:
“
3.
Prof Solomons claims privilege to the
information requested by your client. The information is privileged
because of:
3.1 the
confidentiality of patient information; and
3.2 the ethical and
legal obligation of research institutions and researchers to protect
personal information of research participants,
in order to ensure
that their identities are not revealed.”
[9]
The subpoena application was launched on 9
June 2021, to be heard prior to the commencement of the trial on 14
June 2021. The plaintiff
was not cited as a party to the application.
[10]
The
case made out by the defendant in her founding papers was a narrow
one. In sum, it was contended that Professor Solomons had
no lawful
basis on which to legitimately claim privilege to the documents. The
documents sought in the subpoena formed part of
documents in medico
legal actions which have been or are still pending before the courts
and as such those documents were public
documents and not subject to
a claim of confidentiality or privilege. Professor Solomon’s
reliance on privilege and/or confidentiality
was thus misplaced.
Reliance was placed on s35 of the Superior Courts Act
[4]
and Uniform rule 38, which regulates the issuing of subpoenas
duces
tecum
as
well as the open court principle and access to justice under s34 of
the Constitution. That was the case Professor Solomons was
called
upon to meet
[5]
.
[11]
In her replying papers, the defendant for
the first time raised the relevance of the documents sought in the
subpoena. The defendant
contended: “
However,
insofar as it is suggested that the relevance of the documents may be
in issue, I refer to the reports which have been
filed by the
applicant’s experts”.
This
constitutes a reference to expert reports filed in the trial
proceedings by the defendant’s experts, Professors Bolton,
Cooper and Smuts, which did not form part of the application papers.
The replying affidavit went on to provide various reasons
why the
documents would be relevant.
[12]
The answering affidavit of Professor
Solomons was preceded by a letter articulating the basis of his
opposition to the application
after receipt thereof. The main grounds
of opposition raised were: (i) a lack of urgency, justifying the
striking of the application
from the roll; (ii) the undisputed
averment that Prof Solomons was not in possession of the
documentation sought in the subpoena
and (iii) in support for his
entitlement to costs, it was contended that even if Professor
Solomons had the documentation sought,
he was prohibited from
disclosing patient information absent the patient’s consent in
terms of the relevant legislative provisions.
In his answering
affidavit, Professor Solomons tendered the production of certain
de-identified documents in his possession. That
tender was not
accepted by the defendant.
[13]
The application was also opposed by the
plaintiff who was not cited as a party to the application and who did
not deliver any answering
papers. After being directed to do so,
heads of argument were filed on her behalf, in which she sought an
order dismissing the
subpoena application; first, on the grounds
advanced by Professor Solomons and second, on the basis that
disclosure of the documents
and other material sought and to be
sought from Professor Smith in terms of his unserved subpoena when he
testifies at the trial
is not permitted as it would give rise to
collateral issues which are not admissible in evidence. She further
sought the costs
of the application as well as the wasted costs of
the postponed trial, including the costs of two counsel.
[14]
In dealing with the collateral evidence
issue raised by the plaintiff in her heads of argument, the defendant
challenged the plaintiff’s
locus standi to oppose the
application. In the alternative, it was argued that the issue whether
the documents may be used during
the trial and in cross examination
and whether defendant’s experts can comment thereon are matters
that will have to be determined
during the trial.
[15]
The challenge to the plaintiff’s
locus standi can be disposed of succinctly. In her replying
affidavit, the defendant attempted
to bolster the case made out in
her founding papers substantially by extensive references to the
relevance of the documentation
sought to the trial proceedings and
the proposed subpoena which could not be served on one of the
plaintiff’s witness, Professor
Smith, straying outside the
ambit of the application papers and making reference to the expert
reports delivered by the defendant
in the trial proceedings. In my
view, the plaintiff does have a direct and substantial interest in
the subject matter of the application,
which will have a direct
impact on the ambit of the trial and should have been joined as a
party to the application. The challenge
thus lacks merit.
[16]
As
a general principle, it is trite that a court should not range beyond
that which it has been asked to adjudicate; in other words,
it should
adjudicate the case made out in the papers and the issues raised
therein. It is for the parties to identify the dispute
and for the
court to determine that dispute
[6]
.
Our courts have further held that there are cases where the parties
may expand those issues by the way in which they conduct the
proceedings and instances where a court may
mero
motu
raise a question of law that emerges fully from the evidence and is
necessary for the decision of the case, albeit subject to the
proviso
that no prejudice would be caused to any party by it being decided.
This is not one of those cases.
[17]
The defendant’s founding papers
focused on Professor Solomons and made out no case for relief against
the plaintiff or against
Professor Smuts. The relevance issue was
only raised in reply, thereby raising a host of issues relevant to
the trial action, which
were dealt with in argument and not on the
application papers. The debate between the plaintiff and defendant
centered around the
admissibility and relevance of the documents and
whether they would constitute collateral issues in the pending trial
proceedings.
The plaintiff argued that “
it
has thus become pertinent for the court to come to a definitive
decision notwithstanding the finding in regard to the application
against Professor Solomons, what route the trial will take when
Professor Smith gives evidence when reliance will be placed on
the
findings in the article
”. The
defendant, although initially contending that such issues were to be
dealt with in due course in the trial proceedings,
ultimately
presented substantial argument in her heads of argument on the issue
and adopted the position that it was in the interests
of justice to
determine the defendant’s entitlement to the documents and the
claim for confidentiality therein.
[18]
The fundamental difficulty with such an
approach is that both the defendant and the plaintiff traversed
various issues ranging outside
the ambit of the issues raised and
dealt with comprehensively in the application papers. It may well be
that these issues arise
during the course of the trial proceedings,
but it is not in my view appropriate or possible to determine those
issues now and
in the present application.
[19]
This is so for various reasons. First, the
founding papers in the subpoena application are squarely based at
obtaining an order
against a third party, Professor Solomons, who is
not a party to the action proceedings and is not even a witness in
those proceedings.
Second, those issues traversed by the plaintiff
and defendant were not expressly raised or dealt with comprehensively
in the application
papers, other than a limited reference in the
defendant’s replying papers to the relevance of the documents.
Third, those
issues arise, not in the context of the present
application and the subpoena served on Professor Solomons, but rather
in the context
of the proposed subpoena to be served on Professor
Smith and the evidence which is to be presented at trial. Fourth, it
was argued
by both the plaintiff and the defendant that the issues
raised may affect many litigants in other cases. As such it would be
inappropriate
to attempt to determine issues of broad impact absent a
proper application which expressly raises and canvasses such issues.
Fifth,
the subpoena is cast in very broad and general terms and it
cannot be determined from the application papers exactly what
information
is in issue without resorting to speculation. The
subpoena is aimed at obtaining all the underpinning information used
for the
preparation of the article to challenge the cogency and
correctness of the article and covers a wide ambit of unknown
documents.
[20]
If the plaintiff and defendant require
these issues to be addressed before the trial resumes, it is open to
them to consider the
launching of appropriate proceedings to address
and obtain clarity on these issues. I shall thus refrain from making
any findings
on the issues of admissibility and relevance of the
documents sought. The defendant’s view was that the trial could
not proceed
until the issue was decided as it was central to the
defence the defendant would be entitled to make. That meant the
inevitable
postponement of the trial.
[21]
I turn to a consideration of the case made
out on the application papers. It is apposite to first deal with the
urgency challenge.
Seen from the perspective of Professor Solomons,
the application was launched with great urgency, without a proper
case being made
out for urgency in the founding papers. Even if the
application, seen in the context of the action proceedings, is an
interlocutory
one incidental to the main action proceedings,
Professor Solomons is not a party to those proceedings and the
plaintiff was not
joined as a party thereto. I am however not
persuaded that the application should be struck for lack of urgency.
The fashion in
which the application was launched, however has an
impact on an appropriate order of costs, an issue to which I later
return.
[22]
Turning
to the merits, the defendant’s argument that no privilege or
confidentiality vested in the documents sought in paragraph
1 of the
subpoena, was based on the trite principle that they were matters of
public record and the default position is one of
openness, unless a
court otherwise orders. The right to open justice must include the
right to have access to papers and written
arguments which are an
integral part of court proceedings.
[7]
In short, the open court principle in practice entails that court
proceedings including the evidence and documents disclosed in
proceedings should be open to public scrutiny and that judges should
give their decisions in public
[8]
.
S34 of the Constitution affords litigants the right to a public
hearing. Reliance was placed on
City
of Cape Town v South African National Roads Authority Limited &
Others
[9]
where the relevant principle is stated thus
[10]
:
“
The
animating principle therefore has to be that all court records are,
by default, public documents that are open to public scrutiny
at all
times. While there may be situations justifying a departure from that
default position-the interests of children, State
security or even
commercial confidentiality-any departure is an exception and must be
justified.”
[23]
Under r38 a party is of right entitled to
issue a subpoena. Neither of the opposing parties invoked the
provisions of s36(5) of
the Act to have the subpoena set aside as an
abuse, neither did the plaintiff. Under s36(5) a subpoena may be set
aside if it appears
(i) that the person concerned is unable to give
any evidence or produce any document which would be relevant to any
issue in the
proceedings (ii) such document could properly be
produced by some other person; (iii) to compel the person to attend
would be an
abuse of the process of the court.
[24]
Although
I agree that the documents filed of record in trial proceedings are
matters of public record, no case has been made out
in the founding
papers exactly what such documents would encompass and to what extent
they have been discovered in those legal
proceedings. The description
of the documents in the subpoena are in general and broad terms and I
am not persuaded that the documents
have been sufficiently specified
as envisaged by r38
[11]
[1]. I
am further not persuaded that the documents sought in item 2 of the
subpoena have been sufficiently described or that they
were
necessarily discovered in the legal proceedings and thus constitute
public documents. From the founding papers it cannot be
ascertained
which of these document would in fact constitute matters of public
record.
[25]
Professor Solomons’ version that he
was not in possession of the documents sought in the subpoena was not
disputed, which
rendered the relief sought in prayer 2 of defendant’s
notice of motion moot.
[26]
In the defendant’s heads of argument,
focus was placed primarily on the declaratory order sought and
amended relief that Professor
Solomons was obliged to inform the
registrar of the whereabouts of the documents sought in the subpoena,
despite Professor Solomons’
counsel placing on record his
instruction that the whereabouts of the documents were unknown by
him. Despite being challenged in
defendant’s heads of argument,
no further affidavit was filed by Professor Solomons. That issue is
not however dispositive
of the application. The defendant argued that
the declaratory relief should be determined because of the unserved
subpoena on Professor
Smith and the plaintiff’s reluctance to
comply with defendant’s reasonable request to inform Professor
Smith that he
would have to produce the documents and the issue of
costs. The defendant however failed to draw any distinction between
the right
to obtain documentation and the obligation to produce
documentation.
[27]
Professor
Solomons’ argument centered around the confidentiality
obligations imposed on him in terms of s 14(2) (a) and (b)
of the
National Health Care Act
[12]
,
regulation 13 of the Ethical Rules of Conduct of Practitioners
registered under the Health Professions Act
[13]
and the Ethical Guidelines for good practice of the Health
Professions Council of SA relating to patient confidentiality. It was
argued that even if he had been in possession, he was not at liberty
to provide them absent consent of the patients involved or
a court
order due to the confidentiality restrictions The latter issue was
raised in the context of costs. It was argued that the
defendant
should be aware of the relevant legislation and should not have
issued the subpoena but should rather adopted a different
procedure
and should have approached the court justifying why the documentation
sought is relevant and tendering safeguard regarding
protection of
the confidentiality of patient information.
[28]
S
14(1) of the National Health Act deems it imperative and mandatory to
afford the information recorded on the health records protection
against unauthorised disclosure. The private information contained in
the health records of a user is worthy of protection as an
aspect of
human autonomy and dignity under the Constitution
[14]
. S14(2) renders all of a patient’s information relating to his
or her health status, treatment or stay in a health establishment
confidential. The prohibition may be lifted in three instances, if
(i) the patient consents to the disclosure; (ii) a court orders
the
disclosure or (iii) the disclosure is in the interests of public
health. In each instance, the need for access should be weighed
against the privacy issue.
[15]
[29]
Reliance
was further placed on regulation 13 of the Ethical Rules of Conduct
of Practitioners registered under the Health Professions
Act 36 of
1974
[16]
and the ethical
guidelines, specifically booklet 5, paragraphs 3.1 and 3.2, 8,
dealing with the disclosure of information other
than for treatment,
including research, and paragraph 8.2.3 which draws a distinction
between “identifiable patient data”,
which can only be
disclosed “with informed consent of the patient” and
“de-identified data”. Reliance was
also placed on
paragraphs 8.2.3.4 and 9.1.3 requiring that data should be anonymized
if it is not practical to contact patient
to seek consent for the use
of identifiable data or samples and paragraphs 10.2 and 10.3 which
refers to the disclosure of information
if ordered to do so by a
judge or presiding officer of a court.
[30]
In the present application, the defendant
has simply not placed all the relevant information before the court
to enable it to perform
that exercise and to determine whether an
order should be granted directing the disclosure of the documents
sought. I agree with
the argument advanced by Professor Solomons that
the defendant utilised the wrong procedure by simply issuing a
subpoena.
[31]
Under s36(1)(c) of the Superior Courts Act,
a party is required to produce documentation unless there is a just
excuse for the production
thereof. The ambit of a just excuse is wide
enough to cover the confidentiality obligations imposed upon
Professor Solomons. It
can therefor not be concluded that Professor
Solomons was in willful disobeyance of the subpoena or that the
defendant is without
more entitled to the documentation sought.
[32]
The
defendant’s argument was that on a proper interpretation of
each of the relevant statutory provisions, individually or
collectively, a person in possession of information relating to a
patient, whether the person concerned is a medical person or
not, is
not entitled to claim confidentiality in respect of that information,
if such information is required to be disclosed in
terms of a
statutory provision. The statutory basis on which the subpoena was
issued is s35 of the Superior Courts Act. That argument
disregards
that s35 cannot be viewed in isolation but must also be considered in
the context of all other relevant statutory provisions
and that a
litigant is not always entitled to production of documents. As held
in
Beinash
v Wixley
[17]
:
“
Ordinarily
a litigant is of course entitled to obtain production of any document
relevant to his or her case in the pursuit of the
truth, unless the
disclosure of the document is protected by law.
”
[33]
There is also merit in professor Solomons’
argument that the defendant, by virtue of her office, is fully aware
of the relevant
legislative framework and should have approached the
court by way of an application justifying why the documentation
sought is
relevant and tendering certain safeguards for the
protection of personal information. It was argued that it is not a
question of
a court declaring the patient information confidential or
not as patient information is confidential by virtue of the
legislative
framework and can only be disclosed under very specific
instances. There is merit in the argument that the defendant should
at
least reasonably have been aware that professor Solomons was
prohibited from disclosing the information sought to the registrar
under the subpoena. I agree that the service of the subpoena and the
present application was misconceived and that a court should
have
been approached for an order directing disclosure as contemplated in
the legislative framework. The defendant’s argument
that
confidentiality had been waived lacks merit. No such case was made
out in the defendant’s founding papers and no indication
has
been given what the documents sought entails, whether consent was
provided or whether any conditions were imposed safeguarding
disclosure of patient information.
[34]
The
declaratory relief sought in the application, although ostensibly
limited to Professor Solomon’s claim to confidentiality
may
have much wider import on other cases. There is merit in his
contention that there is confidentiality in the documentation
ex
lege
and that the declaratory order is unnecessary. Whether disclosure of
the documentation should be directed by a court order, is
an entirely
different issue. No case for such relief was made out in the founding
papers. Declaratory relief with wide import absent
a proper factual
foundation being laid for such relief, cannot be countenanced. The
defendant in my view manifestly failed to make
out a case in her
founding papers for the production of the documentation sought in the
subpoena or for the granting of the declaratory
relief sought as she
was obliged to do
[18]
. On this
basis, her application is doomed to failure and it is not necessary
to make a definitive determination in this application
regarding
whether confidentiality can be claimed in the documents. It was
argued by both the plaintiff and the defendant that the
issues raised
may affect many litigants in other cases. As such it would be
inappropriate to attempt to determine issues of broad
impact absent a
proper application which expressly raises and canvasses such issues.
As previously stated, the subpoena is cast
in very broad and general
terms and it cannot be determined from the application papers exactly
what information is in issue without
resorting to speculation. The
subpoena is aimed at obtaining all the underpinning information used
for the preparation of the article
to challenge the cogency and
correctness of the article, without giving sufficient content to the
documentation required to undertake
the necessary enquiries.
[35]
For these reasons the application must
fail.
[36]
Turning to the costs of the application,
the defendant sought to cast aspersions on the conduct of the
respondent in not disclosing
earlier than in his answering papers
that he was not in possession of the documents sought in the
subpoena. I am not persuaded
that these allegations have merit.
Considering all the facts, including the fashion in which the
application was brought, there
is no reason to deviate from the
normal principle that costs follow the result.
[37]
The last issue is the determination of
costs for the postponement of the trial on 15 June 2021. It was the
belated launching of
the subpoena application heard on the morning of
the trial that resulted in its postponement. In such circumstances,
the defendant
should be held liable for the wasted costs. Considering
the complexities of the matter, the employment of two counsel by the
plaintiff
was justified.
[38]
I grant the following order:
[1] The application is
dismissed.
[2] The defendant is
directed to pay the costs of the respondent and the costs of the
plaintiff, including the costs of two counsel.
[3] The defendant is
directed to pay the plaintiff’s wasted costs occasioned by the
postponement of the trial, including the
costs of two counsel.
EF
DIPPENAAR
JUDGE
OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
DATES
OF HEARING
:
14 and 15 June 2021
DATE
OF JUDGMENT
:
01 September 2021
APPLICANT/
DEFENDANTS COUNSEL
:
Adv. V. Soni SC
Adv. T. Masevhe
APPLICANT/
DEFENDANTS ATTORNEYS
:
State Attorneys
Ms L Mahlangu
RESPONDENT’S
COUNSEL
:
Adv. R.J. Steyn
RESPONDENT’S
ATTORNEYS
:
Cluver Markotter Inc
Mr B Hess
PLAINTIFF’S
COUNSEL
:
Adv. J Wessels SC
:
Adv. C. Mckelvey
:
Adv Padaychee
PLAINTIFF’S
ATTORNEYS
:
Nonxuba Inc.
Mr Nonxuba
[1]
The
applicant is a major female and shall be referred to as “her”
where appropriate
[2]
On
25 June 2021
[3]
Act
4 of 2013, which came into force on 1 July 2021, after the
application was argued but before judgment was delivered.
[4]
10
of 2013
[5]
Administrator
Transvaal and Others v Theletsane
1991
(2) SA 192 (A)
[6]
City
of Cape Town v South African National Roads Authority Ltd and Others
(“SANRAL”) paras 9 and 10 and the authorities
quoted
therein; Fischer v Ramahlele
2014 (4) SA 614
(SCA) paras 13 and 14
as quoted in SANRAL para 10
[7]
SANRAL
para 19
[8]
SANRAL
para 12-17
[9]
(2078/2014)
[2015] ZASCA 58
(30 March 2015) para [47]
[10]
Para
47
[11]
Beinash
v Wixley 1997 (3) SA 721 (SCA)
[12]
61
of 2003
[13]
36
of 1974, regulations published in GN R717 Government Gazette 29079
of 4 August 2006
[14]
Tshabalala-Msimang
and Another v Makhanya and Others
[2007] ZAGPHC 161
;
2008 (6) SA 102
(W) para [27]
[15]
NM
and Others v Smith and Others
[2007] ZACC 6
;
2007 (5) SA 250
(CC) paras 40-43
[16]
Published
under government notice R717 in GG 29079 of August 2006 (“the
ethical rules”)
[17]
1997
(3) SA 721 (SCA)
[18]
Hart
v Pinetown Drive-In Cinema (Pty) Ltd
1972 (1) SA 464
(D); Titty’s
Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd
1974 (4) SA
362
(T)