IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of Interest to other Judges: YES/NO
Circulate to Magistrates: YES/NO

Case number: 701/2019


In the matter between:

MANGAUNG HEALTH CARE CENTRE (PTY) LTD Applicant

and

THE HEAD OF THE DEPARTMENT:

FREE STATE PROVINCIAL GOVERNMENT 1st Respondent

THE MEC: FREE STATE PROVINCIAL

GOVERNMENT: DEPARTMENT OF HEALTH 2nd Respondent


CORAM: MHLAMBI J, et MOLITSOANE J


HEARD ON: 02 SEPTEBER 2019


DELIVERED ON: 21 November 2019


2

MHLAMBI, J

Introduction

[1] The applicant wants to build a hospital, Mr Grobler SC submitted
on behalf of the applicant. Fair enough, but follow the proper
channels, was the subtle response in the respondents’ papers
and the submissions by their counsel Mr Cassim SC.

[2] The applicant approached this court by way of application for an
order in the following terms:
“1. The First Respondent is ordered to within five days after date of the
order, enter the Applicant’s name into the Register for Private Health
Facilities in all accordance with the Second Respondent’s
determination of 28 May 2018 , and related to the Applican t’s request
for such registration as a private hospital with 200 acute beds and 120
sub-acute beds, such duty befalling the First Respondent in terms of
Regulation 3, 16, 17 of the Provincial Regulations published in the Free
State Provincial Gazette on 09 September 2014 , i ssued further in
terms of section 16(1)(i) of the Free State Hospitals Act, 13 of 1996.
2. The First Respondent is ordered to within 5 days after date of the order
adjudicate upon the Applicant’s request of 27 November 2018 fro m
relocation of its licence referred to in prayer 1 from Plot 22, Cnr Rudolf
Greyling & AW Louw Avenue, Estoire, Bloemfontein to Erf 29573 and
29574, Extension 18, Bloemfontein, and inform the Applicant of the
outcome.
3. The Respondents are ordered to pay the costs of the Application jointly
and severally, payment by one the other to be absolved.
4. Further and/or alternative relief.”

[3] For the sake of brevity and convenien ce, the first and second
respondents will be referred to collectively as the “Department”;
3

the first respondent as the “HOD” where necessary and the
applicant as the “Centre”.

[4] The Department opposed the application on the grounds that the
successful internal appeal on which the application was based ,
was unlawfully and invali dly dealt with. It filed a counter -
application for review , contending that the former MEC did not
comply with the applicable laws and regulations when
determining the Centre’s appeal , and accordingly, under the
principle of legality, that decision stood to be reviewed and set
aside by this court. In relation to the second part of the relief
sought by the applicant (as contained in prayer 2 of the notice of
motion), it submitted that the correct administrative processes in
applying for the relocation of its licence were not followed by the
Centre and the Centre was therefore not entitled to the relief
sought.

[5] At the inception of the hearing of the application , it was agreed
between the parties that if the court found in favour of the
Department and grant ed the relief in the counter -application for
review, the mandatory relief sought by the Centre in its main
application must fail; conversely, if the review applicat ion wa s
unsuccessful, then the mandamus application should succeed.
Consequently, the Department had a duty to begin as the
outcome of the review application would be disposi tive of the
whole application. The Centre conceded that it had a hurdle to
cross in respect of its claim for the relocation of the licence as
sought in prayer 2.

4


[6] The following relief is sought in the counter-application/ review:
“1. To the extent necessary, condoning the respondents/applicants’
departure from the provisions and time periods provided for in rule 53.

2. The decision of the former MEC of the Free State Provincial
Government: Department of Health, BM Khompela dated 8 May 2018
to uphold the app licant/respondent’s appeal and to permit it to register
a private health establishment as applied for, is hereby reviewed and
set aside;

3. The applicant/respondent is permitted, should it so wish, to file with the
second respondent/applicant a fresh app eal within (5 days) of this
court’s order, which appeal the second respondent/applicant will
consider in accordance with the provision of Regulation 17 of the
Private Health E stablishment Regulations, 2014, read with the 2017
amendments thereto.
4. That there is no order as to costs.”

[7] The Centre opposed the review on the basis that there was an
inordinate delay in the institution of the review proceedings and
that the application lacked substance as it “second-guessed” the
former MEC’s decision. The Department failed to place the review
record before this court. It was therefore not possible to
adjudicate whether the former MEC’s decision was reviewable.
The relief sought by the Department in the review (which they
allege to be just and equitable), divested the Centre of its rights
and did not alleviate any prejudice at all.



5


Issues

[8] The issues for determination are therefore narrowed to the
following:

1. Whether the review was launched within a reasonable time;
2. Whether the former MEC’s conduct was consistent with the
applicable regulations and thus the rule of law;
3. The review record;
4. An appropriate remedy;
5. Costs.

Background

[9] The brief background : On 15 January 2018, the Centre filed an
application in its own name with the department for the
registration of a private health establishment for the licencing and
registration of 150 sub -acute beds and 200 acute beds. The
application was submitted to the HOD who in turn referred it to an
appointed committee for adjudication.

[10] The appointed committee considered the application on 05 April
2018 and recommended to the HOD that the Centre’s application
for 200 acute beds be denied and the one for 150 sub-acute beds
be partially granted and restricted to 80 beds. The HOD informed
the Centre of the o utcome of its applications on 20 April 2018 .
The Centre apparently submitted appeals to the MEC against
both decisions on 26 April 2019. T he MEC’s response was
6

contained in two letters dated 8 May 2018 in which he advised the
Centre that both of its appeals were successful.
[11] On 27 November 2018 , the Centre sent a letter to the hospital
licensing committee demanding , firstly, guidelines as to the way
forward as it had been waiting for a response and guidance from
the department since the appeals were upheld by the then MEC ,
BM Khompela, on 8 May 2018. Secondly, it had acquired a big
hospital property investor that owned erven 29573 and 29574,
Extension 181. The investment was conditional to the successful
relocation of the 200 acute bed licence to this site, for which the
applicant (as per the contents of this same letter) applied “in
anticipation of the fulfilment of the state d demand and the eventual
relocation being considered in parallel with the guidance awaited as
mentioned.”

[12] The HOD advised the Centre as per his letter dated 13 December
2018 that he was aware of the former MEC’s decision regarding
the appeals, but that there were serious concerns regarding the
regularity of the process followed by the then MEC . T he
department was therefore considering to take that decision on
review to the high court. The Centre responded in writing on 27
December 2018, notifying the MEC that, should it not have
received a court date for the review of the former MEC’s decision
by 9 January 2019, it would approach the High Court to compel
her to do so. To this letter and a follow -up letter of 22 January
2019, no response was forthcoming from the Department. The
Centre filed its application on 13 February 2019 and the
Department filed its opposition on 8 March 2019.

7

[13] On 14 March 2019 I gave an order postponing this application to
20 May 2019 for argument. I gave certain directions as to time
limits for the filing of the Department’s answering affidavit to the
application and the review counter -application, the record of
decision and further d ocuments. The counter -application for
review was filed on 1 April 2019.

The Parties’ submissions

[14] The Department contended in its review application that in legality
reviews, the approach is that the court may employ the exercise
of a broader discretion than that traditionally applied to section 7
of PAJA 1. When assessing the delay under the principle of
legality, no explicit condonation application is required 2. The
Department knew of the existence of the appeal on 27 November
2018 after it received the Centre’s letter. The department’s
response of 13 December 2018 to the Centre was the only
document received by the Centre from the depart ment pertinent
to the internal appeal and which advised the Centre of the stage
of investigations relative to the envisaged review. In relation to the
department’s ability to review its own decision, the clock should
start ticking from 27 November 2018 because:
“10.1 Instructions were given by the Department to the State Attorney to
prepare the review in mid-January 2019;
10.2 On 30 January 2019 the office of the Premier confirmed that the
Department was entitled to approach this court on review;
10.3 In early February 2019 the State Attorney requested additional
documents from the Department to prepare the review;

1 Buffalo City Metropolitan Municipality V Asla Construction (Pty) Ltd, 2019(4) SA 331 (CC), para 50
2 Buffalo, supra, para 51
8

10.4 On 14 February 2019, the main application was launched; and
10.5 The counter-application for review was filed on 1 April 2019”

[15] The Centre contended that the delay was unreasonable and
undue for the following reasons:
1. It wa s improbable that the HOD only became aware of the
outcome of the appeals on 27 November 2018 and , as at
that date , he was aware that the Centre had acquired a
substantial investor, whose investment was conditional on
the relocation of the licence;

2. Despite the HOD’s advices of 13 December 2018, relative to
the consideration of a review application, such consideration
should not be allowed to take months on end;

3. On 27 December 2018 , the Centre advised the HOD of its
rights being affected and the risk to its investments because
of the significant delay that had taken place , and requested
timelines within which the review application would be filed;

4. The department failed to give a satisfactory explanation for
the entire period of the delay. The mandamus application
was brought as a result of such unsatisfactory explanation.

[16] The explanation given by the department is that prior to the
receipt of the Centre’s letter of 27 November 2018, neither the
existence of the appeal nor its apparent success was known to it.
The HOD deposed in the founding a ffidavit3 that he advised the

3 Para27
9

current MEC that, despite the contents of the former MEC’s
letters of 8 May 2018 that the latter directed him, as the head of
the department, to enter the name of the Centre into the register
for private health facilities, he had received no such direction from
the said ME C. These events having been brought to the
knowledge of the department, the HOD wrote a letter to the
applicant on 13 December 2018 expressing serious concerns
regarding the irregularities of the process followed by the former
MEC and advising the Centre t hat the department was
considering reviewing the appeal decision. 4 It was apparent to
him that certain material requirements of the regulations as
regards an appeal, were not followed by the former MEC,
rendering the decision he made contrary to the principle of legality
and thus reviewable.5

Whether the review was launched within a reasonable time

[17] The question that arises is whether the Department delayed this
matter for the period starting 8 May 2018 until 27 November
2018. Secondly, whether there was a delay for the pe riod
commencing 27 November 2018 until 1 April 2019 when the
review application was filed. The answers to both questions, in
my view, should be answered in the negative. In Buffalo City
Municipality vs. Asla Construction (Pty) L td6 , Theron J,
writing for the majority, stated the following7

4 Para 28
5 Para 29
6 2019 (4) SA 331 (CC)
7 Paragraphs 51 to 53
10

“[51] The second difference between PAJA and legality review for the
purposes of delay is that when assessing the delay under the principle of
legality no explicit condonation application is required. A court can simply
consider the delay, and then apply the two -step Khumalo test to ascertain
whether the delay is undue and, if so, whether it should be overlooked.

[52] The second principle relating to delay under legality is that the first step
in the Khumalo test, the reasonableness of the delay, must be assessed on,
among others, the explanation offered for the delay. Where the delay can be
explained and justified, then it is reasonable, and the merits of the rev iew
can be considered. If there is an explanation for the delay, the explanation
must cover the entirety of the delay. But, as was held in Gijima, where there
is no explanation for the delay, the delay will necessarily be unreasonable.

[53] Even if the u nreasonableness of the delay has been established, it
cannot be 'evaluated in a vacuum' and the next leg of the test is whether the
delay ought to be overlooked. This is the third principle applicable to
assessing delay under legality. Courts have the powe r in a legality review to
refuse an application where there is an undue delay in initiating proceedings
or discretion to overlook the delay. There must however be a basis for a
court to exercise its discretion to overlook the delay. That basis must be
gleaned from the facts made available or objectively available factors. ” (My
emphasis)

[18] The department correctly pointed out that, despite the Centre’s
apparent success on appeal on 8 M ay 2018, it waited more than
six months to make any enquiries with the department as to how
it ought to proceed as indicated in its request contained in the
letter of 27 November 2018. In this letter it sought for the first time
approval from the departmen t to relocate its intended operations
to another site. Any prejudice it is said to have suffered over the
period from 27 November 2018 until the review proceedings were
11

launched, was of its own making. It was not entitled to the
registration of the licence s as a new s ite approval was first
required and any planning and procurement in the intervening
period was premature.

[19] It is evident from the submissions made on behalf of the Centre
that the mandamus application was brought “as a direct result of the
inaction of the HOD and MEC and their discourteous refusal to respond to
correspondence”8. The correspondence not r esponded to are the
letters of 27 December 2018 and 22 January 2019. It is also
evident that the Centre was not satisfied with the department’s
explanation of the steps it took since December 2018 surrounding
the review application. I am satisfied with the explanation given
for the delay and that it covers the entirety of the delay. The delay
is justified and in the circumstances reasonable.

Whether the former MEC’s conduct was consistent with the applicable
regulation and thus the rule of law

[20] It is imperative to analyse the former MEC’s response upon which
the Centre’s application is based in order to have an ide a of the
essence of the dispute 9.The response is contained in two letters
which read as follows:

“Dear Me Colbert
Your letter dated 03 May 2018 has been referred to the Head of the
Department, Dr D Motau. Having considered all available information you
provided to me and acting in terms of regulation 17(5), I have come to

8 Applicant’s heads of argument on page 17 para 7.6
9 Annexures GC3 and GC4 to the founding affidavit
12

decision to uphold your application for regis tration of a private health a
successful.

I directed the Head of the Department (HOD) to enter the name of the
registered for the private health facilities.

Regards.”

“Dear Mrs. G.S Colbert
You letter 2018/05/03 has been referred having considere d all information
you provided to me and acting in terms of regulation 17(5 ). I have come to
decision to uphold your application for registration of a private health
successful.

I direct the Head of the Department (HOD) to enter the name of the
registered for private health facilities.

Regards,”

[21] It is obvious that the former MEC , in his letters of 8 May 2018,
referred to the Centre’s letter dated 3 May 2018 and not to the
appeals apparently submitted on 26 April 201810. In its opposing/
replying affidavit, the Centre, in addressing the aspect of the
absence of the record of decision, stated that it was not in
possession of the record that served before the former MEC.
What it did was to place the application by means of a request
before the former MEC in terms of the rights conferred u pon it
and “By all accounts, it would seem as if this is what served before the
former MEC.”11


10 Para 15.7 of the Founding Affidavit
11 Paragraph 9.3 of the opposing/replying affidavit
13

[22] Regulation 1712 deals with appeals and reads as follows:
“Appeal
(1) An applicant may lodge in writing with the MEC against any decision
made by the Head of Department and must include the grounds of the
appeal. An appeal must be lodged within 14 working days of being
notified of the decision of the Head of Department.
(2) The MEC must, within 5 working days of receipt of a copy of an appeal,
submit a copy thereof to the Head of Department and must request the
Head of Department to respond to the appeal.
(3) The Head of Department must within 5 days of receipt of a copy of an
appeal, submit a response thereto to the MEC.
(4) The MEC may appoint a committee to advise him/her on the appeal.
(5) The MEC may uphold, partially uphold or refuse an appeal and may, in
the event that the appeal is upheld, replace the decision of the Head of
Department with any decision to grant the application which the Head
of Department could have taken.
(6) The MEC must communicate the decision on the appeal in writing to
the appellant and, if the appeal is refused, give the reasons therefore.
(7) If the MEC upholds an appeal, this fact must be communicated in
writing to the Head of Department who must make the necessary en try
in the Register of Private Health Establishment.
(8) If the MEC has refused an appeal, he or she must advise the applicant
of his or her right to take the matter on review in the High Court.

[23] It is evident from the MEC’s response that he reacted to the
Centre’s letter of 03 May 2018 by the employment of the
provisions of regulation 17(5), having allegedly considered all
available information provided to him by the Centre. Nowhere in
the said letter was it stated that the former MEC upheld the
appeal and that he replaced the decision of the HOD , with any
decision to grant the application which the latter could have taken.

12 Private Health Establishment Regulation, 2014
14

The letter purports to uphold the Centre’s application for the
registration of a Private Health establishment. If it is accepted that
the only “application” and “request” is the one dated 03 May 2018 to
which a response was received on 08 M ay 2018, it would follow
that there was non-compliance with regulation 17(2) in that a copy
of the appeal was never submitted by the for mer MEC to the
HOD, requesting the latter’s response thereto. Furthermore, it is
doubtful, in the light of the Centre’s response as embodied in it s
replying affidavit, that an appeal, which is inclusive of the grounds
thereof, was lodged in terms of regulation 17(1). This would then
justify the Department’s submission that the HOD was not
afforded the opportunity to act in terms of regulation 17(3) to
submit a response within 5 days to the MEC.

[24] A striking feature of the contents of the first letter is that it is
structured in a disjunctive manner. The one moment, the letter of
3 May 2018 (the contents of which are unknown) were referred to
the HOD , in the absence of whose reply he wa s give n certain
directions to follow . Like a bolt from the bl ue, the former MEC
arrived at a decision to uphold the registration application solely
on the information provided by the Centre , with no indication
whatsoever that the HOD’s response was sought and obtained.
Neither does it indicate which part of the appe al did it uphold or
partially uphold in terms of Regulation 17(5). The period starting
on 3 May 2018 until 8 May 2018 militates against a proper
adjudication of the appeal by the former MEC as outlined in the
set periods mentioned in Regulation 17. If the appeal was
received on 3 May 2018, it is doubtful as to whether, taking into
account the provisions of Regulation 17(2) and (3), the appeal
15

could have been finalised by the eight h of that month, five days
later. A proper perusal and consideration of the former MEC’s
letter, indicates that whatever decision was taken, it was done so
in haste.


[25] The second letter is crisp and , needless to say, is very confusing
and gives the impression of having been drafted in haste and
signed without consideratio n of its contents as evidenced by the
incomplete, illogical and inconsistent sentences . Both letters, in
my view, disprove the existence of a written appeal having been
lodged with the former MEC. No evidence of a written appeal was
presented by the Centre. This is bolstered by the Centre’s failure
to rise to the Department’s challenge to produce the letter of 26
April 2018 embodying its appeal. The Department denied in its
opposition the existence of the letter of 26 April 2018 and called
upon the Centre to provide copies of its alleged appeal as
contained therein. The Centre failed to do so in its reply or in any
other form . The Centre contented itself that the department , in
requesting copies of the letter alle ged to contain the appeal,
wanted the Centre to assist it with proving a case for review which
was improper and somewhat perverse. 13 In the absence of such
proof, it can , in my view, be safely accepted that no appeal was
lodged in terms of the applicable regulation.

The Review Record


13 Paragraph 15 of the Centre’s replying affidavit
16

[26] The Centre contended that the onus wa s on the Department to
provide the court with its record of decision, the reasons for the
decision and all the relevant documents to enable the court to
review the decision of the former MEC. The Department failed to
do so and alleged that, despite a dilig ent search, it was unable to
find a proper record of the appeal submitted to the former MEC.
The evidence of the irregularity rested solely on the HOD’s denial
that he was asked by the former MEC for a report in terms of
Regulation 17 or advised of the out come and directed to register
the Centre accordingly.

[27] The Centre maintained that the court was kept in the dark and the
HOD, unlike the circumstances in MEC for Health, Eastern Cape
and Another v Kirland Investments (Pty) Ltd 14, attempts to
have this court review and set aside the decision of the former
MEC when the Department failed to procure the e vidence of the
former MEC. The failure to do so and to advise the court
accordingly, can only be seen as an at tempt to overturn his
decision as the Department disagreed with the outcome.

[28] The Department conten ded that the provision of a complete
record in review proceedings is not a prerequisite and even where
there is no record kept, the review was permitted to proceed 15.
The record of the decision is primarily for the benefit of the
applicant in a review16. It would therefore not be in the interests of
the applicant to conceal the documents relative to the former
MEC’s decision. The Centre did not answer paragraph 11 of the

14 2014 (3) Sa 481 (CC)
15 Secretary for the Interior v Scholtz 1971 (1) SA 633 (C) at 637 A-D
16 Helen Suzman Foundation v Judicial Services Commission 2018 (4)
17

Department’s founding/answering affidavit which stated that the
review record contained a ll the available records as envisaged in
Rule 53(1) (b).



Just and equitable Remedy

[29] The Department contended that it would not be just and equitable
for the court to order the review and setting aside of the former
MEC’s decision on appeal without affording the applicant an
opportunity to submit a fresh appeal for consideration as failure to
do so would be tantamo unt to refusing the applicant the right to
an appeal. The Centre contended that such a step would divest it
of the rights i t acquired having followed due process. It had
reasonable fears that any fresh appeal would be a mere effort of
ticking a procedural box and presenting the Centre with a
negative outcome and further delay in realising the health care
facility. The present MEC could easily have left the position as is,
but she does not want the hospital to be built and has all but out
rightly said so 17. It was submitted that courts have in the past
declared a decision unlawful, but elected not to set it aside so as
to avoid divesting a party of rights it accrued18.

[30] The Department contended that the present MEC had not had
sight of the Ce ntre’s grounds of appeal nor had she had the
opportunity of receiving a response from the HOD as to the

17 Paras 10.2 and 10.3: Applicant’s heads of argument
18 Buffalo, supra, para 105; Oudekraal Estates (Pty)m Ltd vs. City of Cape Town 2004 (6) SA 222 SCA
18

grounds of the appeal relied upon. The current MEC never said
that she did not want the health facility to be built. S he would not
be in a position to make such a determination without further
information being presented to her by both the Centre and the
HOD as to any deficiencies in the initial determination. The
following quotation from MEC for Health, Eastern Cape and
Another19 is appropriate:
“[60] Under our Constitution the courts d o not have the power to make valid
administrative conduct that is unconstitutional. What may be done by the
courts is to regulate the consequences of their declaration of invalidity. This
means that in deciding a constitutional matter, a court adopts a t wo-stage
approach where an enquiry involves the determination of constitutional
validity. During the first stage, once a court finds that the impugned conduct
is inconsistent with the Constitution it must make a declaration of invalidity.
This does not i nvolve the question whether the order is just and equitable.
The latter enquiry belongs to the second stage.
[61] Once a declaration of invalidity is made, the court may proceed to the
second stage. At this stage the court considers the effects of the de claration
of invalidity on parties or persons to whom the order applies. The interests
of those parties are carefully examined for the purposes of making an order
that is just and equitable in the circumstance of each case. It is only at the
second stage that a court enjoys a discretionary choice. However, that
choice does not include the reversal of what was done during the first stage
at which there is no discretion but an obligation to make a declaration of
invalidity. The two stages ought not to be conflated.”
Conclusion
[31] In the present circumstances it is clear that t he former MEC’s
decision was not only procedurally flawed but was irrational as it

19 supra
19

was made devoid of any reliance on facts or considerations as
referred to in the regulations. The exercise of public power is
required to be consistent with the rule of law and the constitution
requires administrators to act lawfully, reasonably and
procedurally fairly. The refore, the former MEC’s decision stands
to be set aside as invalid and of no force and effect. The Centre’s
assertion that it had acquired a substantial investor following the
former MEC’s decision does not establish prejudice at all. The
investment was conditional on the successful relocation of the
licence. Beyond the declaration of invalidity there is nothing to
preserve because nothing tangible was done by the Centre
following the impugned appeal20. The application for a mandamus
order should therefore fail and the application for the review
should succeed.
Costs
[32] It is trite that the successful party is entitled to an award to costs.
However, the department, as the successful party does not seek
such costs and prayed that there should be no order as to costs.

[33] I therefore make the following order:

Order
1. The applicants’ application for mandatory relief is dismissed.
2. To the extent necessary, condonation is granted to the
respondent/applicants’ to file the counter application/review;
3. The decision of the former MEC of the Free State Provincial
Government: Department of Health, BM Khompela dated 8 May

20 MEC,supra, para 58
20

2018 to uphold the applicant/respondent’s appeal and to permit it
to register a private health establishment as applied for, is hereby
reviewed and set aside;


4. The applicant/respondent is permitted, should it so wish, to file
with the second respondent/applicant a fresh appeal within (5
days) of this court’s order, which appeal the second
respondent/applicant will consider in accordance with the
provision of Regulation s 17 of the Private Health Establ ishment
Regulations, 2014, read with the 2017 amendments thereto.
5. There is no order as to costs in respect of both the main and the
counter-applications.

_____________
MHLAMBI, J


I concur,


_______________
MOLITSOANE, J





Counsel for the Applicant: Adv. S Grobler SC
Adv. J.F Mitchley
Instructed by: Peyper Attorneys
Dynarc House
Bloemfontein


21


Counsel for Respondents: Adv. NA Cassim SC
Adv. S Freese
Instructed by: State Attorney
11th Floor, Fedsure Building
49 Charlotte Maxeke Street
Bloemfontein