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[2019] ZAECMHC 36
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Mukhambi v MEC for Health, Eastern Cape Province and Another (1045/2019) [2019] ZAECMHC 36 (2 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO. 1045/2019
Heard
on : 18 June 2019
Date
delivered: 02 July 2019
In
the matter between:
NOLUSIZO
MAKHAMBI
Applicant
And
MEC
FOR HEALTH,
EASTERN
CAPE
PROVINCE
First Respondent
THE
CHIEF EXECUTIVE OFFICER
BUTTERWORTH
HOSPITAL
Second
Respondent
JUDGMENT
MAJIKI
J:
[1]
In these two matters, 1045 and 1046 of 2019 the applicants apply for
similar remedies.
The issues that arise are also similar.
I will refer to the matter in 1046/2019, the result therein will
apply to 1045/2019
as well. The applicant applied for a relief
following the alleged failure of the second respondent to furnish the
documents
requested by the applicant. The applicant applies to
this court in terms of Promotion of Administration of Justice Act
(PAJA)
for review and setting aside the second respondent’s
failure to consider and decide the applicant’s request for
information.
She particularly relies on section 6(2)(g) of PAJA
for instituting proceedings for failure of the second respondent to
make a decision.
Further, she referred to various sections in
the Constitution Act No 108 of 1996 alleging that her constitutional
rights were infringed
by the respondents’ conduct. The
respondents filed notice to oppose but no answering affidavit was
filed.
Background
[2]
On 9 December 2018 the applicant was involved in a motor vehicle
accident. She was
treated at Butterworth hospital for injuries
sustained therein. A request for completion of medical section
in the RAF 1
Form was made to the hospital for purposes of lodging
her MVA claim. The request was delivered by hand and the
hospital stamp
dated 14 December 2018 was affixed on the copy of the
letter at the hospital. There is also a signature next to it
which
I presumed it is that of the recipient of the letter.
There was no response to the said request.
[3]
On 4 February 2019, the applicant wrote a letter headed “Statutory
demand” against
the member of executive council and the second
respondent.
The
demand was framed as follows:
“
client’s
request be considered and a decision be taken and same be
communicated to us, within thirty (30) days of receipt
hereof, to
avoid any further delay and litigation on the matter.”
This
does not reflect a model demand, but that is not so much of an issue
in this matter. On 22 March 2019 the present application
was
filed.
[4]
The applicant says the relief she seeks is premised on sections 5(2)
and 6(2) (g).
Section
5(2) provides:
“
The
administrator to whom the request is made must, within ninety (90)
days after receiving the request, give that person adequate
reasons
in writing for the administrative action.”
Section
5(1) provides that the reasons are for the administrative action
which materially and adversely affected the rights of the
person who
requests the reasons.
[5]
During the hearing I engaged with Mr Mfeya in relation to internal
processes that
ought to have taken place in this matter, before the
application would have been launched. Mr Mfeya submitted that
there
are no specified internal remedies that the applicant ought to
have pursued under PAJA. Her letter of demand would serve any
internal process which is envisaged she ought to have pursued before
coming to court. In paragraph 31 of her founding affidavit
under the subheading, CONDONATION the applicant states:
“
I may just mention that
my quest for condonation and exemption as prayed in instant
proceedings is sought only, to the extent
that it may be shown,
notwithstanding the respondents’ failure to pronounce on my
application, I was obliged to adhere to
relevant time frames and
pursue internal remedies.”
In
the next paragraph she goes on to state that the internal process was
obliterated and rendered more ineffective by the respondents’
own inaction and special circumstances in the case, which she says
includes that the respondents adopted a passive attitude to
her
initial application and letters of demand.
[6]
The applicant has not stated why reasons for the administrative
action had to be furnished
in less than the ninety (90) days
prescribed in section 5(2). Her initial request was made on 14
December 2018, five days
after the accident. On 4 February 2019
she demanded that her request be considered and that the decision
taken be communicated
within thirty (30) days of the receipt of the
letter. It is not clear whether she considered the initial
failure to respond
to the request for information or the failure to
meet the subsequent demand to take a decision and communicate it, as
constituting
the actual administrative action of failure to take a
decision. However, logic says such failure could only arise
after the
thirty (30) day period referred to the demand, calling for
a decision to be made. The actual administrator from whom the
reasons would be sought being the Chief Executive Officer of the
hospital.
[7]
The application was launched on 22 March 2019 after the thirty (30)
days referred to in
the letter demanding that the decision be made.
The demand to the MEC for health was despatched on 9 February 2019,
the ones
to the Chief Executive Officer, Butterworth hospital and
Superintendent General, department of health were sent on 6 February
2019.
The thirty (30) days expired on 6 and 9 March 2019
respectively. From 6 and 9 March 2019, it is 15 and 18 days to
22 March
2019, when the application was launched.
[8]
In case number 1045/2019, the initial request was received by the
Chief Executive Officer,
Butterworth hospital on 16 April 2018.
Statutory demand framed as in 1046/2019 was received by the Chief
Executive Officer
on 4 February 2019. The ones to the MEC
for Health and Superintendent General, department of Health were sent
by registered
post on what seems to be 09 February 2019. The
application was launched on 22 March 2019, 13 and 18 after dispatch
of the
letters respectively.
[9]
If the averments in paragraph 32 of her founding affidavit were
anything to go by, the respondent’s
passiveness and inaction is
the maximum of eighteen (18) day period, in both matters, from
dispatch of letters of demand. This
is the period during which
the second respondent failed to respond.
It
must be taken into account that the dispatch dates are not those of
receipt of the letters. It is not known as to when
the letters
were actually received by the second respondent. Further, the
applicants still had more than two years in both
matters within which
to lodge the claim with the RAF, from the date of the launching of
the applications. The date of accidents
are 9 December 2018 and
29 March 2018, respectively.
[10]
In my view, the applicant has not established any basis for not
allowing the respondents the ninety
(90) day period prescribed in
section 5(2) of PAJA. The applications therefore were launched
prematurely.
[11]
The applications were not opposed, therefore there would be no reason
for entitlement to costs by any
of the respondents.
In
the result,
1.
Applications in case
number 1045/2019 and 1046/2019 are hereby dismissed.
B
Majiki
Judge
of the High Court
Applicant’s
Counsel
: Mr Mfeya
Instructed
by
: Messrs A R NGQONWA INC.
BUTTERWORTH
c/o MGCOTYELWA KREWU INC.
No. 19 Corner of Park Road
and Blakeway Street
MTHATHA