About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2018
>>
[2018] ZAECMHC 63
|
|
Makhambi v MEC For Health, Eastern Cape and Another (3262/2018) [2018] ZAECMHC 63 (20 November 2018)
IN THE HIGH
COURT OF SOUTH AFRICA
(EASTERN CAPE
LOCAL DIVISION, MTHATHA)
Case No. 3262/2018
[Reportable/of
interest]
In
the matter between:
NOLUSIZO
MAKHAMBI
Applicant
And
MEC
FOR HEALTH, EASTERN
CAPE
1
st
Respondent
THE
CHIEF EXECUTIVE OFFICER,
BUTTERWORTH
HOSPITAL
2
nd
Respondent
JUDGMENT
MBENENGE
JP
[1]
This application purports to be in terms of section 78(2) read with
section 82
of the
Promotion of Access to Information Act 2 of 2000
[1]
as read with “
the
provisions”
[2]
of the
Promotion of Administrative Justice Act 3 of 2000
.
[3]
The applicant seeks, in the main, an order declaring unlawful and in
conflict with the provisions of the PAIA and the PAJA the
respondents’ refusal and/or failure to consider and take a
decision on the applicant’s request for access to medical
reports and records relating to her admission at the Butterworth
Hospital for treatment of bodily injuries she sustained in a motor
vehicle accident that took place on 29 March 2018.
[2]
Section 78
(2) gives a person who made a request for access to a
record of a public body, to no avail, and who is aggrieved by the
refusal
and/or failure to allow such access the right to approach a
court for appropriate relief. In terms of
section 82
the court
hearing the application may grant any order that is just and
equitable, including orders confirming, amending or setting
aside the
decision which is the subject of the application concerned.
[3]
Cited as the first and second respondents in this application are the
Member of the Executive Council
for Health in the Eastern Cape
Provincial Government and the Chief Executive Officer of the
Butterworth Hospital, respectively.
The first respondent is cited in
his official capacity as the political head of the Eastern Cape
Department of Health and the second
respondent as the functionary
upon whom it is incumbent to decide “
whether requests for
access to information
[held at the]
Butterworth Hospital, in
terms of
[the]
PAIA, should be granted or refused.
”
[4]
The applicant alleges that she sustained bodily injuries for which
she was admitted for two days at
the Butterworth Hospital for
treatment and care. Upon her discharge, in her quest to claim from
the Road Accident Fund, she instructed
her attorneys to lodge a
request for accessing the relevant duly completed RAF1 form and her
medical records pertaining to the
injuries she sustained. This claim
is said to have been lodged with “
offices of the second
respondent
.”
[5]
The applicant further alleges that her quest to access the records
that are the subject of this application
attracted no response from
the second respondent. As a result thereof, she mandated her attorney
of record, in terms of
section 75
of the PAIA read with clause 11 of
the respondents’ department’s manual, to lodge an appeal
with the Superintendent-General
of the Health Department. The appeal
process, too, yielded naught, hence the current application.
[6]
Both the initial request for access and the resulting internal appeal
were addressed to:
“
The
Superintendent-General
Department of
Health, Eastern Cape
Private Bag
X0038
Bisho
5605”.
[7]
The relevant registered slip annexed to the founding papers as proof
that the letters reached the addressee
refers to:
“
The Deputy
Information Officer
Nqamakwe
Police Station
PO Box 13
Nqamakwe
4990”.
[8]
The matter served before Malusi J on 16 October 2018. On that
occasion it was removed from the roll,
and the applicant granted
leave to deliver a supplementary affidavit. The order sheds no light
regarding why it was necessary to
supplement the founding papers, but
the reason therefor is not far to seek. More about this later.
[9]
Without any supplementary affidavit having been delivered, the
application was re-enrolled for hearing
and served before me on 13
November 2018.
[4]
Counsel who
had appeared before Malusi J still held instructions to move the
application, and she did, submitting that “
the
papers
[were]
in
order.”
Nothing
was said about the concerns that Malusi J had expressed, and that had
resulted in the matter being removed from the roll.
For counsel it
seemed business as usual.
[10] I
drew the provisions of
section 14
of the PAIA to the attention of
counsel, requiring to know whether the allegations foreshadowed in
that section had been made in
the founding affidavit and a
nexus
established that the request for access to records and the resulting
appeal had been duly and properly served. Counsel disavowed
any
reliance on the PAIA, this, despite the allegations made in the
founding affidavit that the application had been predicated
on the
PAIA. When pointed to the relevant paragraphs in the founding
affidavit wherein pertinent reference is made to the PAIA,
counsel
pressed no further with the contention.
[11]
There were no less than 66 similar applications enrolled for hearing
before me. Only in few of those cases was
faint reference made to
some departmental manual; in the majority of the applications there
was no reference to the manual contemplated
in
section 14.
Applications where reference had been made to a manual were removed
from the roll with each one of the applicants therein granted
leave
to file a supplementary affidavit wherein the allegations
foreshadowed in
section 14
should be made.
[5]
The applicants in the remaining applications were granted leave to
withdraw the same with no order of costs.
[12] I
was concerned that a culture had developed in this court for
practitioners to remove a matter from the roll of
a judge who had
raised a concern and thereafter reinstate the matter so as to serve
before another judge, even without any supplementary
papers having
been filed, in the hope that the judge hearing the matter on the
subsequent occasion might not pick up the shortcoming
and grant the
order sought without ado. This conduct is despicable and disregards
the pivotal duty of legal practitioners towards
the court, which is
aptly stated in
Incorporated
Law Society v Bevan
[6]
as follows:
“
Now
practitioners, in the conduct of cases, play a very important part in
the administration of justice… The practitioner
shall say or
do nothing,
shall
conceal nothing or state nothing, with the object of deceiving the
court
,
shall quote no statute which he knows has been repealed, and shall
put forward no fact which he knows to be untrue, shall refer
to no
case which he knows has been overruled. If he were allowed to do any
of these things the whole system would be discredited.
Therefore any
practitioner who deliberately places before the court; or relies
upon, a contention or a statement which he knows
to be false is in my
opinion not fit to remain a member of the profession”
[7]
(emphasis added).
[13]
This application, purporting as it does to be in terms of the PAIA,
does not pass muster.
Section 14
of the PAIA, in so far as relevant
hereto, reads:
“
(1)
Within six months after the commencement of this section or the
coming into existence of a public body, the information officer
of
the public body concerned must compile in at least three official
languages a manual containing
(a)
a description of its structure and functions;
(b)
the postal and street address, phone and fax number and, if
available, electronic mail address of the information officer of
the
body and of every deputy information officer of the body designated
in terms of
section 17
(1);
(c)
a description of the guide referred to in
section 10
, if available,
and how to obtain access to it;
(d)
sufficient detail to facilitate a request for access to a record of
the body, a description of the subjects on which the
body holds
records and the categories of records held on each subject;
(e)
the latest notice, in terms of
section 15
(2), if any, regarding the
categories of records of the body which are available without a
person having to request access in terms
of this Act;
(f)
a description of the services available to members of the public from
the body and how to gain access to those services;
(g)
a description of any arrangement or provision for a person (other
than a public body referred to in paragraph (a) or (b)
(i) of the
definition of 'public body' in
section 1)
by consultation, making
representations or otherwise, to participate in or influence
(i)
the formulation of policy; or
(ii)
the exercise of powers or performance of duties, by the body;
(h)
a description of all remedies available in respect of an act or a
failure to act by the body…”
[14]
The section must be read together with
section 16
, which provides:
“
The
Director-General of the national department responsible for
government communications and information services must at that
department's cost ensure the publication of the postal and street
address, phone and fax number and, if available, electronic mail
address of the information officer of every public body in every
telephone directory issued for general use by the public as are
prescribed.”
[15]
Upon a proper reading of these sections it is the manual of a public
body contemplated in
section 14
that sheds light regarding,
inter
alia
,
the address to which a request and, where applicable, an appeal
should be sent; the functionary to whom the request should be
made
and a description of remedies available to an aggrieved requester
before court proceedings can be instituted. All these facts
gleaned
from the manual must be alleged in the affidavit filed in support of
an application challenging the refusal and/or failure
to consider and
make a decision on a request for access to information. Needless to
say the address used to request the information
from the information
officer must be that referred to in the manual. It would also perfect
the cause of action for the applicant
to annex the relevant pages of
the manual. In this way, it would not be left to a judge to trawl the
manual or telephone directory
to verify the correctness of the
address and the addressee.
[8]
It
is not hard to envisage a situation where a public body has not
complied with
section 14
and has thus not compiled a manual. In that
event, it should be available to the aggrieved person to seek a
mandamus
compelling
the public body concerned to compile the manual.
[16] In
the instant matter the request was, on the applicant’s showing,
addressed to the Superintendent-General
of the Department of Health,
yet in terms of
section 1
of the PAIA, “
information officer
”
in the case of any public body (other than those mentioned in
paragraphs (a) and (b) of the definition of “
information
officer
”) is the Chief Executive Officer, or equivalent
officer, of that public body or the person who is acting as such.
What further
compounds matters in this case is that the registered
letter founding the request was sent to the Deputy Information
Officer of
Nqamakwe Police Station, who has nothing to do whatsoever
with the Health Department.
[17]
These anomalies suggest that counsel did not bother to read the
papers before submitting that they were “
in
order
”.
The practitioner who drafted the papers either resorted to cutting
and pasting or was utterly remiss as to the content
of the papers
that were being drawn. At this juncture, I am reminded of the remarks
made by Wallis J (as he then was) in
Sibiya
v Director General: Home Affairs & Others and 55 related
cases
[9]
,
albeit in the context of charges levied by practitioners not
reflective of the work actually done. He said:
“
I
have considerable reservations whether any such consultation or
process of taking instructions or drafting actually occurs beyond
perhaps a clerk recording the name and some minor routine personal
particulars about the applicant in order to feed them into the
computer program and print off the application papers.”
[10]
[18] In
hoc casu
the applicant spurned the opportunity she had been
afforded to supplement her founding papers so as to disclose a cause
of action.
The application therefore falls to be dismissed.
[19] The
way in which this application was handled demonstrates lack of
professionalism on the part of the applicant’s
legal
representatives. They are not entitled to recover any fees from the
applicant for handling this case.
[11]
Any fees as may have been debited by the legal representatives from
the applicant must be refunded.
[20] I
mentioned earlier on that the State Attorney did deliver a notice to
oppose the application, hence it was enrolled
as an uncontested
opposed application. Had they not merely delivered the notice, but
actually participated in the proceedings in
accordance with their
duty to assist the court to administer justice promptly and reliably,
the court would, in all probability,
have made a cost order against
the applicant
[21] In
the result,
the application is dismissed.
S M MBENENGE
JUDGE PRESIDENT
OF THE HIGH COURT
Counsel
for the applicant
: Ms V Nqabeni
Instructed
by
: AR Ngqongwa Inc.
Butterworth
c/o
Mgcotyelwa Krewu Inc.
Mthatha
For
the respondents
: No appearance
Respondents’
attorneys of record :
The State
Attorney
Mthatha
Date
heard
: 13 November 2018
Date
Judgment delivered
: 20 November 2018
[1]
The PAIA
[2]
The sections relied on have not
been identified by the applicant in her founding affidavit
[3]
The PAJA
[4]
It was enrolled as an
uncontested opposed application, with the State Attorney, Mthatha
having delivered a notice to oppose and
not pursued such opposition
[5]
There were 5 out of the 67
applications
[6]
1908 TS 724
at 731-2
[7]
Also see S M Mbenenge “
A
Dead Horse Need Not Be Fogged: The Duty Not To Pursue Unmeritorious
Causes
” SAJEI
Journal, Vol. 1, Issue 1, 2018 p98; also see OL Rogers, “
To
Give and To Gain: Judicial Involvement in Advocacy Training
”,
ibid
,
p31
,
where
the following is stated:
“
Competent
counsel can be expected to make responsible submissions about the
evidence and to direct attention to the relevant legal
principles
and authority, whether for or against their case. They will use
court time efficiently by focusing on the important
issues and by
ensuring that evidence unfolds coherently. All of this helps the
bench to administer justice promptly and reliably.”
[8]
Cf
Port Nolloth
Municipalicy v Xhalisa and Others
1991 (3) SA 98
(CPD) at 111B-I, which makes it incumbent on an
applicant in motion proceedings to not merely annex a document to
the founding
affidavit without specifically directing the
respondent(s) to the relevant parts of the annexure.
[9]
2009 (5) SA 145 (KZP)
[10]
Cited with approval in
Tagese
Hilafo Tekalign v Minister of Home Affairs & Others
(unreported judgment by Goosen J, Eastern Cape Local Division, Port
Elizabeth, under case nos. 2774/2015; 410/2018 and 578/2018
delivered on 22 May 2018).
[11]
Enslin v Nhlapho
[2008] ZASCA 75
;
2008 (5) SA 146
(SCA)