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[2017] ZAFSHC 23
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De Vries and Associates v MEC: Free State Department of Health (3484/2016, 3516/2016) [2017] ZAFSHC 23 (2 March 2017)
.
d
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE
D
I
VISION,
BLOEMFONTE
I
N
Reportable:
NO
Of
interest to other judges: YES
Circulate
to Magistrates: NO
Case
number: 3484/2016
3516/2016
In
the matter between:
DE
VRI
ES AND
ASSOCI
ATES
Applicant
and
MEG:
FREE STATE
DEPARTMENT OF
HEALTH
Respondent
JUDGMENT
BY:
DAFFUE, J
HEARD
ON:
24 NOVEMBER 2016
DEL
I
VERED
ON
:
2 MARCH 2017
I
I
NTRODUCTION
[1]
The central theme of the litigation between an association of
radiologists that provide professional medical service to public
and
private patients at the Universitas Academic and National Hospitals
in Bloemfontein and the Free
State
Department of Health is the alleged harassment of or
interference with the practice of the radiologists
by officials of
the Department. The focus throughout the proceedings before me was
the alleged illegal action at the Universitas
Academic Hospital
(herein later referred to as "the Universitas Hospital") in
terms whereof the Department confiscated
the radiologists' equipment
and endeavoured to eject them and staff members from the hospital
premises where they have been practising
for many years. A certain Dr
Basele Ali Benganga, assisted by security personnel, played a leading
role during the altercations
that took place in July 2016 which led
to the present proceedings.
II
THE
PARTI
E
S
[2]
Applicant in the two applications mentioned
infra
is De
Vries and Associates, an association of radiologists that provides
professional medical service to patients at the Universitas
and
National Hospitals in Bloemfontein. Until recently it also provided
similar services at the Pelonomi Hospital. Applicant is
also the
respondent in a counter-application filed by the MEC: Free State
Department of Health, but for purposes of clarity, I
shall refer
during the course of this judgment to De Vries and Associates as the
applicant. Adv C Ploos van Amstel SC appeared
before me with Adv J Y
Claasen SC on behalf of the applicant.
[3]
The respondent in the two applications is the MEC: Free State
Department of Health who also filed mentioned supra. I
shall throughout this judgment refer to respondent as the Department
and if I need to refer to specific officials in its employ,
I shall
make it clear. The Department was represented by Adv N Dukada SC
assisted by Adv S Motloung.
Ill
THE
RELIEF SOUGHT
[4]
The relevant portion of the relief sought in application 3484/2016
reads as follows:
"4.
That a rule
nisi
be issued calling upon the respondent
to show cause, if any, to the above Honourable Court on 25 August
2016, at 09h30 or as soon
thereafter as counsel for the applicant may
be heard, why an order in the following terms should not be granted:
4.1
Prohibiting the respondent or anyone on its behalf from entering the
premises of the applicant at the Universitas
and National Hospitals
and harassing the applicant's personnel and/or preventing or
hindering any employee, partner, medical practitioner
or associate in
the employment of the applicant to conduct the practice of a
radiologist; and to perform their duties in the treatment
of private
and public patients;
4.2
Prohibiting the respondent or anyone on its behalf from hindering or
preventing the applicant from using the diagnostic
radiology
equipment rented from the Department of Health, at the Universitas
and National Hospitals;
4.3
Prohibiting the respondent or anyone on its behalf to attach, remove
or take possession of any of the equipment,
including but not limited
to the applicant's operational systems, billing systems, reporting
systems and personal computers;
4.4
Prohibiting the respondent or anyone on its behalf from preventing
the personnel and patients of the applicant to
enter the hospital
premises;
4.5
Ordering the respondent to honour the rental agreement dated 6 March
2009 entered into by and between the applicant
and the Department of
Health;
4.6
That the prohibition placed upon professor Coert Stephanus de Vries
to undertake any remunerative work outside the
public sector and to
treat private patients, unilaterally placed upon him by Dr D Motau in
his capacity as Head: Health of the
Department of Health in a letter
dated 27 July 2016, be set aside;
4.7
That Dr BAF Benganga, the Acting Head: Clinical Services: Universitas
Hospital and Mr Tlhogo, a member of the Executive
Council of the
Universitas Hospital, furnish reasons on the return day by means of
sworn affidavit, why they should not be ordered
to pay the costs of
this application in their personal capacities
de
bonis
propriis:
a
l
ternatively
that respondent be ordered to pay the costs of this application.
5.
Granting an interim order, in terms of prayers 4.1, 4.2, 4.3, 4.4,
4.5
and 4.6 above, pending the return date.
6.
That the respondent or any entity or person on their behalf, be
interdicted
and restrained,
as aforesaid
pending a final determination
of the action
i
n case
number
1
651/201
6
between
the
same
parties
in
the
above
Court;
"
(emphasis added)
[5]
On 28 July 2016 Rampai J granted the application and I merely quote
the relevant parts of the order as contained in paragraphs
[7] and
[8]:
"7.
Pending the final adjudication of the application, the
status
quo
ante
to be maintained in accordance with
prayers 4.1 - 4.6 on the following understanding and undertakings:
7.1
Professor C.S. de Vries will be allowed to treat his private patients
pending the final adjuciation
of the application;
7.2
For this purpose, he may attend his practice at De Vries and
Associates at the Universitas Hospital
till Thursday the 4th day of
August 2016 at 23h00;
7.3
The respondent will return all, equipment, systems and computers of
the applicant, removed by
the respondent's employees on or about
Wednesday 27 July 2016 and Thursday 28 July 2016, without delay and
no later than Friday
29 July 2016 at 10h00.
8.
Costs of the application to stand over."
[6]
On the very next day, i.e. 29 July 2016 applicant obtained a
further
interim
interdict against the Department under
application number 3516/2016 on an urgent basis based on further
alleged acts of illegal
conduct committed by officials in the employ
of the Department. Fischer AJ granted several orders by agreement,
but I quote only
paragraphs [4], [5.1 - 5.5], [6] and [13] which are
relevant hereto:
"4.
A rule nisi is issued calling upon the respondent to show cause, if
any, to the above Honourable Court on Thursday, 11
August 2016, at
09h30 or as soon thereafter as counsel for the applicant may be
heard, why an order in the following terms should
not be granted:
5.1
That the respondent takes immediate steps no later than 18h00 today
29 July
2016 to unlock the door of the office and medical practice
rooms of Professor Coert Stephanus de Vries in the Universitas
hospital,
and to reinstate the locks removed and changed by employees
of the respondent and to return all keys confiscated; or to supply
Professor de Vries with new keys to the changed locks and further to
ensure that the said Professor de Vries has full, free, unhindered
and undisturbed access to the said office and rooms in terms of the
Order of Court issued in the matter between the parties on
Thursday
28 July 2016;
5.2
That the respondent takes immediate steps in terms of the Order of
court issued
in the matter between the parties on Thursday 28 July
2016, to return all equipment of the applicant, including but not
limited
to the applicant's operational systems, billing systems,
reporting systems and personal computers removed by the respondent's
employees
on or about Wednesday 27 July 2016 and Thursday 28 July
2016 by no later than 18h00 today, 29 July 2016;
5.3
That Dr BAF Benganga, the Acting Head: Clinical Services: Universitas
Hospital
and/or any security personnel be prohibited from entering
the Vascular and Intervention Theatre or any work place in the
Universitas
Hospital utilised by Professor de Vries and Dr E
Loggenberg of the applicant, while medical or clinical interventions
are in process;
5.4
That Dr BAF Benganga, the Acting Head: Clinical Services: Universitas
Hospital
furnish reasons on the return day by means of sworn
affidavit, why:
(a)
an order should not issue that the said Dr BAF Benganga is in
contempt of the order of the
above Honourable Court dated 28 July
2016, issued in application number 3484/2016;
(b)
the said Dr BAF Benganga should not be committed to imprisonment for
a period of ninety
(90) days or such other period as the court may
deem fit;
(c)
the aforementioned term of incarceration should not be suspended for
such period as the
above Honourable Court may determine, on the
condition that the said Dr BAF Benganga complies with the
aforementioned order of
Court;
5.5
That Dr BAF Benganga, the Acting Head: Clinical Services:
Universitas Hospital furnish reasons on the return
day by means
of sworn affidavit, why he should not be ordered to pay the costs of
this application in his personal capacity de
bonis propriis:
alternatively that respondent be ordered to pay the costs of this
application
6.
Granting an interim order, in terms of prayers 5.1, 5.2, 5.3 above
pending the
return date.
13.
This order is to be served on Dr BAF Benganga personally."
[7]
As is apparent from paragraph [5.4] of the order of 29 July 2016
applicant also obtained an order for Dr Benganga to advance
reasons
why he should not be convicted of contempt of court.
[8]
The Department filed a counter-application in application 3484/2016
in terms whereof it seeks the following relief:
"1.
Condoning the delay by the applicant to institute these proceedings
within the time limits prescribed
by the Uniform Rules of Court.
2.
An order declaring:
2.1
The lease agreement entered into between the Applicant and Respondent
on 6 March 2009 invalid
ab
initio,
of no
force and legal effect.
2.2
The decision of the Applicant not to extend the lease agreement
entered into between the Applicant
and the Respondent valid.
3.
Interdicting and restraining the Respondent from
3.1
using the diagnostic radiologic equipment of Applicant in Universitas
and National Hospitals;
3.2
treating private patients in Universitas and National Hospitals.
4.
An order evicting the Respondent and its members from Universitas and
National Hospitals.
5.
Directing the Respondent to pay costs of the
application on an attorney
and client scale."
[9]
The parties requested me to consolidate the aforesaid
applications and to deal with all issues raised therein
simultaneously.
Such an order was made.
IV
THE
CLAIM AND
COUNTER-CLAI
M
FILED IN
CASE NUMBER
1
651/2016
[10]
Action was issued by applicant as plaintiff against the Department
about three months prior to the issue of the first order
referred to
supra.
In terms thereof it filed two claims, one in
respect of the Universitas and National Hospitals and the other in
respect of the Pelonomi
Hospital. It seeks a declaratory order
pertaining to the first two hospitals confirming that the lease
agreement in respect of
equipment concluded with the Department on 6
March 2009, as extended, continues to be in force and effect;
alternatively damages
are claimed as a result of the Department's
repudiation of the agreement. The claim pertaining to the Pelonomi
Hospital is for
damages only based on the Department's repudiation of
the lease agreement and the resultant termination thereof.
[11]
On 22 June 2016, more than a month prior to the first
i
nte
r
i
m
order granted on 28 July 2016, the Department pleaded to the claim
and also filed a counter-claim. Applicant filed its plea to
the
counter-claim on the 29th August 2016. The following relief is
claimed in the counter-claim:
"1.
An order declaring the lease agreement entered into between the
Plaintiff
and the Defendant on 6 March 2009 invalid, of no force and
legal effect;
2.
An order declaring the decision of the Defendant to refuse to extend
the lease
agreement for a further 5 years valid;
3.
An order dismissing the Plaintiff's claim with costs."
It
will immediately be realised by the reader that exactly the same
relief is claimed in both the counter-application and counter-claim.
[12]
The pleadings have been closed and bearing in mind the awaiting trial
list in this province, there is no reason why trial dates
cannot be
obtained for hearing of the action during the third or fourth term of
2017.
V
BAC
KGROUND
[13]
It is not my intention to deal in detail with the factual background
and I shall endeavour to refer to the most relevant aspects
only. In
terms of the Department's Policy on Remunerative Work Outside the
Public Sector ("the RWOPS system") adopted
in 1992 medical
practitioners in the employ of the State are permitted to treat
private patients in addition to their public patients.
Therefore many
medical practitioners in the employ of the State are allowed to
perform their normal duties as State employees,
but to run private
practices as well subject to certain limitations.
[14]
After several processes, which also included a tender process which I
do not deem necessary to explain in any detail as this
is a matter to
be dealt with at the trial action between the parties in case number
1651/2016, the applicant was established and
it entered into an
agreement with the Department in terms of which the radiology
equipment of the Department was leased to applicant.
The underlying
principle of this lease agreement was to enable the applicant's
radiologists to treat private patients for their
own account without
having to pay huge amounts for their own radiology equipment by using
the very same equipment to treat public
patients as well.
[15]
On 5 April 2013, twenty one years after adoption of RWOPS, the
Department took a decision to withdraw from RWOPS during office
hours, but
interim
orders were obtained from this court
to suspend the decision pending finalisation of a review application
to the Labour Court.
[16]
Applicant duly acted in accordance with the lease agreement and gave
notice of extension thereof for a further period of five
years, but
on 2 September 2013 Dr D Motau in his capacity as HOD: Department of
Health indicated that the Department did not wish
to proceed with the
agreement. Several letters followed between the applicant and the
Department over a period of 2½years.
[17]
Notwithstanding the
interim
interdicts obtained, the
Department again took a decision that RWOPS would be suspended and no
treatment of private patients be
permitted. It is apparent that the
Department launched a two-pronged attack against applicant by firstly
"terminating"
the lease agreement and secondly by placing a
prohibition on any private practice work.
[18]
It needs to be mentioned that the four radiology specialists who are
associates of applicant, to wit Prof De Vries, Dr Loggenberg,
Dr
Janse van Rensburg and Dr Otto received written approval from the
Department on 6 July 2016 to treat private patients for the
period
until 31 March 2017.
[19]
Notwithstanding the applicant's allegation that it has been in
peaceful and undisturbed possession of the leased equipment
and its
private practice at the Universitas Hospital since 1 March 2009, the
Department rejects this version based on the communication
between
the parties since September 2013 and its refusal to accept that a
valid lease agreement or extension thereof came into
being. However,
the Department kept on receiving rentals and did not take any legal
action to set aside the lease and/or to eject
applicant from the
premises.
[20]
Notwithstanding the pending action, case number 1651/2016, and a
letter of applicant's attorney dated 26 July 2016, the Department
and
its officials with Drs Benganga and Nathan having assumed leadership
roles, decided to act as prosecutor, judge and executioner
on the
legal issue, i.e. the existence of a valid lease agreement still to
be decided and thereby taking the law into their own
hands.
[21]
I wish to make it clear that very few aspects are in dispute in these
applications. It is common cause that when further orders
were
obtained by agreement under case number 3516/2016 on 29 July 2016,
the Department acknowledged its unlawful action and the
acts of
spoliation complained about by applicant. Such concession is
apparent from the relief granted in paragraphs 5.1 and
5.2 of that
court order. I shall deal with the events of 27 to 29 July 2016 in
more detail
infra.
[22]
On 20 July 2016 Dr Nathan in her capacity as the acting CEO and Head
of the Clinical Department: Clinical Services at the Universitas
Hospital directed a letter to Prof De Vries in his capacity as Head
of the Clinical Department: Clinical Imaging Sciences and a
senior
associate of the applicant, requiring him to confirm that the
applicant has ceased its activities as per the instruction
from Dr
Mzangwa. Mr Jordaan, the applicant's Bloemfontein attorney intervened
by addressing a letter to Dr Nathan on 21 July 2016;
however, on 22
July 2016 Dr Nathan instructed Prof De Vries to ensure that all
medical services rendered by the applicant to private
patients be
stopped immediately, that applicant's personnel, i.e. the private
practice members, had to leave the Universitas Hospital
immediately
and that the Head of Security would assist with the expulsion if
needed. What is apparent from this is that Prof De
Vries in his
capacity as a State employee was instructed and expected by the
employer to take the law into his own hands and to
evict applicant
from the Universitas Hospital without legal process. This led to the
letter of 26 July 2016 by applicant's George
attorney referred to
supra
and the consequent harassment and intimidation
which escalated exponentially to a point where it became unbearable
for the associates
and employees of applicant to do their work. The
Department was actually carrying out its threats.
[23]
The four specialists who are associates of applicant have
appointments in the X-Ray Radiology Department of the Universitas
Hospital as well as appointments as lecturers at the Radiology
Department in the Medical Faculty of the University of the Free
State
and are on a joint establishment with the Department. They have
developed and possess rare skills in their specific fields
which
cannot be delivered by general radiologists. Applicant's practice
sees about fifty private patients per day, but in contrast
thereto
approximately two hundred public patients per day.
VI
THE
P
A
R
TI
E
S'
CONTENTIONS
[24]
It should be clear from the background provided with reference to the
litigation between the parties that there is a pending
action between
them under case number 1651/2016 regarding the validity of the
agreement of lease of diagnostic radiology equipment
concluded on 6
March 2009 as well as the validity of the extension of the lease for
a further period of five years.
[25]
The Department's case is that the lease agreement entered into
between applicant and the Department is invalid
ab initio
as
there was no compliance with mandatory official procurement processes
and therefore there could not be a valid extension of the
lease as
contended for by applicant. In fact the Department refused to extend
the lease agreement.
[26]
The Department believed, based on its refusal to extend the lease
agreement, that it was entitled to prohibit applicant from
rendering
medical services at the Universitas and National Hospitals and in the
process it, through its officials took the law
into their own hands
as will be explained
infra.
[27]
The Department contended that the terms of the court order of 28 July
2016 under case number 3484/2016 has the "effect
of nullifying
the entire counter-claim". According to it, confirmation of the
rule
nisi
would mean that by the time the action in case
1651/2016 is heard, the Department "will be without a defence".
This impression
is clearly wrong as the orders obtained are of a
temporary nature pending finalisation of the trial action.
[28]
The Department's stance is that this court should not grant the
relief in paragraph 4.5 of the notice of motion in application
3484/2016 because the issue therein is the subject of litigation
between applicant and the Department in the pending main action.
As
indicated, the relief obtained is of an
interim
nature.
VII
A HYBR
I
D APPLICATION: AN
INTERIM
INTERDICT AND
RELIEF
IN
TERMS
OF THE
MANDAMENT VAN SPOLIE
[29]
The relief sought by applicant is in the form of an
interim
interdict pending the outcome of the action instituted under case
number 1651/2016, although some relief is sought based on the
mandament van spolie.
[30]
It is to be noted at this stage already that the Department's
counsel incorrectly submitted that applicant seeks
a permanent
interdict and therefore the requirements relating to permanent
interdicts apply. I do not agree. The relief obtained
is intended to
interdict and restrain the Department or any person acting on its
behalf pending final determination of the action
in case number
1651/2016.
[31]
In the heads of argument applicant's counsel tried to label the claim
as a mandament van spolie, although it was eventually
acknowledged
that an
interim
interdict was sought as well and that
the requirements for
interim
interdicts have to be met.
[32]
The requisites for
interim
interdicts are well-known,
but it 1s apposite to quote them again, to wit:
"a.
A
prima facie
right;
b.
A well-grounded apprehension of irreparable harm if the interim
relief is not granted
and the ultimate relief is eventually granted;
c.
A balance of convenience in favour of the granting of the interim
relief; and
d.
The absence of any other satisfactory remedy."
See
Van Loggerenberg,
Erasmus:
Superior Court
Practice,
2
nd
edition at D6-17 and numerous authorities referred
to.
[33]
The mandament van spolie is a possessory remedy and it is also ·
regarded as an extraordinary and robust remedy. The
essential
characteristic thereof is that the legal process whereby the
possession of a party is protected, is kept strictly
separate from
the process whereby a party's right to ownership or other right to
the property in dispute is determined. The object
of the order is to
restore the
status
quo
ante
the
illegal action, it being an accepted principle that no one is
entitled to take the law into his own hands. See Van Loggerenberg
loc
cit
at D7-1 and authorities quoted.
[34]
The mandament van spolie is designed as a speedy remedy and the
following facts must be averred and proved by the applicant:
(a)
that nthe applicant was in peaceful andundisturbed possession of the
property; and
(b)
that the respondent deprived him/her of the
possession forc
i
bly
or wrongfully against
h
i
s
or
her
consent,
or
as
more
aptly
put
by
Van
B
l
erk
JA
in
Yeko
v
Qana
1
973
(4)
SA
735
(A) at
7
39G
with
reference to Voet who declared that even a thief or a robber is
entitled to a spoliation order: "All that the
spoliatus
has
to prove
,
is possess on
of a kind
that
warrants
the
protection
accorded
by
the
remedy,
and
that
he
was
unlawfully
ousted."
VIII
APPL
I
CABLE TEST
WHERE
F
I
N
AL
RELIEF
I
S
SOUGHT
[35]
I indicated
supra
that insofar as
interim
orders are sought by applicant in respect of some of the relief,
excluding the spoliation orders, the test to be applied in the
adjudication of
interim
interdicts is not as severe as in the
case of final relief. In considering the final relief sought by the
parties and in particular
by the Department
in the counter-application it is
necessary
to consider the requirements enunciated in
Plascon-Evans.
[36]
I also wish to refer to the following
dictum
by
Heher JA in
Wightman
t
/
a
JW
Construction
v
Headfour
(Pty) Ltd
and Another
[2008] ZASCA 6
;
2008 (3)
SA
371
(S
C
A),
quoting from para [13]:
"[13]
A real, genuine and bona fide dispute of fact can exist only where
the court is satisfied that the party who purports
to raise the
dispute has in his affidavit seriously and unambiguously addressed
the fact said to be disputed. There will of course
be instances where
a bare denial meets the requirement because there is no other way
open to the disputing party and nothing more
can therefore be
expected of him. But even that
may not be
sufficient
i
f the fact averred
lies
purely within
the knowledge of
the
averring
party and no
basis
i
s
laid
for
disputing
the
veracity
or
accuracy of
the
averment. When
the
facts averred
are
such
that
the
disputing
party
must necessarily
possess knowledge
of them
and
be
able to provide an answer (or
countervailing evidence)
i
f
they
be not
true
or
accurate
b
ut
,
i
nstead of
doing
so,
rests
h
i
s
case
on
a
bare
or
ambiguous
denial the
court
wil
l
generally
have difficulty
i
n
finding that
the test
i
s satisfied.
I say 'generally' because
factual averments seldom stand apart from a broader matrix of
circumstances all of which
needs to be borne in mind when
arriving at a decision. A litigant may not necessarily
recognise or understand
the nuances of a bare or general denial
as against a real attempt to grapple with all relevant factual
allegations made by
the other party.
But
when
he
signs
the
answering
affidavit, he
commits
himself
to
i
ts
contents,
i
nadequate
as
they
may
be.
and
will
only
in
exceptional
circumstances
be
permitted
to
disavow
them. There
is thus
a
serious
duty
i
mposed
upon a
legal
adviser who
settles an answering
affidavit to
ascertain
and
engage with
facts which
his
client
disputes
and
to
reflect such
disputes
fully
and
accurately in the answering affidavit. If that does
not happen it should come as no surprise that the court takes a
robust view
of the matter."
(emphasis
added.)
[37]
In motion proceedings the affidavits constitute both the pleadings
and the evidence and the issues and averments in support
of the
parties' cases should appear clearly therefrom. See
Minister
of
Land Affairs
and Agricultural
v
D
&
F
W
evell
Trust
2008
(2) SA
184
(SCA)
at
200D.
It is
trite that the applicant in application proceedings must make out his
or her case in the founding affidavit. That affidavit
must contain
sufficient facts in itself upon which a court may find in the
applicant's favour. An applicant must stand or fall
by his or her
founding affidavit. See
Director of
Hospital Services
v
Mistry
1
979
(
1
)
SA
626
(AD)
at
635H
-
636D.
IX
COUNTER-APPL
I
CATIONS
I
N
SPOLIATION
PROCEEDINGS
[38]
Mr Ploos van Amstel argued that this court could not consider the
counter-application based on the authorities applicable to
the
mandament van spolie. Although it is strictly speaking not necessary
to deal with this aspect, bearing in mind the conclusion
arrived at
in respect of the counter-application, it is clear that applicant
went further than merely relying on spoliation and
consequently this
court would be entitled in principle to adjudicate the
counter-application. I refer to
Street
Pole Ads
Durban
(Pty)
Ltd and Another
v
Ethekwini Municipality
[2008] ZAGPHC 33
;
2008 (5) SA 290
(SCA) at paras [14] to
[18] and especially the following
dictum
in para [18]:
"It
would in my view be obstructively formalistic to hold that, rather
than waiting for trial, the municipality could not join
issue
immediately on that dispute - as it did - nor join the university in
the proceedings for that purpose, as it did. The High
Court, which
had all the relevant information and contentions before it, chose
instead to decide the issue immediately: a just
and sensible
approach."
[39]
The facts
in casu
differ from those in
Street Pole
Ads
in that action was
inst
i
tuted
more than two months prior to the first interdict being granted and
by that time the Department had
already filed a plea and
counter-claim. There was therefore a pending
lis
between the
parties when the orders of 28 and 29 July 2016 were sought and
obtained. In
Street Pole Ads
the applicant applied for an
order in terms of the mandament van spolie, but also sought more
comprehensive relief, including a
temporary interdict pending
determination of an action still to be instituted. The Supreme Court
of Appeal found in that case that
the court a
quo
was
fully entitled to deal with the remainder of the issues as all
information and contentions were before it, which is not the
case
in
casu.
X
ADJUD
I
CATION OF THE
COUNTER-APPLICATION
[40]
The Department seeks in essence the review and setting aside of the
decision to enter into the lease agreement with applicant
in that a
declaratory order is sought in terms whereof the lease agreement is
declared invalid
ab
initio
and of no
force and legal effect. The further relief claimed should follow as
of course once a declaratory order is made in favour
of the
Department.
[41]
No doubt an organ of State is entitled to apply for the review and
setting aside of administrative action taken on behalf of
that
entity. See
MEC
for Health,
EC
v Kirland
Investments
2014 (3) SA 219
(SCA)
at paras [27] to [30].
[42]
During oral argument it was conceded on behalf of the
Department that the lease agreement between the parties would remain
valid until set aside by the court, a concession which reflects
the present state of our jurisprudence. See
Oudekraal
Estates
(Pty)
Ltd
v
C
ity
of
Cape
Town and
Others
2004 (
6
)
SA 222
(SCA)
at para
[37],
Kirland
Investments
supra
at para [65] as well as
Kwa
Sani
Municipality
v
Underbur
g
/
Himeville
Community
Watch
Association
and
Another
[2015] 2 All SA 657
(SCA) at paras [14] and
[15].
[43]
In order to adjudicate the merits of the counter-application it is
expected of the Department to present what is commonly referred
to as
its Record of Decision ("ROD"). It should have disclosed
the entire process followed prior to the signing of the
lease
agreement and all relevant collateral and/or pre-existing agreements
entered into and other applicable documents. The reasons
for the
decision, or the lack thereof, to enter into the lease agreement
should have been provided as well. In the process the
Department as
an organ of State seeking to repudiate its own administrative action
prima
facie
failed to prove the essential
requirements for a review application in order to succeed on the
merits in the counter-application.
The Department had to prove
invalidity. More will be said in this regard
infra.
[44]
I have already referred to relevant authorities pertaining to
applications for review by organs of State and do not intend
to
repeat any of those again. It is unnecessary to consider the merits
of the counter-application in the light of my conclusion
arrived at
infra,
save to mention the following. Applicant provided
a detailed version in the answering affidavit, relying on numerous
documents
supporting its defence to the claim that an invalid lease
agreement was entered into. I refer
inter
alia
to the allegation that applicant's doctors/ associates are at
this stage the only radiologists in State/university employ who can
render the services required by the Department. Applicant also relies
on the Public/Private Partnership entered into between the
Department, itself and Netcare, a relationship that started at the
beginning of the 21st century, and several further agreements
entered
into before the lease agreement of 6 March 2009 was eventually
concluded. Applicant's version must be accepted, bearing
in mind
Plascon
Evans
and
Wightman supra,
and especially insofar as the Department failed to file a
replying affidavit, denying applicant's version.
[45]
Contrary to the direct and cogent evidence presented by
applicant, supported by documentary evidence, the Department
relies
on the hearsay evidence of an HOD that was not involved at all in any
of the negotiations and transactions concluded prior
to the
conclusion of the 2009 lease agreement. It is just not good enough to
say that the erstwhile HOD could not be located to
obtain an
affidavit from him, but in any event, I find it hard to believe that
nobody with more information than the present HOD,
such as the MEC at
the time, the Deputy Director-General, or the Chief Financial Officer
of the Department could not be requested
to present the evidence that
the Department required to prove that an invalid lease agreement was
entered into.
[46]
On the Department's own version it decided in September 2013 that the
2009 lease agreement was invalid. Several letters were
sent to
applicant and/or its attorneys in this regard who responded in
writing. It took the Department nearly three
years since September
2013 to file a counter-application wherein it seeks the setting aside
of the 2009 lease agreement as invalid.
In terms of s 9(1)(b) of the
Promotion of Administrative Justice. Act, 3 of 2000 ("PAJA")
the maximum period allowed
is 180 days which means that the review
application should have been brought in March 2014 at the latest.
[47]
The Department is under the impression that it should ask for
condonation for the delay in instituting the proceedings within
the
time limits prescribed by the Uniform Rules of Court, but this is
clearly not so. It should have asked condonation in accordance
with
the provisions of PAJA which it failed to do. The allegations
contained in paragraph [11] of the founding affidavit in the
counter-application are baseless. It is unnecessary to
set out these reasons and/or to deal therewith in any detail,
save to
state the following. It is apparent that the Department
"...understood that the issue relating to the validity of
the
Lease Agreement and the obligation of the Applicant to extend the
lease would be dealt with by the court hearing the action."
The
counter-claim in the action was also instituted way out of time.
However this so-called reason for condonation emphasises that
the
trial court is indeed the correct court to
deal with applicant's main claim and the Department's
counter-claim in case number 1651/2016.
[48]
The Department failed to follow either the rule 53 procedure or the
regulations promulgated in terms of PAJA and thereby it
impinged upon
applicant's procedural rights. See
South African
Football
Association
v
Stanton
W
oodrush
(Pty)
Ltd
t
/
a
Stan
Smidt
&
Sons
and
Another
2003 (3) SA 313
(SCA) at
para [5]. In the words of Harms JA in the aforesaid passage, the
Department could not hide "behind a parapet of silence."
Applicant and the court who is requested to adjudicate the matter are
entitled to the full history of the tender process, or lack
of such a
process, all relevant documents pertaining to the Private/Public
Partnership, the agreements regarding outside
work and all
other agreements entered into prior to the conclusion of the 2009
lease agreement. Cameron J succinctly stated in
Kirland
Investments
s
u
pra
at
para [64] that government "should be held to the pain and duty
of proper process. It must apply formally for a court to
set aside a
defective decision, so that the court can properly consider its
effects on those subject to it" He continued in
similar vein at
para [65] and I quote: 'When government errs by issuing a defective
decision, the subject affected by it is entitled
to proper notice,
and to be afforded a proper hearing, on whether the decision should
be set aside.
Government
should
not
be allowed
to take
shortcuts.
"
I emphasise the last sentence and confirm that I shall deal
with this aspect again
infra.
[49]
I agree with applicant's counsel that the counter-application, in its
present format, is an abuse of court proceedings, vexatious
and
ill-conceived. Insofar as the merits thereof have not been considered
finally, it should merely be struck from the roll with
costs on the
scale as between attorney and client, including the costs consequent
upon the employment of two senior counsel.
XI
LIS
PENDENS
[50]
The relief claimed in prayers 1 and 2 of the counter-application is
identical to the relief claimed in the Department's counter-claim
in
case no 1651/2016. In fact, the Department's deponent admits in the
founding affidavit to the counter-application that it is
premised on
the same cause of action between the same parties and that the same
relief is sought as in the pending action, case
no 1651/2016.
[51]
In my view applicant has met the requirements for a plea of
tis
pendens.
See
National
Sorghum
Breweries
Ltd
(t
/
a
Vivo African
Breweries)
v
International
Liquor
Distributors
(Pty)
Ltd
[2000] ZASCA 159
;
2001 (2) SA 232
(SCA) at
para
[2]
of the majority judgment as well as
Caeserstone
Sdot-Yam
v
W
orld
of
Marble
and
Granite
2000
CC
2013 (6) SA 499
(SCA) at paras [2] and [36]. I would
have struck the counter-application from the roll for this reason as
well.
XII
CONTEMPT
OF
COURT
[52]
Mr Ploos van
Amstel placed it
on
record at the start of the
proceedings that applicant was not insisting that Dr Benganga
be
convicted of contempt of court, but submitted that applicant was
entitled to the remainder of the relief in application
3516/2016.
It appears as if the primary
reason for not proceeding with
the contempt of court application is
the fact that the court order of 28 July 2016 in application
3484/2016, (the first order
granted), was served by the Sheriff
on 1 August 2016 only. I take cognisance of applicant's attitude, but
need to express
my dissatisfaction with the manner in
which the officials of the Department treated the court
order. It
is common cause that the
Department was represented by an experienced counsel and
attorney.
Furthermore, Mr Finger, the Department's
senior legal adviser and Dr Benganga were in court on 28
July
2016 when the matter was heard by Rampai J. Even if it is
correct, as stated under oath by Dr Benganga, that he left
earlier and did not await Rampai J's judgment, I
find it extremely difficult to believe that
a
senior attorney in the office of the State
Attorney such as Mr Mohobo would not have communicated
the contents of the court order to the Department's
officials during the
evening
of 28 July or immediately after 08h00 the next
morning. Several
undertakings · were
recorded in the order and applicant's property had to be
handed back by 10h00 that
morning. A simple SMS was all that was
required if the attorney did not want to inconvenience the
officials of the Department
"due to the lateness of the hour."
In any Event the senior legal advisor, Mr Finger, surely had a
responsibility to inform
the HOD and his colleagues, Drs Benganga and
Nathan in particular. I shall again refer to relevant aspects
infra
when I exercise my discretion pertaining to costs.
XIII
E
VALUATI ON OF THE AVERMENTS IN
APPLICATIONS
3
484/2016
AND
3
5
1
6/2016
[53]
On 27 July 2016 Dr Benganga, Mr Tlhogo from management and Mr
Khatola, the Head of Security as well as other security personnel
entered applicant's premises. According to applicant's deponents the
number of people was between ten and twelve. Dr Otto, a female
who
experienced similar behaviour by the Department's officials decided
to send her female personnel home as she did not want them
to go
through the same traumatic events of two years earlier. Dr Benganga
argued with Prof De Vries and also instructed him to
ensure that
applicant immediately stop working. They had to indicate which assets
belonged to applicant so that it could be confiscated
and removed. Dr
Benganga denies this, testifying that nothing happened on the 2J1h,
but only on the 28
th
.
[54]
Again, on 28 July 2016 about ten to twelve people entered the
premises of the applicant at the Universitas Hospital which included
Dr Benganga as well as the Head of Security. Like the previous day,
Dr Benganga was very aggressive and indicated that it
was his
intention to confiscate the equipment that
the applicant uses in its radiology
practice. Several of
applicant's own equipment, such as personal computers, operational
systems, billing systems, reporting systems
and imagery of different
fields of medical radiology were confiscated and removed. Dr Benganga
testified that he was soft-spoken
all the time and that he acted
peacefully in conveying the message that applicant's members had to
vacate the premises. He also
testified that there were only four
people in his group, including himself.
[55]
Mr Jordaan, applicant's Bloemfontein attorney, arrived at the scene
and showed Dr Benganga the letter of the George attorney
dated 26
July 2016 to which I referred
supra.
Dr Benganga read
the letter, but merely indicated that he was acting on instructions
from the Department. Later the morning the
medical practitioners of
the Radiology Department were called to a meeting where Dr Nathan
informed them that Dr Gerbremariam,
a radiologist from Pelonomi
Hospital had been appointed as acting Head of the Department of
Radiology and at the Medical Faculty
of the University of the Free
State as Prof De Vries had been suspended.
[56]
Photos were taken by a member of applicant and it is apparent from
this objective evidence that there were more security guards
present
than the figure stated by Dr Benganga. I must mention that although
the Department conceded that its officials were guilty
of the acts of
spoliation complained of, it denied that Dr Benganga or anyone else
of the Department acted aggressively and/or
harassed any of the
personnel of applicant. I shall deal with this issue
infra.
[57]
The events of 27 and 28 of July 2016 led to the first urgent
application on 28 July 2016 under application number 3484/2016.
Notwithstanding the clear directives issued by the court, the
Department did not adhere thereto, but in flagrant disregard of the
court order Dr Benganga and his platoon of security officers visited
the practice of applicant again on 29 July 2016, but failed
to return
the assets removed earlier. By then it appeared that the lock of Prof
De Vries' office had been changed and that his
office, which was open
during the evening, was thereafter locked, making it impossible for
him to obtain his protective gear and
cell phone.
[58]
Although Dr Benganga denies that he entered the theatre where a
patient was ready to be operated on by Prof De Vries, his version
is
difficult to believe in light of the evidence of several witnesses
involved with the medical procedure undertaken that morning.
Prof De
Vries pointed out that he had been summoned to the vascular
intervention theatre for a life threatening, intricate and
complicated procedure to be undertaken on a patient, but
notwithstanding this he was harassed all the way to the theatre. In
the
process a theatre sister locked the theatre door to prevent Dr
Benganga and his team from getting into the theatre, but he
eventually
got access through another door, continuing to argue with
Prof De Vries whilst the patient was lying exposed on the operating
table.
[59]
After this episode Dr Otto also received a letter in terms whereof
she was requested to give reasons why she should not be
suspended
insofar as she displayed insubordination by refusing to carry out an
instruction to stop applicant's activities at the
Universitas
Hospital as instructed by Dr Benganga. Several other alllegations
against her were made as well.
[60]
As mentioned
supra
the applications before me have been
consolidated. The first application issued on 28 July 2016 is
application 3484/2016 whilst
the second application, issued the next
day containing also the contempt of court prayer, is application
3516/2016. I remind the
reader that in the first application orders
were granted by Rampai J during the evening of 28 July 2016.
Paragraph 7.1 thereof
stipulates that the Department will allow Prof
De Vries to treat his private patients pending the final adjudication
of the application
and in terms of paragraph 7.3 the Department was
ordered to return all equipment, systems and computers of applicant
removed by
its employees earlier, without delay and not later than
Friday 29 July 2016 at 10h00. Clearly, the intention was that the
return
should be effected immediately and as soon as reasonably
possible. 1OhOO was set as the deadline. I also remind the reader
that
the Department was represented by an experienced legal team and
that the senior legal advisor, Mr Finger and Dr Benganga were present
during the proceedings although Dr Benganga alleges that he left
before orders were eventually granted by Rampai J.
[61]
The Department did not return the items mentioned in paragraph 7.3 of
the order, but contrary to the terms of the order employees
of the
Department under the leadership of Dr Benganga went to applicant's
practice during the morning of 29 July 2016 and continued
with the
harassment and intimidation of its personnel. As mentioned Prof De
Vries' office was locked after the locks had been changed,
preventing
him access to his office. Further allegations have been made in
respect of harassment of applicant's personnel, including
the
professional staff thereof, but it will not serve any purpose to
summarise and evaluate all alleged unlawful behaviour, especially
in
view of the concession made by the Department's counsel. As
mentioned, Dr Benganga was the main protagonist, assisted by several
security officers in the employ of the Department. Although some
details of Dr Benganga's actions as alleged by applicant have
been
denied by him, there can be no doubt that, based on the concessions
made, he interfered with applicant's practice. I am satisfied
that
the Department failed to comply with the first court order and that a
further order was required. Dr Benganga's version that
he acted in a
mild and meek manner, that he was soft-spoken and not aggressive, is
so far-fetched and untenable and that it can
be rejected on the
papers which I do.
[62]
I find that during the course of the morning of 29 July 2016, Dr
Benganga really acted like a bull in a China shop, being assisted
once again by his platoon of security guards. His intention was
to close down the applicant's practice as he was allegedly
acting on
instructions of his employer. He would do what was required to ensure
that his mandate was fulfilled. Obviously, the
mandate, if he can be
believed, was to close down the applicant's practice, notwithstanding
the undertakings by the Department
which are contained in the order
of Rampai J. It may be a fair question as to why the MEC or HOD of
the Department did not depose
to confirmatory affidavits. A
reasonable deduction to be made, if Dr Benganga can be believed, is
that they did not want to expose
themselves to possible sanction by
the court.
[63]
As mentioned applicant has proved the unlawful actions relied upon to
obtain the order of 28 July 2016. Dr Benganga and his
co-employees
acted wrongfully, high-handedly, with total disregard of the rights
of applicant, its professional staff and its employees
and in
flagrant disregard of the laws of our country. The unlawful action
did not stop after the first order was obtained, but
the momentum
increased during the morning of 29 July 2016 in defiance of the court
order of 28 July 2016. As mentioned I am satisfied
that the version
put up by Dr Benganga and the deponents who filed confirmatory
affidavits are far-fetched and untenable. Insofar
as their versions
are in conflict with that of applicant it should be rejected as
improbable and false.
[64]
Insofar as
interim
relief is sought, applicant needs to
prove the four requisites set out above. I do not
deem it necessary
to consider each of the requirements as
the acceptable evidence is overwhelmingly in favour of
granting relief. There
is, however,one aspect which I would like to
point out and that is the balance of convenience. The RWOPS system
has been in existence
since 1992 and bearing in mind the short period
of time until final adjudication of the pending action, there cannot
be any prejudice
caused to the Department if relief is granted as
requested even if the Department ultimately succeeds. On the other
hand, applicant
and its associates will be seriously affected if they
were to discontinue medical services to private patients.
[65]
Another relevant factor in respect of the balance of convenience, and
in my view more important than the first factor, is
the right
of" public (and private) patients to proper medical care.
All associates of applicant have developed and possess
rare skills.
Patients from across the Free State and
even as far afield as Northern Cape,
Eastern Cape
and Lesotho are being treated at the Universitas Hospital by
inter
alia
applicant and its associates.
There are only five specialists in the whole of South Africa, except
Prof de Vries and dr Loggenberg,
who can reverse a stroke and
treat aneurisms in the brain by
intravascular intervention.
The Universitas
Hospital cannot afford to
forego these skills
and experience,
including the skills and experience of the other
associates. Ultimately, the
very public that the Department
is supposed to serve, will
suffer. Presently
about two hundred public patients are treated
daily by these professionals.
[66]
The Department's counsel conceded that its officials could not take
the law into their own hands, a concession correctly made.
Also, as
Cameron J stated in
Kirland Investment
supra,
government should not be allowed to take shortcuts. The Department
was duly warned in a letter of applicant's George attorneys,
Messrs
Chimes Van Wyk Inc dated 26 July 2016 received by Dr Nathan and Mr
Finger on the same date, i.e. two days before the first
order by
Rampai J. It was advised that there was a pending action in the Free
State High Court for confirmation of the lease agreement
as extended
to be in force and effect and that no review application had been
brought to set aside the composite tender agreement
from which the
lease agreement originated. The Department was warned that an
interdict would be obtained if need be. This letter
was written in
response to a letter by Dr Nathan dated 22 July 2016 instructing
applicant to cease its radiology practice with
immediate effect.
[67]
The authorities relied upon by respondent's counsel to show that
spoliation was not committed are clearly distinguishable on
the
facts. In
ATM
Solutions
(Pty)
Ltd
v
Olkru
Handelaars
CC
and
Another
2008 (2) 345 (CPD) the
applicant tried to rely on the mandament van spolie which was found
not to be permissible where it in essence
claimed specific
performance based on contract. In any event the facts in that matter
indicate that the applicant was never in
possession, not to speak of
peaceful and undisturbed possession, of the particular ATM device. In
my view the
dicta
of Flemming J in
Mbangi and
Others
v Dobsonville
City
Council
1991 (2)
SA 330
(W) at 336F and further relied upon do not support the
Department's case. At 336J Flemming J explained himself as follows:
"It
seems sufficiently logical to find the answer therein that
it is appropriate to regard it as actionable to disturb possession
only
if the possession clearly exists, if the possession is
sufficiently firm or established to be deserving protection with such
a
strong remedy."The communication between the parties and the
Department's stance during the period of 2% years prior to the
events
of July 2016 cannot be regarded as a factor indicating that applicant
was not in peaceful and undisturbed possession. Applicant
carried on
treating public and private patients throughout this period by making
use of its own as well as State equipment whilst
paying the rental
agreed upon which was accepted throughout this period by the
Department. Applicant's possession was clearly established
in March
2009.
[68]
I wish to make it clear that even in the event of a finding that some
of the relief claimed and granted herein could be regarded
as final
relief, I remain satisfied that applicant succeeded in proving an
entitlement to any such orders.
[69]
I am satisfied that applicant has made out a proper case for relief
and that the rule
nisi
in application 3484/2016 should be
confirmed. A proper case has also been made out for the relief
claimed in application 3516/2016
and the rule
nisi
of
29 July 2016 can be confirmed on the basis that paragraphs 5.1, 5.2
and 5.3 thereof are made final.
[70]
Mr Ploos van Amstel asked me to grant an order under "Further
relief', interdicting the Department from withdrawing remunerative
work performed by applicant and its associates outside the public
service. The issue is whether this aspect has been fully canvassed
in
the application papers. It appears to be the case. Applicant dealt
with the issue in the founding papers in application 3484/2016
and Dr
Benganga stated the following in his answering affidavit in
application 3516/2016: "... at no stage has the Respondent
prohibited any doctors of the Applicant from treating private
patients provided that such doctors have the necessary approval of
the department to do so." - see paragraph 13.2; "I again
reiterate that the associates of the Applicant have not been
prohibited from doing remunerative work outside the public sector
hours." - at paragraph 17 and "... only Prof de Vries
is
prohibited from doing any remunerative work outside the public sector
hours because he is currently under suspension. The other
members of
the Applicant are not prohibited from doing any remunerative work
outside the public sector hours ...." - at paragraph
49.3.
XIV
COSTS
[71]
The contempt of court application has not been proceeded with,
clearly insofar as the court order of 28 July 2016 was only
served on
Dr Benganga on the 1st of August 2016. . 1 have no doubt in my mind
that Dr Benganga became aware of the contents of
the court order much
earlier. He attended the proceedings and knew exactly what applicant
intended the court to order. It was his
actions that were under the
spotlight. Although I am prepared to accept that he left before the
order was actually made, Mr Finger,
a senior legal adviser of the
Department as well as Mr Mohobo of the State Attorney's office and
the Department's counsel attended
the proceedings throughout. These
gentlemen knew that it was expected of the Department to act
immediately and to return assets
removed by not later than 10H00 the
next morning. Also, that they had to comply with all the other orders
issued,
inter
alia
to honour the lease agreement
dated 6 March 2009. No doubt, when the second order was issued by
agreement on 29 July 2016, Dr Benganga
and his colleagues, including
Mr Finger, would have been alerted to the contents of the first
order if they were previously
unaware thereof as they allege.
[72]
I wish to echo the words of Dr Otto in the replying affidavit in case
number 3516/2016 in this regard:
"I
am shocked that these gentlemen (Messrs Finger and Mohobo) who were
in Court when the order was granted, did not immediately
relay the
contents thereof to the affected officials in the Department,
especially the MEC, the Head of the Department (Dr Motau),
Dr
Benganga, Dr Nathan and Mr Tlhogo."
I
also agree with her sentiments that there was a positive duty resting
on the Department and its employees implicated in the application,
especially Dr Benganga and Dr Nathan whose conduct was the subject
matter of the court proceedings, to ascertain exactly what the
rights
and responsibilities were as pronounced by the court. Mr Finger who
was in court all the time during the proceedings made
the following
unfortunate allegation which I am not prepared to accept as the
truth:
"I
wish to reiterate that none of the officials of the Respondent were
aware about the contents of the order granted by the
court on 28 July
2016 under case number 3484/2016 until the 1st August 2016 when I
downloaded the order from my computer after
I had received it from
the Respondent's attorney."
[73]
Mr Mohobo mentioned the following:
"Due
to the lateness of the hour, I did not have the opportunity to
discuss
the contents of the order with the respondent or
any of his officials." (emphasis added)
I
find this highly untenable and unacceptable. Firstly, it is not
stated that the contents of the court order were not
communicated, but merely that no discussion in respect thereof took
place. It would be expected of a senior attorney like Mr Mohobo
who
knew that he would not be at office the next morning to do anything
in his power to ensure that the contents of the urgent
court
order,
inter
alia
directing his clients
to respond by not later than 1OHOO the very next day and to honour
the lease agreement, are being communicated
to the responsible
people, if not that evening, then early the next morning. I do not
accept for one moment that a senior attorney
would display such a
lack of respect towards an urgent court order as I am requested to
believe.
[74]
The institution of further proceedings between the
same parties relating to the same subject matter while
the first
proceeding is still pending is
prima
facie
vexatious. See
Painter
v Strauss
1951 (3) SA 307
(OPD) at 312E.
[75]
The Department as an organ of State should, as any other citizen,
respect the Constitution and the laws of our country and
adhere to
the due process of the administration of the law. In
casu
Dr Benganga and his platoon of security officers acted in a high
handed, arrogant and aggressive manner. They showed no respect
for
the rule of law which is so crucial for a defensible and sustainable
democracy. There is no room for self-help by anybody;
especially not
by the State and its officials. This rule is necessary for the
protection of the individual against arbitrary and
subjective
decisions and conduct by an adversary. See
C
hief
Lesapo
v
North
W
est Agricultural
Bank
and Another
[1999] ZACC 16
;
2000 (1) SA 409
(CC)
at paras [17] and [18]. The Department and its officials bear a
special obligation to ensure that the work of the judiciary
is not
impeded. There should be strict compliance with court orders. See
N
yathi
v
MEG
for
Department
of
Health,
Gauteng
and
Another
2008 (5)
SA 94
(CC) at paras [80], [81] and [91]. Organs of State,
institutions and people in general should not be allowed to bypass
the courts
and to usurp the inherent functions of the courts by
deciding their own claims and relief. See
Metcash
Trading
Ltd
v
Commissioner, South
African Revenue Service and
Another
2001
(1) SA 1109
(CC) at para [50].
[76]
Mr Ploos van Amstel requested me to grant costs in favour of
applicant in respect of the two applications
including the opposition of the counter-application on an
attorney and client scale, such costs to include the costs of three
counsel. He also submitted that a further order should be made in
terms whereof the particular officials be ordered to reimburse
the
Department in respect of such costs to be paid by the Department to
applicant. The first question to be asked is who would
be requested
to monitor the situation in such a case. Surely it cannot be asked of
the court to keep the matter in abeyance and
to monitor whether there
was compliance or not. Applicant could and should have applied for
costs orders
de
bonis
propriis
against Drs Benganga and Nathan and thereby accepting the risk
that these costs may not be paid by them in their personal
capacities,
leaving applicant with an empty judgment. In fact, Dr
Benganga was called upon to advance reasons in application 3516/2016
why
he should not pay the costs
de bonis propriis,
but
Mr Ploos van Amstel did not insist on such order. I am not prepared
to grant the extraordinary costs order requested by applicant
at the
hearing of the application. My personal view is that courts should be
seen to let recalcitrant State officials pay for their
actions or
inactions in suitable cases in order to decrease the State's burden
in respect of unnecessary incurred and/or wasted
legal costs, but I
cannot make an order not asked for. There is no reason why the costs
of three counsel should be allowed. The
matter is not that intricate
and applicant had the benefit of the services of two senior counsel.
[77]
Having considered the matter and in particular the arrogant,
foolhardy and recalcitrant attitude of the Department's senior
officials such as Drs Nathan and Benganga in particular, who should
have known better bearing in mind the luxury of legal
assistence from Mr Finger, a senior legal adviser, as well as two
experienced members of the bar and side-bar respectively, there
is no
reason why the Department should not be penalised with a punitive
costs order.
XV
ORDERS
[78]
The following orders are made:
1.
The rule
nisi
issued on 28 July 2016 in application
number 3484/2016 is confirmed.
2.
The rule
nisi
issued on 29 July 2016 in application
number 3516/2016, with reference to paragraphs 5. 1, 5.2 and 5.3
only, is confirmed.
3.
It is recorded that the relief granted in paragraph 1
supra
is of an
interim
nature pending finalisation of the
disputes between the parties in case number 1651/2016.
4.
The Free State Department of Health 1s interdicted from withdrawing
from the RWOPS system in respect of Prof
De Vries and Drs S Otto, E
Loggenberg and J Janse van Rensburg pending the outcome of case
number 1651/2016, alternatively the
outcome of a fair, transparent
and equitable process to have the RWOPS system set aside.
5.
The counter-application in application 3484/2016 is struck from the
roll.
6.
The respondent, i.e. the MEC: Free State Department of Health, is
ordered to pay the costs of the applicant,
De Vries and Associates,
pertaining to applications 3484/2016 and 3516/2016, including the
costs of opposition of the counter
application in application
3484/2016, on the scale as between attorney and client, such costs to
include the costs of two senior
counsel.
________________
J.P.
DAFFUE, J
On
behalf of the applicant: Adv C
Ploos van Amstel SC
with Adv J Y Claasen SC
Instructed by:
JL Jordaan Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Adv N Dukada SC
with Adv S Motloung
Instructed by:
State Attorney
BLOEMFONTEIN
/eb