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[2016] ZANCHC 56
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Kouter v MEC for Health: Department of Health: NC Province and Others (1750/2015) [2016] ZANCHC 56 (22 January 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGHT COURT KIMBERLEY
)
Case
number:
1750/2015
Date
heard:
04
/ 12 / 2015
Date
delivered:
22
/ 01 / 2016
In
the application between:
NICHOLE
JUANLY KOUTER
Applicant
and
THE
MEC FOR HEALTH : DEPARTMENT
OF
HEALTH: NC PROVINCE
First
Respondent
THE
HOD : DEPARTMENT OF HEALTH:
NC
PROVINCE
Second
Respondent
THE
CHIEF EXECUTIVE OFFICER:
KIMBERLEY
HOSPITAL COMPLEX
Third
Respondent
Coram:
Erasmus,
AJ
JUDGMENT
ERASMUS,
AJ
INTRODUCTION
[1]
On 19 June 2015 the applicant was granted an order under case number
1061/2015 in terms of which the respondents were ordered
to provide
copies of the medical records held in respect of the pregnancy and
the delivery of the applicant’s minor child,
as well as the
medical records of the minor child born at the Kimberley Hospital
Complex on 14 July 2014, within 14 (FOURTEEN)
days from the date of
the order.
[2]
The applicant herein now seeks an order
2.1
declaring
the respondents to be in contempt of the abovementioned court order,
2.2
that
the respondents be committed to such period of imprisonment as the
Court deems fit, which imprisonment is to be suspended on
condition
that the respondents comply with the initial court order dated 19
June 2015 within 10 (TEN) days from date of this order,
and further
2.3
that
the respondents be ordered to pay the costs of this application on a
scale as between attorney and client.
FACTUAL
BACKGROUND
[3]
The applicant, through her attorney, lodged an application in terms
of the Promotion of Access to Information Act, No. 2 of
2000 (‘PAIA’)
on 19 February 2015, requesting access to and copies of the relevant
hospital records in respect of herself
and the minor child. Save
for written requests by Mr. Mdunge and Mr. Mashilo for payment of the
initiation fee and costs
for the copies, dated 2, 5 and 17 March 2015
respectively, there was no written response to the request for the
records.
[4]
On 27 March 2015 the applicant proceeded to lodge an internal appeal
in terms of section 74 and 75 of PAIA. Copies of
the relevant
forms were also served at the offices of the respondents on 7 and 8
April 2015.
[5]
During April 2015 the applicant’s attorney was informed that
the requested records could be collected from the Kimberley
Hospital. When he attempted to do so, he was informed that the
relevant file could not be traced. After several further
attempts to obtain copies of the records, a bundle of documents was
eventually handed over to the applicant’s attorney at
the end
of April 2015. It is common cause that these did not constitute
the full hospital records.
[6]
The failure to respond to the request to provide access to and copies
of full the hospital records led to the application which
served
before Pakati, J. This application was lodged on 28 May 2015.
The respondents did not oppose that application.
[7]
On 18 June 2015 the State Attorney delivered a letter to the
applicant’s attorney, stating that copies of the medical
records of the Kimberley Hospital Complex were attached. Again
these documents did not constitute the complete hospital records
sought. As a result thereof the applicant proceeded with the
application on 19 June 2015 and the order was granted by Pakati,
J.
[8]
The State Attorney was informed on 25 June 2015 that the order had
been granted and was requested to ensure compliance. On
9 July
2015 the State Attorney delivered additional documents referred to in
the court order. These documents had not previously
been
supplied and no explanation was given as to why they were not filed
earlier. Unfortunately these records pertained only
to the
minor child and not to the applicant. The respondents had thus
by then still not fully complied with the court order.
[9]
On 10 July 2015 the applicant’s attorney caused a copy of the
court order to be delivered to the offices of the respondents.
On
14 July 2015 the State Attorney delivered a further letter to the
applicant’s attorney, undertaking to supply the
outstanding
documents by close of business on 15 July 2015. No mention was
made of any problems pertaining to the tracing
of the relevant
documents.
[10]
On 15 July 2015 the State Attorney delivered a letter to the
applicant’s attorney, alleging that file number 31396823
(the
minor’s file) could not be traced. This was the first
time any mention was made that the file could not be traced
and no
explanation was provided as to what could have happened to the said
file. It was also alleged that the maternity records
had been
provided to the applicant (which is denied by the applicant),
although no proof of such delivery was attached.
[11]
As there had still not been full compliance with the court order, the
applicant proceeded to lodge the current application
on 28 August
2015.
[12]
The respondents opposed the application. Mr. Mashilo, the
Senior Legal Admin Officer of the Department of
Health, Northern Cape
Province (‘the Department’) deposed to the answering
affidavit. Mr. Mdunge, an administrative
clerk in the revenue
department of the Kimberley Hospital Complex, deposed to a
confirmatory affidavit. The respondents did
not file
confirmatory affidavits.
[13]
From the answering papers it appears that the respondents take issue
with the citation of the third respondent. Their
defence is based on
the premise that the first and second respondent are in no position
to personally provide the requested documents
and that they acted
bona
fide
in
their interaction with the applicant’s attorney. It is
denied that the non-compliance with the court order was wilful
and
mala
fide.
It
was alleged that a diligent search was conducted and that the
applicant was provided with all the documents in possession of
the
Department.
CITATION
OF THE THIRD RESPONDENT
[14]
In the answering affidavit, Mr. Mashilo stated that the chief
executive officer is the head of the Kimberley Hospital
Complex and
that there exists no position such as that of a manager in the employ
of the Department of Health. It was submitted
that there is a
misjoinder and that the application be dismissed on this basis.
[15]
In the replying papers the applicant responded that if Mr. Mashilo’s
allegations were accepted as correct, then
the citation amounts to a
mere mistake in the description and does not constitute a
misjoinder.
[16]
Adv. Manye, on behalf of the respondents, persisted with the issue
pertaining to the citation of the third respondent
during argument
despite the fact that he had not dealt with it in his heads of
argument.
[17]
Adv. van Niekerk SC, on behalf of the applicant, requested an
amendment to the effect that any reference to the third
respondent as
“the Manager” be substituted with “the Chief
Executive Officer: The Kimberley Hospital Complex”.
I
granted the request and my reasons follow below.
[18]
The third respondent was cited in both applications as the manager of
the Kimberley Hospital Complex and described as
the administrative
head of the said hospital as per address Kimberley Hospital Complex.
The third respondent is referred
to as such in the court order
of Pakati, J. There could have been no doubt that the
applications were directed to the administrative
head of the
Kimberley Hospital Complex, especially so if there exists no post of
manager.
[19]
Service and knowledge of the applications have never been disputed.
I accept that the papers were served on the
administrative head of
the hospital. If the administrative head is referred to in the
hospital as the Chief Executive Officer,
the applications would
surely have come to his attention. There is no
allegation in the answering affidavit that
the Chief Executive
Officer, being the administrative head of the institution, was
unaware of the applications. The amendment
merely has the
effect that the papers will reflect the correct post description of
the administrative head of the Kimberley Hospital
Complex.
CONTEMPT
OF COURT
[20]
In terms of section 13 of the National Health Act, No. 61 of 2003
(the ‘NHA’) a person in charge of a health
establishment
must ensure, subject to PAIA, that a health record containing such
information as may be prescribed, be created and
maintained for every
user of health services.
[21]
Section 23 of PAIA reads as follows:
“
Records
that cannot be found or do not exist.
—
(1) If—
(a)
all reasonable steps have been taken to find a record requested; and
(b)
there are reasonable grounds for believing that the record—
(i)
is in the public body’s possession but cannot be found; or
(ii)
does not exist, the information officer of a public body must, by way
of affidavit or affirmation, notify the requester that
it is not
possible to give access to that record.
(2)
The affidavit or affirmation referred to in
subsection
(1)
must
give a full account of all steps taken to find the record in question
or to determine whether the record exists, as the case
may be,
including all communications with every person who conducted the
search on behalf of the information officer.
(3) …
.”
[23]
It
is common cause that certain records were kept in respect of the
applicant and her minor son and that the procedures to gain
access to
such records, as envisaged in PAIA, were followed and exhausted.
N
o
affidavit in terms of section 23 of PAIA has been filed.
[24]
The legal position pertaining to civil contempt proceedings was
summarized by Cameron JA in
FAKIE
NO v CCII SYSTEMS (PTY) LTD
[1]
at
par [42] to be
as
follows:
“
(a)
The civil
contempt procedure is a valuable and important mechanism for securing
compliance with court orders, and survives constitutional
scrutiny in
the form of a motion court application adapted to constitutional
requirements.
(b)
The respondent in such proceedings is not an 'accused person', but is
entitled to analogous protections
as are appropriate to motion
proceedings.
(c)
In particular, the applicant must prove the requisites of contempt
(the order; service or notice; non-compliance;
and wilfulness and
mala fides) beyond reasonable doubt.
(d)
But, once the applicant has proved the order, service or notice, and
non-compliance, the respondent
bears an evidential burden in relation
to wilfulness and mala fides: Should the respondent fail to advance
evidence that establishes
a reasonable doubt as to whether
non-compliance was wilful and mala fide, contempt will have been
established beyond reasonable
doubt.
(e)
A declarator
and other appropriate remedies remain available to a civil applicant
on proof on a balance of probabilities.”
[25]
In this instance the applicant has proved
the
order; service or notice and non-compliance beyond reasonable doubt.
25.1
A court order was granted by Pakati J on 19 June 2015 in terms of
which the respondents had to provide copies of certain records;
25.2 The
respondents had knowledge of such order; and
25.3
Certain of the records and/or documents referred to in the order have
still not been provided by the respondents.
[26]
The only question that remains to be answered is whether the
applicant proved beyond reasonable doubt that the respondents’
failure to comply with the order of Pakati J was wilful and
mala
fide
.
[27]
Mr. van Niekerk submitted that the respondents failed to provide any
explanation for their failure to comply with the
court order of
Pakati, J. They had thus had not discharged the
evidential
burden and established reasonable doubt in relation to wilfulness and
mala
fides.
If
this is so, contempt has been established beyond reasonable doubt.
[28]
Mr. Manye, on behalf of the respondents, submitted that I
should find that there exists reasonable doubt as to
whether the
non-compliance was wilful and
mala
fide.
[29]
Cameron JA also stated in
FAKIE
supra
:
[2]
“
These
requirements – that the refusal to obey should be both wilful
and mala fide, and that
unreasonable
non-compliance, provided it is bona fide, does not constitute
contempt - accord with the broader definition of the
crime, of which
non-compliance with civil orders is a manifestation. They show that
the offence is committed not by mere disregard
of a court order, but
by the deliberate and intentional violation of the court's dignity,
repute or authority that this evinces.”
[30]
Although there has been non-compliance with the court order and also
the provisions of section 23 of PAIA, it may be
said that the conduct
of the respondents was unreasonable. I must be convinced
however, beyond reasonable doubt, that the
respondents’
non-compliance with the court order was deliberate and
mala
fide.
[31]
It is common cause that officials, acting on instructions of the
respondents, conducted a search and provided the applicant
with
certain copies of the records under control of the hospital over a
period of time. In the answering affidavit it was
also stated
that there are no further records in possession of the health
establishment. On the evidence before me I cannot
find that the
respondents deliberately and intentionally
violated
the Court's dignity, repute or authority. If this is so, the
application stands to be dismissed.
COSTS
[32]
It is trite that in the awarding costs, the court has a discretion
which is to be exercised judicially upon consideration
of the facts
of each case and in fairness to the parties involved.
[3]
[33]
There are no hard and fast rules for guidance to a court to which it
will be expected to conform. In
CRONJE
v PELSER
[4]
Van
Blerk JA stated the position to be as follows:
“
Dit
kan nie sterk genoeg beklemtoon word nie dat die dogmatiese
toepassing van ander gewysdes, as sou dit geykte beginsels vir
kostebevele voorskryf, die ongewenste uitwerking het dat dié
diskresie waarmee die Hof a quo beklee is aan bande gelê
word.
Vgl. die aanmerkings van Regterpresident DE VILLIERS in Fripp v.
Gibbon & Co., supra op bl. 364. Al sou die graad van
skuld ’n
oorweging wees, wat in aanmerking geneem behoort te word, volg dit
nie noodwendig dat, indien dit hier verontagsaam
is, daar geen ander
gronde bestaan wat die beslissing regverdig nie.”
[34]
The court is entitled to deprive a successful party of his costs and
to order such party to pay the costs of the unsuccessful
party.
The circumstances of this case warrant a deviation from the general
rule that the successful party is entitled to
its costs.
[35]
The Department, through its officials, neglected their duties
conferred upon them in terms of the NHA and PAIA.
They failed
to respond to the application for access to the records and the
internal appeal of the applicant, lodged in terms of
PAIA.
Although copies of certain documents were provided to the applicant,
these were provided in drips and drabs over a
period of time.
The copies were provided after the applicant had approached the Court
with the initial application and further
after the court order was
granted on 19 June 2015.
[36]
The information officer of the Department could have prevented
further litigation by merely complying with the provisions
of section
23 of PAIA. The respondents opposed this application on 7
September 2015. At best for the respondents it
can be found
that the first attempt at compliance with section 23 was made on 30
September 2015, when the answering affidavit was
filed. Only
then was it stated under oath that a search had been conducted, that
the health establishment was not in possession
of any other documents
and that the applicant could not be provided with any further
documents. The answering affidavit does
not constitute
compliance with section 23 of PAIA though.
[37]
The officials of the Department disregarded the rights of the
applicants and those of her minor child and there was a
serious
dereliction of their statutory duties. It necessitated the
litigation the applicant had to embark on to enforce their
rights.
It would thus only be fair and just that the respondents should be
held responsible for the costs of the application.
I
make the following order:
1.
THE APPLICATION IS DISMISSED;
2.
THE RESPONDENTS, JOINTLY AND SEVERALLY, THE ONE PAYING THE OTHER TO
BE ABSOLVED, ARE ORDERED TO PAY THE COSTS
OF THE APPLICATION ON A
SCALE AS BETWEEN PARTY AND PARTY.
_________________
SL
ERASMUS
ACTING
JUDGE
NORTHERN
CAPE DIVISION
On
behalf of the Applicant
:
Adv Van Niekerk SC oio Elliott Maris Wilmans & Hay
On
behalf of the Respondents
:
Adv Manye oio the State Attorney (oio Mr. Phaswana)
[1]
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA); See also
MEADOW
GLEN HOME OWNERS ASSOCIATION AND OTHERS v TSHWANE CITY METROPOLITAN
MUNICIPALITY AND ANOTHER
2015
(2) SA 413
(SCA) at par [19]
[2]
FAKIE
supra
at par [10]
[3]
FRIPP v GIBBON & CO
1913
ad 354
[4]
1967(2) SA 589 (A) at 593