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[2014] ZAGPPHC 110
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Mudau v MEC for Health And Welfare Limpopo Province and Another (3206l/09) [2014] ZAGPPHC 110 (14 March 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG,
PRETORIA)
CASE
N0:3206l/09
DATE:
14 MARCH 2014
In the matter
between:
KHAMUSI SYDNEY
MUDAU
...............................................................
Applicant
And
MEC FOR HEALTH
AND WELFARE
........................................
1st
Respondent
LIMPOPO PROVINCE
THE HEAD:
DEPARTMENT OF HEALTH
................................
2nd
Respondent
AND WELFARE,
LIMPOPO PROVINCE
JUDGMENT
MURPHY J
1. The applicant, a
medical doctor conducting a medical practice in Thohoyandou, Limpopo
seeks an order in the following terms:
“That the
administrative action taken by the Second Respondent in failing to
grant the Applicant approval in principle to
establish a private
hospital in Thohoyandou, Limpopo Province, be reviewed and set
aside.”
2. The first
respondent is the MEC for Health and Welfare, Limpopo (“the
MEC”) and the second respondent is the Head:
Department of
Health and Welfare (“the HOD”).
3. In addition to
reviewing and setting aside the administrative action, the applicant
seeks an order substituting the administrative
action with an order
of the court granting the applicant approval in principle to plan,
erect and operate a private hospital in
Thohoyandou.
4. Section 44(1 )(a)
of the Health Act 63 of 1977 (“the Act”) provides that
the Minister of Health may make regulations
regulating, restricting
or prohibiting the establishment of private hospitals where nursing
is carried on for the benefit of patients
accommodated therein and
where fees are charged in respect of nursing services rendered to
such patients or where contributions
are made by such patients
towards the cost of nursing services.
5. The relevant
regulations (GNR 158 Govt Gazette 6832 of 1 February 1980) lay down a
procedure to be followed to obtain approval
to establish a private
hospital. In terms of Regulation 7(2)(i) a person intending to
establish a private hospital is requested
to obtain permission in
principle to establish it. If permission in principle is granted, the
applicant is then required in terms
of Regulation 7(2)(ii) to submit
the plans for the hospital for approval. Upon approval of the plans,
the private hospital must
be registered and a certificate of
registration issued - Regulation 2. Since 1998 the power to grant
permission to establish a
private hospital, previously a national
function, has vested in the relevant provincial HOD. The remedy
sought by the applicant
is an order by the court substituting the
administrative action of the HOD with a grant of approval in
principle as contemplated
in Regulation 7(2)(i).
6. More than 12
years ago, on 16 October 2001, the Department of Health and Welfare,
Limpopo, published a notice in the Sowetan
newspaper inviting
applications for licences to establish private hospitals in the
province. The closing date for submission of
applications was 31
October 2001.
7. On 29 October
2001 the applicant submitted an application for approval. The
application signed by the applicant and dated 25
October 2001 is
annexed as Annexure KM1 to the founding affidavit.
8. There is a
dispute of fact regarding what happened to that application. The HOD
maintains that a decision was taken by the Department
during the
latter part of 2001 or early 2002 to refuse the applicant’s
application to erect or expand a private hospital
and that the
decision was communicated to him in writing at that time. On account
of the lapse of time, the HOD is unable to locate
the relevant
correspondence. However, Dr Morwamphakga Nkadimeng, the Senior
General Manager: Health Care Services in the Department
has averred
in the answering affidavit that she has personally informed the
applicant of the refusal in numerous meetings with
him since 2002.
9. It is common
cause that the applicant has been running a maternity facility as
part of his practice since 1996 before making
the application in
2001. The premises were inspected in 1998 and again in 2000, and were
found to be below standard. Attempts to
get the applicant to desist
from rendering maternity services have not been successful. It is the
view of the Department that the
applicant is running an unlawful
facility. The applicant admits that he does provide maternity
services at his practice but denies
that he is unlawfully running a
private hospital because the patients only pay fees for the delivery
and do not pay fees for accommodation,
meals and nursing.
10. The applicant
claims that in July 2004, almost three years after he made the
application in respect of which he now seeks relief,
he submitted
further documents in support of the application. He attaches a letter
from his attorneys (Annexure KM5) dated 30 July
2004. The letter is
headed: “Application Hospital Licence, Tshisaulu Day Care
Centre and Maternity Home”. The letter
refers to an attached
petition with 1089 signatures “requesting the approval and
establishment of a private maternity ward
with operating theatres in
that area”. The applicant states that further letters were sent
but that “no response was
forthcoming to my application for
permission to establish a private hospital”.
11. On 15 June 2005
the applicant’s attorneys addressed a letter (Annexure KM8 to
the replying affidavit) to the Department
referring to earlier
correspondence of 2004 indicating that they had not received a reply
in the course of the intervening year.
They accordingly issued a
demand on behalf of the applicant in the following terms:
“Should we not
receive your reply thereto within 14 (fourteen) days from the receipt
of this letter, we would be forced to
take our recourse to the
court.”
According to the
applicant there was no response to this letter. The HOD, however, has
annexed to her founding affidavit a letter,
Annexure J, dated 4
November 2005, addressed to the applicants’ attorneys, in which
it is stated that reasons were furnished
to the applicant during an
on site inspection of his premises. Moreover, as set out more fully
below, Dr Nkadimeng also wrote to
the applicant in September 2003
advising him that he was not entitled to operate a maternity home
without a licence and that he
had been informed as much.
12. It appears from
both the founding and replying affidavits that the applicant took no
further action in relation to his application
during the next three
years until his attorney addressed a letter (Annexure KM6 to the
founding affidavit) dated 10 September 2008
to the MEC in which it
stated inter alia\
“On 12 May
2004 (by way of supplementary documentation furnished pursuant to an
application initially having been submitted
during 2001) our client
applied for the registration of the Tshisaulu Maternity and Day Care
Centre as a private hospital
Notwithstanding that
the proposed maternity home meets the criteria our client has to date
not been advised of the decision regarding
his application ....
We are accordingly
instructed (as we hereby do) to demand that the Department ....
furnish a decision regarding our client's application
within 30
(thirty) days of date hereof. In the event of no decision in this
regard being forthcoming within such period, we are
instructed to
approach the High Court for appropriate relief (by way of seeking an
order of mandamus, alternatively for the review
of administrative
action due to the failure on the part of the Department to take a
decision regarding our client’s application).”
13. The letter of 10
September 2008 concluded with a request that in the event of the
Department not granting the applicant “a
licence to establish a
private hospital”, that he be informed of the reasons for any
intended decision and that he be afforded
procedural fairness in the
form of an opportunity to address any concerns the Department may
have regarding his application.
14. The MEC did not
respond to the letter of 10 September 2008.
15. Notwithstanding
the lapse of the 30 day period mentioned in the letter of 10
September 2008, the applicant did not approach
the court to make good
on his threat to seek a mandamus. Instead, on 17 November 2008, the
applicant’s attorneys addressed
another letter referring to the
application made in October 2001 and the earlier correspondence with
regard to it, and stated that
“the failure by the Department to
furnish a decision with regard to our client’s application to
establish a private
hospital constitutes administrative action”
and then demanded written reasons for the administrative action
within 90 days
in terms of section 5 of the Promotion of
Administrative Justice Act 3 of 2000 (“PAJA”). The
Department failed to furnish
the requested reasons.
16. The applicant
served this application for review on the HOD on 29 June 2009. The
applicant contends that the Department has
no good reason to refuse
his application and makes out a case, with reference to the perceived
need for a maternity facility and
the public interest, justifying the
grant of approval in principle on grounds of rationality.
17. The HOD filed
its answering affidavit only one year later on 14 May 2010 without
furnishing any explanation for its non-compliance
with the rules. Her
case may be summarized briefly as follows. The application for
approval was considered and refused in late
2001 or early 2002 and
the decision was communicated to the applicant. The applicant has
continued to run an unlawful maternity
home since 1996 which does not
meet the relevant standards. As a result of the refusal of the
application for approval in principle
to erect or expand a private
hospital the applicant made application on 16 August 2003 for a
licence to operate a sub-acute facility
at his premises. A further
inspection was conducted on 24 April 2003 which resulted in a finding
that the premises were substandard
and ultimately this application
too was refused.
18. The applicant’s
letter of 16 April 2003 seeking permission to run a sub¬acute
facility reads:
‘‘I
hereby wish to request your department to issue me with a licence for
sub-acute facility for Tshisaulu Maternity
home for the time being.
This facility may be reviewed later on.” (emphasis supplied)
19. On 29 May 2003
Dr Nkadimeng addressed the following letter to the applicant:
“
APPLICATION
FOR SUB ACCUTE FACILITY
Following an
Inspection Team report, after visiting your premises to evaluate the
premises’ degree of compliance with relevant
legislation to
operate as a Sub Acute Facility, I regret to inform you that your
premises do not meet the requirements of the legistlation.
Tshisaulu Maternity
Home can thus not be granted permission to operate as a Sub Acute
facility.
I have no doubt that
the Team would have explained and pointed out the shortfalls. If this
was not the case, I will be glad to forward
you a copy of the report
to you as soon as possible."
20. According to Dr
Nkadiment, she learnt in September 2003 that the applicant was
continuing to operate a maternity home. She accordingly
addressed
another letter to him on 10 September 2003 which reads:
RE: SUBACUTE
FACILITY
This office would
like to remind you that you were made aware of the fact that
maternity servies cannot be classified as sub-acute
care.
You were further
made aware of the fact that you were operating a maternity home
without a license in contravention of Regulation
158 of Health Act of
1978.
Please ensure that
you comply with the laws of the country to avoid legal steps being
taken against you.”
21. The applicant
admits receiving this correspondence but seeks to draw a distinction
between his application for approval in principle
submitted in
October 2001 and his application for permission to operate a
sub¬acute facility. With reference to the correspondence
sent on
his behalf by his attorneys in 2004, 2005 and 2008 he persists with
his contention that the Department failed to take a
decision on the
2001 application for approval in principle to establish a private
hospital submitted to the Department.
22. Section 6(1) of
PAJA provides that any person may institute proceedings in a court or
a tribunal for the judicial review of
an administrative action.
“Administrative action” is defined in section 1 of PAJA
to include “any failure to
take a decision” by an organ
of state; while the term “decision” is defined to include
any decision “required
to be made” under an empowering
provision, which includes a statute. The word “failure”
is defined in relation
to the taking of a decision to include a
refusal to take a decision. In terms of section 6(2)(g) of PAJA, a
court has the power
to judicially review an administrative action if
the action consists of a failure to take a decision.
23. As mentioned,
the HOD denies that the Department failed to take a decision with
respect to the application for approval in principle
submitted by the
applicant in October 2001. On the basis that it took a decision, it
averred in paragraph 21.7 of the answering
affidavit that the
applicant had delayed unreasonably in instituting proceedings for
judicial review. Section 7 of PAJA provides
that any proceedings for
judicial review in terms of section 6(1) must be instituted without
unreasonable delay and not later than
180 days after the date on
which any proceedings instituted in terms of internal remedies have
been concluded or on which the person
concerned was informed of the
administrative action, became aware of the action and the reasons for
it, or might
reasonably have been expected to have become aware of the action and
the reasons. Absent an agreement between the parties,
a court may
extend the 180 day period in section 7(1) where the interests of
justice so require - section 9 of PAJA. The HOD submitted
in
paragraph 21.7.3 of the answering affidavit that an unreasonable
period of approximately nine years had lapsed after the decision
to
refuse the application was made and communicated to the applicant,
and that the application should be dismissed for that reason.
24. The delay rule
has been part of our administrative law since before the enactment of
PAJA. The discretionary remedy to review
and set aside administrative
action may be refused by a court if it is of the view that an
applicant delayed too long in bringing
the application. Under PAJA an
applicant may not delay longer than 180 days after domestic remedies
are exhausted, or where there
are no domestic remedies, after the
applicant acquires knowledge (actual or constructive) of the
decision, unless the interests
of justice permit condonation of the
delay. The judicial discretion to apply the delay rule helps to
ensure that finality is achieved
in administrative matters; and
finality is important not only because delay may cause prejudice to
the respondent but also because
of the public interest in certainty -
Hoexter: Administrative Law in South Africa (2nd Ed) 532; and
Wolgroeiers Afslaers (Edms)
Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13
(A) at 41E-F.
25. The applicant’s
reply in paragraph 7.7 of the replying affidavit to the allegation of
unreasonable delay is sparse and
offers little explanation for the
lull in instituting proceedings. It reads:
“7.7 In terms
of section 7(1 )(a) and (b) of PAJA, an applicant is required to
institute proceedings for judicial review not
later than 180 days
after finalization of any internal remedy or, where no such internal
remedy exists, after he or she has become
aware of the decision
sought to be reviewed and the reasons thereof. Prior to the
institution of this application by me for the
review of the
administrative action taken by the Head of Department (the Second
Respondent), I was not aware of any decision on
the part of the
Second Respondent refusing approval in principle that I establish a
private hospital (much less, of the reasons
for any such decision).
In any event, insofar as may be necessary, it is respectfully prayed
that the Honourable Court extend the
period of 180 days provided for
in section 7 of PAJA, in terms of section 9(1 )(b) and (2) thereof.
What is notable is
that the prayer for an extension of the 180 day period is not
supported by any facts or allegations from which
it may be inferred
that it would be in the interests of justice to extend the period.
26. The indications
are that a decision refusing the application was taken and
communicated to the applicant in 2002, particularly
when one has
regard to the letters sent by the Department in May and September
2003. Nonetheless, I am prepared to assume for the
purposes of
determining the question of unreasonable delay that no decision was
in fact taken or communicated and to adjudicate
the issue on the
basis that the administrative action consists of a failure to take a
decision and is reviewable in terms of section
6(2)(g) of PAJA.
27. According to
section 6(3)(a) of PAJA if any person relies on the ground of review
referred to in section 6(2)(g) and the relevant
law (as in this case)
does not prescribe a period within which the administrator is
required to take that decision, and the administrator
has failed to
take the decision it is duty bound to take, that person may institute
proceedings for review on the ground that there
has been unreasonable
delay in taking the decision. And in terms of section 8(2) of PAJA he
or she may seek an order directing
the taking of the decision; or a
declaration of rights in relation to the taking of the decision; an
interdict aimed at doing justice
between the parties. This
legislative scheme is constructed on the recognition that a court
faced with a failure to take a decision
will not be in a position to
assess the merits on the basis of rationality or reasonableness,
because no decision will exist which
can be subjected to scrutiny and
review on those grounds.
28. Returning to the
delay rule: where the complaint is a failure to take a decision the
period of unreasonable delay usually will
not be measurable from the
date internal remedies are exhausted, or the date on which the person
was informed or became aware of
the action as contemplated in section
7(1) of PAJA. Absent an actual decision there
is nothing of which
the person could be informed or any positive action of which he might
become aware. A failure to take a decision
nonetheless still
constitutes administrative action as defined. It is moreover possible
for a person to become aware of such a
failure and to identify a
point in time when a person “might reasonably have been
expected to have become aware” of
administrative action, in the
form of a failure to take a decision, as contemplated in section 7(1
)(b) of PAJA. In other words,
it is possible for a person to have
either actual or constructive knowledge of a failure to take a
decision at a certain point
in time and for the period of delay to be
calculated from that time. Where the court is not able to pinpoint a
moment of actual
or constructive knowledge of the failure, it will be
obliged, in terms of the common law, to enquire whether in the light
of all
the circumstances the application may be considered to have
been brought within a reasonable time.
29. If I were to
accept the version of the respondent that the applicant was informed
of the refusal of his application in late
2001 or early 2002 there
can be no doubt whatsoever that there has been an unreasonable delay
and that the application was brought
beyond the 180 day period. The
application, on these facts, would be about 8 years late.
30. On the basis
that no decision was taken, the question to be answered is when might
the applicant “reasonably have been
expected to have become
aware” of the failure by the Department to take a decision. The
history of the matter indicates that
a reasonable person in the
position of the applicant would have become aware of the failure at
various points in the almost nine
year period between the submission
of the application for approval in October 2001 and the delivering of
the application for review
in June 2009. The correspondence addressed
to him by Dr Nkadimeng to the applicant in May and September 2003
should have left him
under no illusion that his application would not
succeed and that any ensuing silence or inertia on the part of the
Department
could and should have been construed as a failure to take
a decision. And if that is not enough to infer knowledge on his part,
then the response of the Department in November 2005, Annexure J, to
the demand of the applicant’s attorneys for a decision
(Annexure KM8), could have left him in little doubt that either there
had been a negative decision or a failure to take a decision.
And
finally, taking the most generous possible interpretation of the
facts, the applicant was undoubtedly aware of the administrative
action in 2008. The letter of the applicant’s new attorneys
dated 10 September 2008 (Annexure KM6) stated unequivocally that
the
applicant held the view that there had been a failure to take a
decision and threatened to bring an application for judicial
review
or a mandamus within 30 days; something, for reasons which have not
been explained, he failed to do.
31. Hence,
regardless of whether one accepts May 2003, September 2003, June
2005, November 2005 or September 2008 as the date
upon which the
applicant was in fact aware or might reasonably have been expected to
be aware of the failure of the Department to
take a decision
(assuming there was a failure to decide), the applicant instituted
proceedings for judicial review later than the
180 day period set
down in section 7(1) of PAJA. It was therefore incumbent upon the
applicant to make an application for an extension
of the period in
terms of section 9(1) of PAJA and to adduce evidence to show that an
extension would be in the “interests
of justice”, as
required in terms of section 9(2) of PAJA.
32. In Camps Bay
Ratepayers’ and Residents’ Association v Harrison
[2010]
2 All SA 519
(SCA) the Supreme Court of Appeal held that whether the
interests of justice require the grant of such extension depends on
the
facts and circumstances of each case. The party seeking it must
furnish a full and reasonable explanation for the delay which covers
the entire duration thereof and relevant factors including the nature
of the relief sought, the extent and cause of the delay,
its effect
on the administration of justice and other litigants, the importance
of the issues to be raised in the intended proceedings
and the
prospects of success.
33. Beyond what he
stated in paragraph 7.7 of the replying affidavit as set out in full
above, the applicant has made out no case
whatsoever either in the
founding affidavit or the replying affidavit explaining the delay.
Accepting the later date of September
2008 as the relevant date, no
explanation has been
proferred for why the applicant did not stay good to his promise to
seek a mandamus if a decision was not forthcoming
within 30 days. It
is evident that the applicant at that time was aware of the
possibility of bringing a review in terms of section
6(2)(g) read
with section 6(3) of PAJA. No facts have been put forward justifying
the delay after or before that date. But even
if I were to attempt to
glean facts favourable to the applicant from other averments in the
affidavits, the history of the matter,
the duration of the dispute
for almost a decade and the consequent truth that the application is
now predicated upon information
which is 12 years old, are all
compelling factors which support a finding that it will not be in the
interests of justice to extend
the 180 day period. Moreover, there is
no explanation for the delay, or even any discussion of any facts,
events or interaction
between the parties after 2005 when it became
abundantly clear that the Department refused permission for the
facility to be categorized
as a sub-acute facility. The applicant
waited 3 years before appointing his new attorney, who sought to
revive the issue by relying
on the 2001 application. The affidavits
give no insight into what transpired between the parties in the
period between 2005 and
2008. The applicant would have done better by
submitting a fresh application based on current information which
takes account of
the Department’s concerns about the
sub-standard nature of his facility. His prospects of success in
obtaining an order from
the court granting him approval in principle
on such outdated information are nil.
34. In light of my
finding it is not necessary to consider the other point in limine
that the applicant failed to exhaust the internal
statutory remedies
before instituting proceedings.
35. For the stated
reasons, the application is dismissed with costs.
JR MURPHY
JUDGE OF THE HIGH
COURT
Representation
for the Applicant:
Counsel: Adv TWG
Bester
Instructed by
Attorneys: Mathivha Attorneys
Representation
for respondents:
Counsel: Adv R
Bedhesi SC
Adv M
Mokadikoa-Chauke Instructed by Attorneys: State Attorney, Pretoria
Date Heard: 26
February 2014