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[2014] ZAGPPHC 211
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Arwyp Medical Centre (Pty) Ltd v Minister of Health Services in His/Her Capacity as Head of the National Department of Health and Others (6210/2012) [2014] ZAGPPHC 211 (16 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: 6210/2012
Date
heard: 11 February 2014
Date
of judgment: 16 April 2014
Not
Reportable
Not
of interest to other judges
In
the matter between:
ARWYP
MEDICAL CENTRE (PTY)
LTD
......................................................................
Applicant
And
THE
MININSTER OF HEALTH SERVICES
IN
HIS/HER CAPACITY AS HEAD OF THE
NATIONAL
DEPARTMENT OF
HEALTH
........................................................
First Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL
IN
HIS/HER OFFICIAL CAPACITY AS HEAD OF THE
DEPARTMENT
OF HEALTH AND
SOCIAL
DEVELOPMENT,
GAUTENG
..........................................................
Second
Respondent
THE
DIRECTOR-GENERAL OF THE
NATIONAL
DEPARTMENT OF HEALTH IN
HIS/HER
OFFICIAL
CAPACITY
........................................................................
Third
Respondent
THE
HEAD OF THE DEPARTMENT OF HEALTH
AND
SOCIAL DEVELOPMENT IN HIS/HER OFFICIAL
CAPACITY
.............................................................................................................
Fourth
Respondent
THE
CHAIRPERSON: APPEAL ADVISORY
COMMITTEE
IN HIS/HER OFFICIAL CAPACITY
....................................
Fifth
Respondent
LEBONENG HOSPITAL
(PTY)
LTD
..............................................................
Sixth
Respondent
JUDGMENT
A.M.L.
PHATUDI J:
[1]
The applicant, a company with limited
liability, conducts z medical centre at 20 Pine Avenue, Kempton Park.
The applicant seeks
an order
‘
1.
Reviewing [and] setting aside the decision or decisions by the
Appeals Advisory Committee ... in terms of which the sixth
respondent’s
application to erect a private hospital or
unattached operating Theatre unit known as Leboneng Hospital
(Leboneng) was approved
(“the decision”)
2.
That the applicant be allowed an extension of the 180 days period
during which the applicant had to institute the review proceedings
in
terms of sectior 9(1 )(b) of the Promotion of Justice Act 3 of 2000
(PAJA) ...
,
[1]
[2]
The sixth respondent (Leboneng) was only
cited insofar as it may have had the interest in the application. No
order as to costs
was sought against Leboneng provided it did not
oppose the application. Leboneng is the only respondent that opposes
the application.
[3]
In short, Leboneng applied to the second
respondent for approval to erect a private hospital or unattached
operating theatre units
[2]
at Plot 697, Ravenswood Road, Boksburg.
[3]
The second respondent did not approve of its application. Leboneng
appealed against such decision. The appeal Advisory Committee
upheld
Leboneng’s appeal. On the 21 January 2010, Leboneng advised
that its application for 200 bed private hospital in Boksburg
was
successful. It is clear from the reading of Leboneng’s
answering affidavit
[4]
and the applicant’s replying affidavit
[5]
that the applicant engaged business relationship pertaining to the
hospital to be established in Boksburg. The said engagement
did not
bear any fruit.
[4]
Leboneng
raises the following two points in limine
[6]
which
are opposed.
4.1
That the applicant does not have locus
standi, in terms of PAJA, in that the applicant is not a person as
contemplated in PAJA
and is accordingly
not vested with a sufficient interest to obtain the relief sought;
and
4.2
That the application is fatally
defective as the applicant failed to comply with the provisions of
section 7 and 9(1) (b) of PAJA.
[5]
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.’
[6]
It is inevitable to state that the
applicant seeks to invoke the right to a just administrative action
entrenched by section 33
read with section 38 of the Constitution of
the Republic of South Africa (Constitution). For ease of reference,
section 33 of the
Constitution provides:
‘
(1)
Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
(2)
Everyone whose rights have been
adversely affected by administrative action has the right to be given
written reasons.
(3)
National legislation must be enacted to
give effect to these rights, and must
(a)
provide for the review of administrative
action by a court or, where appropriate, an independent and impartial
tribunal;
(b)
impose a duty on the state to give
effect to the rights in subsection (1) and (2); and
(c)
promote an efficient administration.’
Section
33 of the Constitution provides:
‘
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has
been infringed or threatened, and the court may grant appropriate
relief, including
a declaration of rights. The persons who may
approach a court are –
(a)
anyone acting in their own interest;
(b)
anyone acting on behalf of another
person who cannot act in their own name;
(c)
anyone acting as a member of, or in the
interest of, a group or class of persons;
(d)
anyone acting in the public interest;
and
(e)
an association acting in the interest of
its members.’
[7]
Leboneng’s
counsel submits that the applicant failed to demonstrate that it has
the necessary locus standi as an
“interested
person” referred to in section 6(1) of PAJA. He refers to Giant
Concerts CC v Rinaldo Investments (Pty)
Ltd
[7]
where, he submits, the court held that ‘the own-interest
litigant must therefore demonstrate that his or her interest or
potential interest are directly affected by the unlawfulness sought
to be impugned’
[8]
[8]
It
is common cause that the applicant is neither acting on behalf of
another person who cannot act in their own name
[9]
nor
as a member of, or in the interest of, a group of or class of
persons,
[10]
nor
in the public interest
[11]
nor an association acting in the interest of its members.
[12]
[9]
The
Constitutional Court
[13]
succinctly
considered what a litigant acting solely in his or her own interest
must demonstrate how his or her interests or potential
interests are
directly affected by the unlawfulness sought to be impugned.
[10]
The applicant submits that it is an
“affected person” as contemplated by PAJA in that they
conduct a medical centre
which is 20km away from the area where
Leboneng intends to erect the private hospital. The applicant further
submits that its medical
centre consist of 343 beds. The applicant’s
last submission is that they were never afforded the opportunity to
object or
make any representations in respect of Leboneng’s
application.
[11]
In my evaluation of the evidence
tendered and submissions made, I find the applicant’s
submissions lacking merit. First, the
applicant’s medical
centre and Leboneng are 20km apart. I find no merit that the
applicant will suffer prejudice in that
the parties will stop
patronising their medical centre for Leboneng. The applicant’s
medical centre is in Kempton Park whereas
Leboneng will be erected in
Boksburg
[12]
Secondly, the applicant engaged Leboneng
in establishing business relations pertaining to the hospital to be
established. This aspect
is not denied. The applicant launched, in my
view, this application upon failure by them to secure business
relations with Leboneng.
They simply seek to frustrate Leboneng’s
venture.
[13] The applicant
enjoys 343 bedded medical centre. The applicant fails to demonstrate
that Leboneng’s 200 bed private hospital
will adversely affect
their business. There is no application by the applicant lodged for
the increase of its medical centre beds.
Neither is there an
intention to lodge such application.
[14]
In view of the fact that the applicant failed to demonstrate
that their interest or potential interest are directly affected by
the granting of licence to Leboneng, leaves me with no option but, on
this leg alone, to dismiss the application for lack of
locus
standi.
[15]
It is trite that cost follow the event. The sixth respondent
succeeds with its opposition and is thus entitled to its costs. Both
parties employed senior counsel. The costs must thus include the cost
of senior counsel.
I
in the result, make the following order:
Order:
1.
The respondent’s point in limine on locus standi is upheld.
2.
The applicant’s application is dismissed with costs, including
the costs of senior counsel.
A.M.L.
Phatudi
Judge
of the High Court
On
Behalf of the Applicant: Bouwer Cardona Inc.
59 7th Avenue
Parktown North
C/O R Swaak Attorney
1244 Woodlands Drive
Queenswood
Pretoria
Adv. T. Strydom SC
On
Behalf of the 6th
Respondent:
Kuilman Mundell & Arlow
C/O Friedland Hart
Solomon &
Nicolson
Suite 301, Block 4
Monument Office Park
79 Steenbok Avenue
Pretoria
Adv. P. Daniels S
[1]
Notice of Motion, Bundle 1 – page 3
[2]
Founding Affidavit - paragraph 10 at page 12
[3]
Leboneng’s
application bundle 2 - page 100
[4]
Answering Affidavit - paragraph 14
[5]
Replying Affidavit - paragraph 15.1-15.5
[6]
Answering Affidavit - paragraph 12 - 30 - pages 236 - 242
[7]
Giant Concerts Cc v Rinaldo Investments (Pty) Ltd
[2012] ZACC 28
(CCT25/2012) (29 November 2012) unreported.
[8]
Ibid paragraph [43]
[9]
Section 38 (b) of Constitution
[10]
Section 38 (c) of Constitution
[11]
Section 38 (d) of Constitution
[12]
Section 38 (e) of Constitution
[13]
In Giant Concerts Cc v Rinaldo Investments (Pty) Ltd