Unitas Hospital v Van Wyk and Another (231/05) [2006] ZASCA 34; 2006 (4) SA 436 (SCA) ; [2006] 4 All SA 231 (SCA) (27 March 2006)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2006
>>
[2006] ZASCA 34
|

|

Unitas Hospital v Van Wyk and Another (231/05) [2006] ZASCA 34; 2006 (4) SA 436 (SCA) ; [2006] 4 All SA 231 (SCA) (27 March 2006)

Links to summary

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
REPORTABLE
Case number : 231/2005
In the
matter between :
UNITAS
HOSPITAL APPELLANT
and
MARIA MAGDALENA VAN WYK FIRST RESPONDENT
DR G
E NAUDÉ SECOND RESPONDENT
CORAM : HARMS, CAMERON, BRAND, CONRADIE
et
CLOETE JJA
HEARD : 23 FEBRUARY 2006
DELIVERED : 27 MARCH 2006
Summary
: Access to information – s 50 of
Promotion of Access to Information Act 2 of 2000
– meaning of
‘required’ for exercise of protection of right – when available
to compel pre-action production. (Order in para
27.)
Neutral citation: This judgment may be referred to as
Unitas Hospital v Van Wyk
[2006] SCA 32 (RSA)
JUDGMENT
BRAND JA
/
BRAND JA
:
[1] This appeal has its origin in an application by the
first respondent, Mrs van Wyk, against the appellant hospital
(‘Unitas’)
and the second respondent, Dr Naudé, under the
provisions of the Promotion of Access to Information Act 2 of 2000
(PAIA) in
the Pretoria High Court. The background to the application
appears from what follows. Unitas is a private hospital in Centurion.
On 3 July 2002, Mrs van Wyk’s late husband died while he was a
patient in Unitas. Mrs van Wyk contended that the death of her
husband
was brought about by the negligence of Unitas’s nursing
staff. She also believed, on the basis of expert evidence received,
that
she had an action against Unitas for the damages that she
suffered through her late husband’s demise. Her application for
access
to information was with a view to the institution of that
action.
[2] Dr Naudé is a specialist physician with rooms
at Unitas. He was one of the doctors who treated the deceased during
the
term of his admission. Apart from his private practice, Dr Naudé
served as director of the multi-intensive care unit (‘the
ICU’)
at Unitas. He was also the chairman of the body representing the
medical specialists practising at Unitas in their dealings
with the
hospital management. Acting in these last mentioned capacities, he
prepared a report on general nursing conditions in the
ICU and the
high care unit at Unitas. In the court
a quo
this report,
which had been finalised on 28 June 2002, was referred to as ‘the
Naudé report’. I propose to use the same
terminology.
[3] In terms of s 50 of PAIA, private bodies, such as
Unitas, and individuals in professional practice, such as Dr Naudé,
are
obliged to provide a ‘requester’ with recorded information in
their possession if the requirements of s 50 are met. Initially
Mrs
van Wyk’s application under the provisions of this section was for
access to a number of documents. However, as matters developed
on the
papers, the issues between the parties eventually turned solely on
whether she was entitled to a copy of the Naudé
report. While
Unitas opposed that application, Dr Naudé filed an answering
affidavit in which he indicated that he neither
opposed nor consented
to the order sought against him, but that he abided the decision of
the court. The court
a quo
(Mojapelo J) granted the
application against Unitas with costs. At the same time it gave what
was described as an ‘order by default’
against Dr Naudé.
In the event, both Unitas and Dr Naudé were ordered to provide
Mrs van Wyk with copies of the Naudé
report. This appeal,
which only relates to the order granted against Unitas, is with the
leave of this court.
[4] According to s 50 of PAIA a ‘requester’ is
entitled to the records – which, by definition, include any
recorded information
– in the possession of a private body if:
(a) the
information ‘is required for the exercise or protection of any
rights’;
(b) the
‘requester’ complies with the procedural requirements of PAIA
relating to a request for access to that information;
(c) access
to the information requested cannot be refused on any of the grounds
provided for in ss 62 to 70.
[5] One of the objections initially raised by Unitas was
that divulgence of the Naudé report would be contrary to s
63(1) of
PAIA in that it ‘would involve the unreasonable disclosure
of personal information about’ members of Unitas’s nursing staff
who were criticised in the report by name. The cause for this
objection was, however, removed when Mrs van Wyk conceded that the
copy of the report provided to her could be edited by blanking out
the name of any third party whose privacy would otherwise be
infringed
by disclosure. This concession was, incidentally, given
effect to in the order eventually granted by the court
a quo
.
In the result, Unitas no longer maintained that access to the Naudé
report would be contrary to any of the provisions of
ss 62 to 70. Nor
was it contended that Mrs van Wyk did not comply with any of the
procedural requirements of the Act. Unitas’s
remaining ground of
opposition was therefore that Mrs van Wyk had failed to establish
that she required the Naudé report for
the exercise or
protection of any right.
[6] A substantial part of the argument in this matter
had been devoted to the meaning of ‘required’ within the context
of s 50(1)(a).
I shall come to that. It seems plain, however, that
any attempt to determine its meaning in the abstract would be a
futile exercise.
Generally speaking, the question whether a
particular record is ‘required’ for the exercise or protection of
a particular right
is inextricably bound up with the facts of that
matter. Accordingly, I revert to the facts.
[7] Mrs van Wyk’s late husband suffered from Chrone’s
disease. He was admitted to Unitas on 6 May 2002 where he was
surgically
operated upon on 13 May 2002. After the operation he went
to the ICU. Three days later he was transferred to the high care unit
but,
because he subsequently developed an infection, he went back to
the ICU. From then on Mr van Wyk’s condition remained serious and
he essentially alternated between the ICU and the high care unit. On
1 June 2002, and while under care of nursing sisters, he suffered
an
attack of vomiting and aspirated. After that, he remained in the ICU
where he died on 3 July 2002.
[8] During his period of admission to Unitas, Mr van Wyk
was treated by various medical specialists, including Dr Naudé.
Mrs
van Wyk visited her husband every day. She was overtly critical
of the nursing staff and the conditions in the hospital – so much
so that at some stage she arranged for a representative of her
husband’s medical aid fund to visit and assess the treatment that
he was receiving. Her objections were pursued in a detailed letter of
complaint that she submitted to Unitas after the death of her
husband, as well as in a subsequent letter of demand written by her
attorneys on her behalf. In these two letters and in her founding
affidavit Mrs van Wyk repeated her general allegations that
conditions in the hospital were unhygienic and that the nursing staff
were incompetent, improperly trained, unsympathetic and
uncooperative. It is not clear, however, how these general
allegations are
linked to her late husband’s death. Her more
pertinent complaint related to the incident on 1 June 2002 when the
deceased suffered
an attack of vomiting and aspirated. According to
Mrs van Wyk this occurrence, which allegedly led to his death,
happened because
the deceased was given solid food to eat against the
instructions of his doctor, and was not properly supervised.
[9] In the letter of complaint, Mrs van Wyk informed
Unitas that she intended instituting action against it and that she
was assisted
in the formulation of her claim by seven medical
specialists. Six of these experts, including Dr Naudé, were
involved in the
treatment of her late husband during the period of
his admission to Unitas, while the seventh is a medico-legal expert
who is both
a qualified orthopaedic surgeon and an admitted advocate.
[10] With specific reference to the Naudé report,
Mrs van Wyk alleged in her founding affidavit that the report was the
product
of an investigation into nursing conditions at Unitas, which
was undertaken specifically as a result of her husband’s death.
These
observations obviously reflected her belief at the time. From
the answering affidavits it appeared, however, that that belief was
mistaken. According to both Unitas and Dr Naudé, the report
was completed prior to the death of the deceased on 28 June 2002
and
it was not motivated, as Mrs van Wyk thought, by the death of her
late husband, but because of what Dr Naudé described
as a
‘general disquiet with the quality and efficiency of the nursing
care in the ICU and high care unit of the hospital’. The
report was
the product of a survey in these two units over a period of six days
from 18 to 24 June 2002. The survey was undertaken
at Dr Naudé’s
initiative, but with the consent of the hospital management. It was
done by three ICU qualified sisters over
the six day period and was
intended as a general review of existing practices of nursing care in
the two units concerned. It included
an assessment of matters such as
inter-personal problems and personality differences at the level of
nursing management; and the
ability, training and remuneration of the
nursing staff. The report resulting from the survey offered an
assessment of the quality
of patient care, staff morale and
management issues in general. It contained no specific reference to
the treatment of the deceased.
Indeed, so both Unitas and Dr Naudé
stated, the name of the deceased is not even mentioned in the report.
The fact that the
survey was conducted during part of the period of
the deceased’s admission to the two units concerned, they said, was
purely coincidental.
[11] In her founding papers, Mrs van Wyk did not
specifically state that she required the Naudé report for the
exercise of
any right. What she said was that, without access to the
report, her right to claim damages from Unitas would be affected
(‘aangetas
word’). Maybe because of her belief that the report
was directly linked to the death of her husband, she did not
elaborate on what
benefit she thought she could derive from the
contents of the report. In their answering affidavits, both Unitas
and Dr Naudé
squarely raised the defence that Mrs van Wyk did
not ‘require’ the Naudé report for the exercise or
protection of any
rights, as contemplated by s 50 of PAIA. This is
so, they said, essentially because she already had access to whatever
information
her experts would require to advise her on the
formulation and the assessment of her claim.
[12] In motivating this defence, Unitas and Dr Naudé
pointed out, first, that because the report was of a general nature,
Mrs
van Wyk was mistaken in her belief that it had any specific
bearing on the treatment received by her husband; secondly, that it
had
been recorded by Mrs van Wyk in her letter of complaint that she
was assisted by seven medical specialists, including Dr Naudé
himself, who was the author of the report; thirdly, that, apart from
her own recorded observations regarding the treatment received
by her
late husband, Mrs van Wyk had already been provided with a complete
set of his hospital records, including the notes made
by the nurses
caring for him throughout his time in hospital, recording all their
observations as well as the treatment that he received.
Moreover,
they said, the medical experts advising Mrs van Wyk had access to all
the clinical notes and medical reports of the doctors
responsible for
his treatment. In these circumstances, Unitas stated, Mrs van Wyk had
‘
all
the information which her experts would require in order to advise
her’
while
Dr Naudé said:
‘
[T]he
applicant should be more than capable of procuring the relevant facts
pertaining to her husband’s hospitalisation from the
contemporaneous records which specifically relate to him’,
and
went even further by saying:
‘
[B]eyond
attempting to embarrass [Unitas], there is nothing to be gained
concerning the hospitalisation and treatment of [her] spouse
from the
report.’
[13] In reply, Mrs van Wyk did not deny any of these
specific allegations by the deponents to the answering affidavits.
Apart from
the general statement that she required the report for the
exercise and protection of her right to claim damages, she
essentially
said three things. First, that because the report related
to the general nursing conditions in the two units of the hospital
where
her husband had been treated and over part of the period during
which he received such treatment, it must, as a matter of inference,
be relevant to the question whether the nursing staff had been
negligent or not. Secondly, that if it is so that the disclosure of
the report would tend to embarrass Unitas, it could only be because
the general nursing care in the two units concerned had not been
up
to standard, a conclusion which would in turn support her case.
Thirdly, that the report would assist her in establishing whether
she
had reasonable prospects of success on the merits of the case.
[14] On these facts the court
a quo
found that
Mrs van Wyk had succeeded in substantiating her requirement of the
Naudé report for the exercise and protection
of her right to
claim damages. The nub of its reasoning in support of this finding
appears to be incorporated in the following quotations
from the
court’s judgment:
‘
[I]t
seems to me that having access to the Naudé report will assist
the applicant in either proceeding with or abandoning the
claim
against the first respondent. It is in the interest of
bona fide
litigation that the parties should take this critical decision on
the basis of essential information where such is available. In the
words of Cameron J [in
Van Niekerk v Pretoria City Council
1997 (3) SA 839
(T) 848G]:
“
Either
way, disclosure will promote an early settlement of the dispute and
bring the envisaged litigation, by settlement or abandonment,
to a
short, sharp end. In this sense, the applicant can in my view be said
reasonably to require the report.”
Such
is indeed the view I hold in the present case.’
And:
‘
While
the applicant may arguably be in possession of some information on
the basis of which she may issue summons against the first
respondent, there can be no doubt that the less the information she
has the higher the risk she runs of either formulating her claim
incorrectly or even of proceeding with the litigation when, with a
fuller picture, she might decide not to. . . . Another advantage
of
assessing information early is that, if indeed based on the available
information the applicant does not have a case against the
first
respondent, the applicant will be placed in the position to know this
early and therefore avoid unnecessary litigation. This,
as I
understand the position, is precisely part of the driving notion
behind the ideals of promoting access to information. Access
to
information must limit prejudice and encourage or facilitate early or
timeous resolution of disputes. It is a fitting philosophical
approach to dispute resolution in an open and democratic society.’
[15] In the course of its judgment the court
a quo
referred to a number of reported decisions in which attempts were
made to determine the meaning of ‘require’ in the context of
the
phrase ‘require for the exercise or protection of any right’.
Though most of these decisions were not concerned with s 50
of PAIA,
specifically, but with the identical phrase used in s 23 of the 1993
Constitution and in s 32 (read with Schedule 6) of
the 1996
Constitution, they obviously have a bearing on the understanding of
the same expression in s 50. It therefore comes
as no surprise
that essentially the same decisions were referred to in the judgment
of this court concerning the interpretation of
s 50, which was
delivered after the court
a quo
had given its
judgment,
in
Clutchco (Pty) Ltd v Davis
2005 (3) SA 486
(SCA) paras 11
and 12.
[16] Apparent from all the decisions referred to is the
reluctance of the courts involved to make any positive statements as
to what
the expression ‘require’ means. The inclination is rather
to define the expression in terms of what it does not mean. So, for
example, it is said that it does not mean the subjective attitude of
‘want’ or ‘desire’ on the part of the requester; that,
at the
one end of the scale, ‘useful’ or ‘relevant’ for the exercise
or protection of a right is not enough, but that, at
the other end of
the scale, the requester does not have to establish that the
information is ‘essential’ or ‘necessary’ for
the stated
purpose (see eg
Khala v Minister of Safety and Security
1994
(4) SA 218
(W) at 224G-225E;
Shabalala v Attorney-General,
Transvaal
1995 (1) SA 608
(T) at 624C;
Nortje v
Attorney-General, Cape
1995 (2) SA 460
(C) 474G). Closest to a
positive formulation is the one articulated as follows by Streicher
JA in
Cape Metropolitan Council v Metro Inspection Services
(Western Cape) CC
2001 (3) SA 1013
(SCA) para 28:
‘
Information can only be required for the exercise or
protection of a right if it will be of assistance in the exercise of
protection
of the right. It follows that, in order to make out a case
for access to information . . . an applicant has to state what the
right
is that he wishes to exercise or protect, what the information
is which is required and how that information would assist him in
exercising or protecting that right.’
[17] The threshold requirement of ‘assistance’ has
thus been established. If the requester cannot show that the
information will
be of assistance for the stated purpose, access to
that information will be denied. Self-evidently, however, mere
compliance with
the threshold requirement of ‘assistance’ will
not be enough. The acceptance of any notion to the contrary will,
after all, be
in conflict with the postulate that mere usefulness to
the requester will not suffice. In
Clutchco
this court was
reluctant to go any further than to confirm this threshold
requirement. That appears from the following statement by
Comrie AJA
immediately after he had referred to the above quoted
dictum
from
Cape Metropolitan Council
(in para 13):
‘
I
think that ‘reasonably required’ in the circumstances is about as
precise a formulation as can be achieved, provided that it
is
understood to connote a substantial advantage or an element of need.
It appears to me, with respect, that this interpretation
correctly
reflects the intention of the legislature in s 50(1)(a).’
[18] I respectfully share the reluctance of Comrie AJA
to venture a formulation of a positive, generally applicable
definition of
what ‘require’ means. The reason is obvious.
Potential applications of s 50 are countless. Any redefinition of the
term ‘require’
with the purpose of restricting its flexible
meaning will do more harm than good. To repeat the sentiment that I
expressed earlier:
the question whether the information sought in a
particular case can be said to be ‘required’ for the purpose of
protecting or
exercising the right concerned, can only be answered
with reference to the facts of that case having regard to the broad
parameters
laid down in the judgment of our courts, albeit, for the
most part, in a negative form.
[19] With regard to the facts of this case, it can be
accepted with confidence that Mrs van Wyk did not require the Naudé
report
to formulate her claim for the purposes of instituting an
action. What must also be accepted is that, once she has instituted
her
action and provided that the Naudé report turns out to be
relevant to the issues on the pleadings, Unitas will be obliged
to
make it available under the provisions for discovery in terms of
Uniform rule 35. From the provisions of s 7 of PAIA it is plain,
in
my view, that PAIA is not intended to have any impact on the
discovery procedure in civil cases. Once court proceedings between
the parties have commenced, the rules of discovery take over. In that
event, access to documents in possession of the litigating
parties is
governed by these rules. The provisions of PAIA no longer apply as
between the parties (see eg Ian Currie & Jonathan
Klaaren
The
Protection of Access to Information Act Commentary
, para 4-15 at
52-54. Cf also
Inkatha Freedom Party v Truth and Reconciliation
Commission
2000 (3) SA 119
(C)).
[20] The real issue is therefore, whether in the
circumstances of this case, s 50 afforded Mrs van Wyk a right to
what would
amount to pre-action discovery. The court
a quo
concluded that it did. According to the passages from the court’s
judgment quoted in para [14] above, its motivation for this
conclusion
was that the report could possibly assist her in
establishing the merits of her case, which would in turn enable her
to decide whether
she should embark on the risky venture of
litigation at all. What is more, it appears from these passages that
the court
a quo
was of the view that underlying considerations
such as avoidance of speculative litigation and early determination
of disputes would,
as a matter of course, entitle a requester to
information under s 50 if such information could possibly be of
assistance in establishing
the merits of his or her case. That is so,
the court held, because these underlying considerations would accord
with the ‘philosophical
approach to dispute resolution in an open
and democratic society’.
[21] I find myself in respectful disagreement with these
sentiments. I do not believe that open and democratic societies would
encourage
what is commonly referred to as ‘fishing expeditions’
which could well arise if s 50 is used to facilitate pre-action
discovery
as a general practice (see
Inkatha Freedom Party
(supra
137C). Nor do I believe that such a society would require a potential
defendant, as a general rule, to disclose his or her
whole case
before any action is launched. The deference shown by s 7 to the
rules of discovery is, in my view, not without reason.
These rules
have served us well for many years. They have their own built-in
measures of control to promote fairness and to avoid
abuse. Documents
are only discoverable if they are relevant to the litigation while
relevance is determined by the issues on the
pleadings. The deference
shown to discovery rules is a clear indication, I think, that the
legislature had no intention to allow
prospective litigants to avoid
these measures of control by compelling pre-action discovery under
s 50 as a matter of course.
[22] I hasten to add that I am not suggesting that
reliance on s 50 is automatically precluded merely because the
information sought
would eventually become accessible under the rules
of discovery, after proceedings have been launched. What I do say is
that pre-action
discovery under s 50 must remain the exception rather
than the rule; that it must only be available to a requester who has
shown
the ‘element of need’ or ‘substantial advantage’ of
access to the requested information, referred to in
Clutchco,
at the pre-action stage. An example of such a case is, in my view, to
be found in
Van Niekerk v Pretoria City Council
(supra), upon
which considerable reliance was placed by the court
a quo
(see
the quotation in para [14] above). The point is, however, that the
facts of that case were materially different. Van Niekerk
had
a report by experts who did not identify who was responsible for the
damage to his equipment (848C). The City Council, on the
other hand,
relied on a report which apparently exonerated it from responsibility
(848F-G). Quite understandably, in the circumstances,
Van Niekerk’s
allegation was that without the report relied upon by the City
Council, he was unable to establish whether it could
be held liable
(848H-I). Though I think it is legitimate to use s 50 to
identify the right defendant, I do not agree with the
court
a
quo
’s thesis that one is entitled, as a matter of course, to
all information which will assist in evaluating your prospects of
success
against the only potential defendant. On that approach, the
more you know the better you will be able to evaluate your chances
against
your opponent. The corollary of this thesis therefore seems
to be that the requester will in effect always be entitled to full
pre-action
discovery. The
dicta
by Cameron J in Van Niekerk
referred to by the court
a quo
(see para [14] above) cannot
legitimately be relied upon in support of its thesis.
[23] Mrs van Wyk is not in the same category as Van
Niekerk. On her own showing she had a number of alternate sources of
information
available to her as to what happened to her late husband
while he was in Unitas. In the circumstances, she should, in my view,
have
explained from the outset what more knowledge she hoped to
gather and what benefit she hoped to attain by gaining access to the
Naudé
report. No such allegation was, however, made in her
founding affidavit. But it goes further. In their answering
affidavits, both
Unitas and Dr Naudé made the positive
statements that she already had access to all the information her
experts needed to
advise her and that the Naudé report would
add nothing to her case. These statements were not denied in reply.
Even when Dr
Naudé said categorically that the only advantage
Mrs van Wyk could gain from his report would be to embarrass Unitas,
this
was not denied. Mrs van Wyk’s reply was that such
embarrassment could only result from sub-standard nursing which would
in turn
support her case. In my view, this is a
non sequitur.
From the nature of the survey that preceded the report, as it is
explained in the answering papers,
I can think of a number of
ways in which the report can embarrass the hospital without having
any bearing on Mrs van Wyk’s case
at all. Mrs van Wyk’s further
contention in reply, that, because the report resulted from a survey
in the units where her late
husband had been treated, it must be
inferred to be relevant, is clearly not enough.
[24] It is true, as was argued on behalf of Mrs van Wyk,
that she was at a disadvantage to show the relevance of the report
without
any knowledge of its contents. That, of course, would
normally be the position of any requester who seeks information to
which he
or she had no prior access. What makes this case somewhat
different is that Dr Naudé, who was the author of the report,
is
also one of Mrs van Wyk’s advisors. In fact, it is common cause
that, but for Unitas’s objection, he would have given her the
report at the outset. The question remains, however, why Dr Naudé
could not be asked to provide her with all the information
available
to him. To this question there is no answer on the papers. The mere
fact that some of this information might also be reflected
in the
report would not, in my view, make any difference.
[25] In the circumstances I conclude that Mrs van Wyk
had failed to substantiate her claim that the Naudé report
would be of
assistance to her in her case against Unitas. It follows
that she did not even meet the threshold test formulated in
Cape
Metropolitan Council
(see para [16] supra). The question whether
in addition she had shown the ‘element of need’ or the
‘substantial advantage’
suggested in
Clutchco
(see para
[17] supra), therefore does not even arise. Consequently I hold the
view that her application against Unitas should have
been dismissed.
[26] Lastly, an alternative argument was raised on
behalf of Mrs van Wyk which was really in the nature of a point
in
limine
based on s 21A of the Supreme Court Act 59 of 1959. In
essence it went as follows: Since Dr Naudé had already been
ordered
to provide Mrs van Wyk with the same report and since there
is no appeal against that order, the appeal by Unitas (in the words
of
s 21 A) could have no practical effect or result and should
therefore not be entertained. It appears, however, that thus far no
attempt
has been made on behalf of Mrs van Wyk to compel compliance
with the order against Dr Naudé. It therefore seems to have
been
accepted by everybody concerned, at least by implication, that
that order would follow the same fate as the one against Unitas. In
fact, the order against Dr Naudé was granted by the court
a
quo
on the basis that the order against Unitas was in any event
to ensue. In the circumstances, the refusal to hear Unitas’s appeal
merely because a similar order was technically enforceable against Dr
Naudé, would, in my view, be unjustified.
[27] The appeal is upheld with costs, including the
costs of two counsel. For the order by the court
a quo
there
is substituted the following:
‘
The application is dismissed with costs, including
the costs of two counsel.’
………………
..
F D J BRAND
JUDGE
OF APPEAL
CAMERON JA
:
[28] I have had the benefit of reading the judgment of
my colleague Brand JA, but regret that I cannot agree with it. We
differ in
our approach not only to the details of the case, but to
the principles that underlie it. The question is whether Mrs van Wyk
is
entitled to obtain from the hospital a physician’s report that
was compiled in the month before her husband died in the hospital
in
July 2002, and which dealt in general terms with the nursing
situation in its multi-intensive care unit and high care unit at
a
time when he was a patient in the multi-ICU.
[29] Mrs van Wyk acknowledges that she does not need the
report to get her damages claim against the hospital off the ground –
as
a matter of bare pleading, she can get by without it.
1
She may be entitled to receive it later, when pre-trial exchange of
documents takes place under the rules of discovery. But she
claims
it now, and she is entitled to it if she requires it for the exercise
or protection of her rights. In my view, for substantially
the
reasons set out in the judgment of Mojapelo J in the court below, she
does. I respectfully differ from my colleague’s conclusion
to the
contrary.
[30] The Promotion of Access to Information Act 2 of
2000 (PAIA) provides that access must be given to records held by
private bodies
if the document requested ‘is required for the
exercise or protection of any rights’ (s 50(1)(a)). The word
‘required’ originated
in the interim Constitution, under which
the right of access applied only against organs of state.
2
The Bill of Rights extended this right horizontally to ‘any
information that is held by another person and that is required for
the exercise or protection of any rights’.
3
The meaning of ‘required’ is neither clear nor precise, and
judges have grappled for more than a decade to give it a practical
content. As Brand JA explains, this court eventually settled on a
pragmatic formulation in
Clutchco (Pty) Ltd v Davis
:
4
a private body must yield a record it holds if the applicant can show
‘substantial advantage or an element of need’. But it
is
important to bear in mind that in adopting this standard
Clutchco
expressly rejected the notion that ‘required’ meant ‘necessity’
– still less ‘dire necessity’. Like the statute, the
standard
is accommodating, flexible and in its application necessarily
fact-bound.
[31] In applying the standard to any set of facts, we
must be faithful to the objects of PAIA and the constitutional
setting from
which it springs. In thus considering whether Mrs van
Wyk has demonstrated an element of need in relation to the report, or
has
shown that having it will give her a substantial advantage, I
differ from Brand JA in three respects. In summary:
(a) The nature of Mrs van Wyk’s need and the
substantial advantage the report will afford her
: It is in my
view too narrow to approach Mrs van Wyk’s PAIA entitlement by
focusing on whether she is capable of formulating a
damages claim
against the hospital. Her litigation against the hospital will
involve issues not only of individual conduct and responsibility.
It
will scrutinise how the hospital’s systems functioned, and whether
institutional procedures and protocols caused or permitted
actions by
individual members of staff. She is entitled to the report because
knowing what it says will afford her a significant
advantage in
relation to those questions.
(b) The
approach to private bodies under PAIA
:
Though the hospital is not a public body under PAIA, the statute
suggests that our approach to private bodies should not be
undifferentiated.
Some bodies are more private than others. The
hospital is a lot less private than the small family business in
Clutchco
. The declared objects of PAIA
5
suggest that where appropriate courts should encourage transparency,
accountability and effective governance in private institutions:
large private institutions that serve the public and, like the
hospital, perform vital public functions fall plainly within the
scope
of this statutory objective. The judgment of Brand JA in my
respectful view goes in the opposite direction.
(c) Pre-litigation
discovery
: In my respectful view the approach Brand JA propounds
is too cloistered. Pre-discovery disclosure is important and helpful
in
assisting a litigant – and thereby also the opponent – to
determine whether litigation should commence at all, or whether it
should proceed. PAIA recognises the importance of post-commencement
access procedures; but its novel dimension lies in the fact
that it
creates pre-commencement access. We should not stifle this.
Litigation involves massive costs, time, personnel, effort
and risks.
Where access to a document can assist in avoiding the initiation of
litigation, or opposition to it, the objects of the
statute suggest
that access should be granted.
The nature of Mrs van Wyk’s need and the
substantial advantage the report will afford her
[32] Mrs van Wyk thought that the report of Dr Naudé
dealt amongst other things with her husband’s care and treatment
while
he lay critically ill in the hospital. She was wrong. In his
answering affidavit, Dr Naudé explains that the survey was
conducted ‘purely coincidentally’ at the time when Mrs van Wyk’s
husband was in the hospital. It was not prompted by nor did
it
relate to ‘the nursing care which [Mrs van Wyk’s] spouse
specifically received’ at the hospital, and it does not refer to
him. Instead, by virtue of ‘general disquiet with the quality and
efficiency of the nursing care’ in the hospital’s multi-intensive
care unit and high care unit, Dr Naudé says he undertook ‘an
informal survey of the nursing care’ in these units in June
2002.
It was performed over a period of about six days and was conducted by
three intensive care unit trained sisters under his
supervision. It
included assessments of ‘a wide variety of aspects of nursing care
in the units’, and embraced, Dr Naudé
tells us –
(i) a
general review of the implementation of nursing protocols;
(ii) a
general review of the existing practices of nursing care;
(ii) an
assessment of the adequacy of staffing;
(iv) an assessment of inter-personal problems and
personality differences between nursing management and the unit
managers;
(v) an assessment of the appointment of nursing staff;
(vi) an assessment of the abilities of nursing staff
allocated to the wards in question;
(vii) an
assessment of the adequacy of continued nursing education of nursing
personnel;
(viii) an assessment of the adequacy of nursing staff
remuneration.
[33] The survey was intended, Dr Naudé says, ‘to
serve as a tool for achieving and maintaining high standards of
nursing
care in the units in question’. Rather than being
scientific and comprehensive, it was ‘an information survey and
report, aimed
at achieving and maintaining high standards of nursing
care’.
[34] Can Mrs van Wyk against this background be said to
require the report for the exercise and protection of her rights?
That depends
on how one approaches her claim. S he avers that the
hospital negligently caused her husband’s death. To institute
action to
vindicate that entitlement, all the rules of pleading
require her to do is to set out particulars of the individual act or
acts of
negligence she claims gave rise to her loss. But Mrs van
Wyk’s founding affidavit (which was drafted when she was still
considering
whether to institute action) explains her claim in far
broader terms:
6
‘
During the deceased’s long hospitalisation it was
clear that there were various problems at [the hospital]. There were
for example
extremely unhygienic conditions. It was also clear that
some of the personnel were not trained to manage the ward to which
they
were assigned. There were also insufficient personnel present
and there were often only unqualified and under-qualified personnel
on duty;
As a result of food that the deceased was given to eat
by [the hospital’s] personnel, against the express instructions of
the treating
doctors, and as a result of insufficient supervision in
the side-room of intensive care, where the deceased was being nursed
at that
stage, the deceased aspirated and later in consequence died.’
(My translation.)
[35] If one views this claim as encompassing only the
individual acts of negligence that the rules of pleading require her
to set
out in order to launch a viable action, it is possible to
conclude that Mrs van Wyk does not ‘require’ the Naudé
report
for the exercise and protection of her rights, and counsel for
the hospital urged us to find that that the test was whether she was
in a position to commence her action against the hospital without it.
But this is far too narrow. And in my view it is in any event
quite
wrong to view Mrs van Wyk’s claim as encompassing only isolated or
unconnected acts of negligence. She does not claim that
an
individual actor, negligent alone, caused her husband to die. What
she claims is that an institution – the hospital – failed
in its
functioning in ways that gave rise to the individual acts of
negligence that caused her husband to die. She claims that a
systemic, not individual, failure caused her loss.
[36] To view her claim as traversing only the individual
acts of negligence is to divorce those acts from the institutional
setting
that gave rise to them. It is to divorce them from the
systems that she alleges not only permitted them to occur, but whose
insufficiency
she claims lay at the heart of the individual acts of
sub-standard nursing that caused his death.
[37] Her founding affidavit’s statement of case
traverses much of the very ground that Dr Naudé says his
report covers (though
he explains that hygiene was not part of it).
So seen, it is clear that the report would have a material and direct
bearing on the
whole basis of her claim. My colleague Brand JA
concludes (para 23) that the report might embarrass the hospital
without having
any bearing on Mrs van Wyk’s case at all. I
respectfully differ. It seems to me that the report will illuminate
the core of Mrs
van Wyk’s claim, which is that an institution to
which she and her husband entrusted his health failed in its
essential functioning,
so causing his death and her loss. In this it
will assist her materially in both formulating and evaluating her
claim.
[38] While Dr Naudé’s report does not mention
her husband’s specific case or details, it is not hard to surmise,
from the
doctor’s exposition of its contents, that its every part
will bear on the background to and causes of the institutional and
systemic
failures she alleges were fatal – and which Dr Naudé
was monitoring in the very days before his death. Having the Naudé
report will therefore confer a substantial advantage on her. It will
set out for her the very protocols and practices that were
in place
while her husband lay mortally ill; the problems – both in
individual personality and in remuneration and training –
that she
claims contributed to the fatality; and the appointment procedures
and standards whose existence permitted the fatal failures
to occur.
It will cast light on the very organisational issues that led to the
malfunction that she claims caused her loss. By
doing so it will
enable her not only to particularise her claim, but to assess its
ambit and its viability.
[39] In my respectful view, Mrs van Wyk established the
requisite statutory element of need and is entitled to the report.
The approach to private bodies under PAIA: how
private is the hospital?
[40] Following the distinction Bill of Rights draws
between information held by the state and that held by other persons,
PAIA distinguishes
between public and private bodies, each of which
it defines. In the case of the former, there is a general right of
access. In
the case of the latter, access must be required for the
exercise or protection of rights. But, as Brand JA explains,
‘required’
is a flexible term, and its application must be
fact-bound. And in applying it to any particular case, we must in my
view consider
the extent to which it is appropriate in the case of
any private body to further the express statutory object of promoting
‘transparency,
accountability and effective governance’ in
private bodies. This statutory purpose suggests that it is
appropriate to differentiate
between different kinds of private
bodies. Some will be very private, like the small family enterprise
in
Clutchco
. Effective governance and accountability, while
important, will be of less public significance. Other entities, like
the listed
public companies that dominate the country’s economic
production and distribution, though not ‘public bodies’ under
PAIA, should
be treated as more amenable to the statutory purpose of
promoting transparency, accountability and effective governance.
[41] We have little on record about the hospital’s
corporate setting, control or ownership. What we do know from the
answering
affidavits is that is a health facility offering nursing
and other services to the general public, and that it does so as part
of
the Netcare group (which, it is well-known, has clinics
country-wide and is one of a very small number of publicly listed
corporations
that dominates the field of private healthcare
services). We also know that the range of doctors practising from
the hospital’s
premises is large enough to warrant the
establishment and functioning of a representative body called the
‘Hospital Board’, which
Dr Naudé chairs. We know finally
that the hospital has a substantial and diverse nursing complement,
for in response to Mrs
van Wyk’s access request it lists no fewer
than 36 nurses and managers whose confidentiality could have been
affected by the Naudé
report’s disclosure.
[42] The hospital is therefore a rather public private
body, and in dealing with Mrs van Wyk’s request for access to the
report
we are obliged to give effect to the objects of the statute.
These include, generally, the promotion of ‘transparency,
accountability
and effective governance of all public and private
bodies’. This provision seems to me very much to have in its focus
private
bodies like the hospital, which offers essential services to
the public, yet is subject to no direct public or political
accountability
in its conduct or governance. The statute enjoins us
to promote transparency and accountability and effective governance
in the
hospital, and in interpreting whether Mrs van Wyk requires the
report for the exercise and protection of her rights we should in
my
view be astute not to help it shroud its institutional weaknesses and
failures from pre-trial scrutiny.
Pre-litigation
discovery: the opportunity for beneficial change
[43] PAIA does not apply to records requested for
criminal or civil proceedings after the commencement of proceedings
where ‘the
production of or access to that record for the purpose
[of the proceedings] is provided for in any other law’ (s 7). The
effect
of this provision is that where an applicant/plaintiff is
entitled to obtain a document by discovery, the statute’s
provisions
do not apply. My colleague Brand JA does not suggest that
the provision precludes access simply because the information sought
will
eventually become accessible under the rules of discovery (para
22). But he cautions against letting pre-trial discovery become
the
rule rather than the exception, and he considers that Mojapelo J
erred in permitting Mrs van Wyk access to the Naudé report
on
the basis that it would assist her in evaluating her prospects of
success against the hospital.
[44] I respectfully differ from my colleague’s
approach. Like him, I do not consider that PAIA offers untrammelled
pre-action
disclosure. But I do not think that this is what Mojapelo
J had in mind, or what his order in favour of Mrs van Wyk portended.
In particular, I disagree distinctly with my colleague’s apparent
suggestion (para 21) that Mojapelo J’s approach, or recognising
Mrs
van Wyk’s claim, would be to license fishing expeditions. In my
view, Mrs van Wyk has established a clear and substantial
connection
between her claim against the hospital and the contents of the report
she seeks to see.
[45] What underlies our difference is a broader
question: the approach to the impact of the statute on the old order
of pleadings
and action. In my view, as Mojapelo J rightly
suggested, the statute affords an opportunity to broaden the approach
to pre-action
access. It does so on a basis that is flexible and
accommodating without threatening the boundless exposure against
which my colleague
warns. The key lies in a case-by-case application
of whether a litigant ‘requires’ a record.
[46] PAIA’s scheme is to afford access before
litigation, but then to withdraw its procedures after the
commencement of action.
This differs from other jurisdictions. In
England, for instance, the Freedom of Information Act of 2000 applies
only to ‘public
authorities’, and there is no pre-litigation
access under it to the records of private bodies. But the rules of
court promulgated
under the Supreme Court Act of 1981 permit
pre-action disclosure where there is a real prospect in principle
that this will be fair
to the parties if litigation is commenced, or
of assisting them to avoid litigation, or to avoid costs in any
event.
7
[47] In my view, it is a legitimate and beneficial
approach to the statute to apply it so that where a record will
assist a party
in evaluating a potential claim, this will count as
advantage or need for statutory purposes. This was what lay behind
the reasoning,
as opposed to the particular facts, in
van Niekerk
v Pretoria City Council
:
8
the objective of promoting early settlement of disputes by assisting
potential litigants to evaluate the viability of their claims
in the
light of the documentation sought. It was this spirit that Mojapelo
J endorsed in approaching the facts of this case, so
recognising Mrs
van Wyk’s entitlement.
[48] Institution of proceedings is an immense step. It
involves a massive commitment in costs, time, personnel and effort.
And it
is fraught with risks. Where access to a document can assist
in avoiding the initiation of litigation, or curtailing opposition
to
it, the objects of the statute suggest that access should be granted.
On this consideration, too, Mrs van Wyk is entitled the
report.
[49] I would therefore dismiss the appeal with costs.
E CAMERON
JUDGE
OF APPEAL
CLOETE JA:
[50] I have had the advantage of reading the judgments
of my brothers Brand and Cameron. I agree with the reasoning and
conclusion
in the former and wish to state the reasons why I cannot,
with respect, subscribe to the approach followed in the latter with
regard
either to the interpretation of PAIA or to the assessment of
Mrs van Wyk’s case.
[51] Under PAIA a requester either has a right to know
what is in a record or must demonstrate that the record is required.
The distinction
depends upon the nature of the body to which the
request is addressed. If it is a public body, s 11 applies and access
to a record
must be given if the procedural requirements have been
fulfilled and if access is not refused on a recognised ground of
refusal.
If it is a private body, s 50(1) imposes a further
requirement, namely, that the record is ‘required for the exercise
or protection
of any rights’. The answer to the question whether
the record is so required must be sought by having regard to the
position of
the requester; the answer does not depend in any way on
the classification of the body to which the request is addressed.
That classification
determines whether the question has to be asked,
not how it should be answered. Either a body is a public body or it
is a private
body as defined in the statute (or it is neither, in
which case the statute finds no application) and there is, with
respect, no
warrant for describing a body as a ‘rather public
private body’ nor is its size or the type of trade, business or
profession
in which it is engaged, relevant. The stated objectives of
the statute cannot be utilized selectively to erode the fundamental
distinction
which the provisions of the statute in terms establish. I
say selectively, because one of the objects of PAIA (set out in s
9(b)(i))
is to give effect to the constitutional right of access
subject to justifiable limitations, including limitations aimed at
the reasonable
protection of privacy and confidentiality.
Furthermore s 32(1) of the Constitution itself draws a clear
distinction between any
information held by the State and any
information that is held by another person.
[52] The information that Mrs van Wyk had, is set out in
para 12 of the judgment of my brother Brand. Some of that information
was
known to her personally; the rest had been provided to her or was
available to her. In particular, the author of the report, Dr Naude
himself, was assisting her. No attempt was made to controvert the
allegation made in the answering affidavit delivered by Unitas
that
Mrs van Wyk had all the information which her experts would require
in order to advise her. In the circumstances, I respectfully
agree
with the conclusion of my brother Brand that Mrs van Wyk has not even
established the threshold requirement that the report
would be of
assistance to her.
[53] I cannot, with respect, agree with the conclusion
reached by my brother Cameron that Mrs van Wyk has shown that she
would enjoy
a substantial (and I emphasise the word substantial)
advantage, consisting in her being able to particularise her claim
and assess
its ambit and its viability, if she were to be given
access to the report. She is unquestionably able to particularise her
claim.
The ambit of the claim she sought to pursue in this court
appears from the first paragraph of the heads of argument filed by
her
counsel, which reads (to the extent relevant for present
purposes):
‘
From enquiries she [ie Mrs van Wyk] had made and from
circumstances she had herself witnessed, [Mrs van Wyk] believes that
[Unitas]
may be liable to her in damages as her late husband’s
death was possibly caused by negligence on the part of [Unitas’]
staff
giving her a right to claim damages . . . This is the right
that [Mrs van Wyk] seeks to enforce . . . .’
In support of this allegation, counsel referred to the
following passage in Mrs van Wyk’s replying affidavit:
‘
Everything indicates that there was indeed negligence
on the part of the staff of [Unitas]’ (my translation).
As appears from those quotations, it was not argued that
it was Mrs van Wyk’s case that Unitas failed in its essential
functioning;
and Unitas has not had an opportunity to respond to an
application for access to the report on this basis. It was by no
means clear
from her founding affidavit what case she sought to make
out. But even if the passage relied upon by my brother Cameron for
the conclusion
to which he arrives can be interpreted as being the
foundation of her case, unless there is a suggestion (and there is
not) that
the report would establish a causal link between any
institutional failure of Unitas and her loss, she does not require
the report.
[54] So far as the viability of Mrs van Wyk’s claim is
concerned, she did say in her replying affidavit that she wanted to
investigate
the circumstances of her husband’s death carefully and
that she would not embark on litigation if Unitas or its staff were
not
negligent in causing her husband’s death. But there is no
suggestion whatever in the affidavits filed, it was not submitted in
argument and there is no reason to suppose that if Mrs van Wyk were
to be given access to the report she might not institute action
or
that Unitas might not oppose it. In other words, there will be no
‘short, sharp end’ to the envisaged litigation that Cameron
J
held would ensue if the report in
Van Niekerk v Pretoria City
Council
9
were to be disclosed. If access to a record such as the Naude report
would merely be relevant to or helpful in the evaluation of
a
potential claim, but without the prospect that the information (or
lack of it) in the record could be decisive, as is the present
case,
access under PAIA should in my view be denied. To suggest as my
brother Cameron does that access should be granted where it
‘can
assist’ in avoiding the initiation of litigation, or opposition to
it,
10
is in my respectful view to give insufficient weight both to the word
‘required’ in s 50(1) and to one of the objects in the
statute
set out in s 9(b)(i) ie the reasonable protection of privacy and
confidentiality.
11
[55] For so long as the adversarial system of litigation
forms part of our law, issues must be defined in the pleadings and
access
to documents must ordinarily be limited to discovery after the
pleadings have closed. PAIA provides a useful tool where pre-trial
discovery of a particular document or documents is required for the
exercise or protection of any rights; but the tool must be used
carefully with due regard to the facts of each case and the rights of
both sides. Resort to it should be the exception rather than
the
rule. In that way the rights of the defendant, who by definition is a
private body entitled to reasonable protection of privacy
and
commercial confidentiality, as well as the rights of the plaintiff,
who before the enactment of PAIA might not have been able
to exercise
or protect rights properly or adequately, will both be secured.
___________
T
D CLOETE
JUDGE
OF APPEAL
CONRADIE JA
:
[56] I have had the benefit of reading the judgments of
my brethren Cameron, Brand and Cloete. I agree with Brand JA that,
generally
speaking, whether a record is 'required' depends upon the
facts of the case in relation to which the question is being
considered.
[57] I therefore think it best not to stray beyond the
facts of this case as they appear from the papers. The facts appear
mainly,
not as one would have expected from the founding affidavit
which is nonchalantly terse, but from a statement submitted by the
plaintiff
to the defendant before the institution of action in
support of a demand for the payment of damages, a document that is
before us
because Unitas Hospital, the defendant, annexed it to its
answering affidavit.
[58] Mrs Van Wyk, the plaintiff, says in the statement
that her husband, the deceased, was given solid food to eat when on
doctor's
instructions he was to be fed no solids. That instruction, I
infer, had been given because of the deceased's suffering from nausea
and continual vomiting while he was being treated in the defendant's
high care unit after he had undergone a second operation to
excise
septic tissue in an infected proctocolostomy wound. While the
plaintiff remained with him (which she appears from her account
to
have done frequently and for extended periods) she could assist the
duty nurse in turning to one side the head of the deceased,
who was
lying flat on his back, so that he might vomit into a bowl: he was
unable to turn himself because of the operation wound.
[59] When the night sister came on duty on 1 June 2002
she remarked on the plaintiff's exhausted condition and suggested
that she
return home, promising that she would look after the
deceased well. Shortly after midnight the plaintiff was telephoned to
come to
the hospital promptly since the deceased had been admitted to
the intensive care unit in a critical condition.
[60] The deceased had aspirated which means that he had
drawn his own vomit into his lungs. The aspiration incident is
admitted by
the defendant. We also know that the plaintiff was given
the records relating to the nursing care given to the deceased before
she
launched her application.
[61] As a result of the aspiration the oxygen supply to
the deceased's brain was interrupted for sufficiently long to cause
brain
damage. That is why he was transferred to the intensive care
unit where he died about a month later. The plaintiff even annexes a
copy of a neurologist's report about the brain damage to her
statement. This clearly is what caused the deceased's death and she
knew it. There is no suggestion that there was an intervening cause
related to the care that the deceased received in the intensive
care
unit that accelerated his death or impeded his recovery. It would in
any event not matter: the legal cause of his death would
still be the
aspiration.
[62] The only issue in dispute appears to be whether the
aspiration was due to negligence on the part of the defendant's
staff. The
plaintiff is able to demonstrate by her own evidence and
presumably that contained in the nursing records as well as that of
her
medical experts that the deceased who was not be fed solids, who
was known to be subject to attacks of vomiting, who was lying flat
on
his back and could not move himself, choked to death in his own vomit
in the defendant's high care unit. If she were to do this,
she would
in my opinion be doing enough. The defendant would be faced with a
prima facie
case of negligent treatment. The plaintiff, it is
true, mentions in her founding affidavit that conditions were
unhygienic, that
some of the nurses were not properly trained and
that there was an inadequate personnel complement, but she makes no
attempt to link
these inadequacies to the death of the deceased and
with the facts presently at our disposal I do not see how she could.
[63] If the deceased was not given the care that his
condition demanded, it is from the plaintiff's perspective
unimportant that the
neglect to attend to him properly resulted from
an institutional shortcoming or some systemic failure. The underlying
cause for whatever
shortcoming there was in the nursing care would be
irrelevant to the plaintiff's cause of action and would not impact
upon her right
to sue for damages. It could not serve as an excuse
for negligence in the circumstances and would therefore not need to
be taken
into account by the plaintiff in assessing her chances of
success in the action or in deciding on the wisdom of compromising
her
claim.
[64] I agree with Brand and Cloete JJA that the Naudé
report, containing as it does, nothing about the deceased's treatment
or the cause of his death, would have been of no use to the plaintiff
in taking any necessary or prudent pre-trial decision. Since
she
could comfortably do without it, she cannot be said to have
'required' it within the meaning of that term (as interpreted by
this
court and others) for the exercise or protection of her right to
claim damages.
………………
J H CONRADIE
JUDGE
OF APPEAL
Harms JA concurs with Conradie
et
Cloete JJA
1
Because
of the three-year prescriptive time-bar Mrs van Wyk has in fact
already had to issue summons, but this is irrelevant since
the
question before us is whether she was entitled to the report when
she initiated these proceedings in February 2004.
2
Interim
Constitution s 23: ‘Every person shall have the right of access to
all information held by the state or any of its organs
at any level
of government in so far as such information is required for the
exercise or protection of any of his or her rights.’
3
Bill
of Rights s 32 (1): ‘Everyone has the right of access to – (a)
any information held by the state; and (b) any information
that is
held by another person and that is required for the exercise or
protection of any rights.’ PAIA was the product of s
32(2), which
required national legislation to give effect to this right, and
empowered the legislation to ‘provide for reasonable
measures to
alleviate the administrative and financial burden on the state’.
4
2005
(3) SA 486
(SCA) para 13.
5
PAIA
s 9: ‘The objects of this Act are – … (e) generally, to
promote transparency, accountability and effective governance
of all
public
and private
bodies’ (my emphasis).
6
In
my respectful view it is the applicant’s exposition of her case in
her founding affidavit, and not her preceding letter of
demand,
still less her counsel’s heads of argument, that should provide
the basis for assessing her entitlement to access.
7
See
Black v Sumitomo Corporation
[2001] EWCA Civ 1819
,
[2002] 1
WLR 1562
(CA).
8
1997
(3) SA 839
(T) 848G.
9
1997
(2) SA 839
(T).
10
See
also the
Van Niekerk
case at 848F-G.
11
It
is interesting to note that in
Black and others v Sumitomo Corp
and others
[2001] EWCA Civ 1819
,
[2002] 1 WLR 1562
(CA), the
case referred to by my colleague Cameron JA, the English Court of
Appeal, in interpreting a rule of court which provided
that a court
may make an order for disclosure before proceedings have started
only where (inter alia) such disclosure ‘is desirable
in order to
. . . assist the dispute to be resolved without proceedings,’ held
(in para 81) that for jurisdictional purposes
the word ‘desirable’
should be construed as meaning ‘a real prospect in principle’.