About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2012
>>
[2012] ZAECMHC 6
|
|
Hlaba v MEC for Health, Eastern Cape Province and Another (1153/11) [2012] ZAECMHC 6; 2012 (4) SA 401 (ECM) (16 March 2012)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE HIGH COURT: MTHATHA
CASE NO: 1153/11
Heard on: 15/03/12
Delivered on: 16/03/12
In the matter between:
ZANDILE MONICA HLABA
…............................................................
Applicant
and
MEC FOR HEALTH, EASTERN CAPE
PROVINCE
….................................................................................
1
st
Respondent
THE MEDICAL SUPERINTENDENT,
BUTTERWORTH HOSPITAL
…..................................................
2
nd
Respondent
_____________________________________________________________
JUDGMENT
____________________________________________________________
NHLANGULELA J:
[1] In my understanding of the papers filed of the
record, the applicant seeks a relief which I paraphrase in the
following terms:
(a) That the applicant be exempted from exhausting
internal appeal remedies which are provided for in s 75 of the
Promotion Of Access
To Information Act No. 2 of 2000 (PAIA); and
(b) That the respondents show cause why the second
respondent’s failure to complete the MMF 1 Claim Form of the
applicant
should not be declared unlawful; and
(c) That the second respondent should show cause why it
should not be ordered to complete the aforesaid form within 30 days;
and
(d) That, if the respondents refuse to complete the
form, to furnish the applicant with written and full reasons for
refusal within
30 days.
(e) That the respondents pay costs of the application on
a scale as between attorney and client.
[2] The relief sought is opposed by the respondents by
way of filing an answering affidavit and heads of argument.
[3] Some few days before the respondents filed an
answering affidavit they delivered the MMF 1 Claim Form, duly
completed and signed,
as asked for by the applicant. In essence, the
merits
of the application have been settled. The only issue
for determination is one of costs.
[4] To decide the question of costs the Court should
have regard to the acknowledgement of the respondents that they had a
duty
to complete the MMF 1 Claim Form, the reasons for which the
applicant brought the application, the conduct of the parties prior
to and after the application was brought, the legal objection which
the respondents raised in the answering affidavit against the
granting of the relief sought and any other factors which are
relevant to the decision to be made. It is so because all that the
Court is being asked to do is to allocate the costs without so much
being concerned as to who between the parties would have been
successful had the MMF 1 Claim Form (the claim form) not been
completed and furnished to the applicant. In this regard see the
judgment of Mbenenge AJ, as he was then, in the case of
Nxumalo
And Another v Mavundla And Another
2000 (4) SA 349
(D) at 355F
and that of mine in
Westensee v Westensee And Others
(ECG)
Case No. 859/09 dated 28 April 2011.
[5] The facts of this case are, to a large extent, not
in dispute. On 17 May 2009 the applicant was involved in a motor
vehicle
accident on a public road. Immediately after the accident he
was admitted in Butterworth Provincial Hospital (the hospital) for
treatment. He remained there for a considerable period of time whilst
he was receiving treatment for serious bodily injuries sustained
in
the accident. He was ultimately discharged to recuperate whilst being
at home. The remaining history about his injuries and
treatment for
such injuries are not relevant here.
[6] On 14 April 2010 the applicant, duly assisted by his
attorneys of record, addressed an application to the hospital asking
for
the claim form to be completed with medical information extracted
from the records of the applicant, sign it and return it so that
a
claim for compensation under the auspices of the
Road Accident Fund
Act No. 56 of 1996
could be lodged. There was no response to that
letter. On 11 January 2011 a second letter of application was
forwarded to the hospital
and a response was still not forthcoming.
On 23 March 2011 the applicant again addressed a letter of
application to the hospital,
but in vain. Seeing that the lodgment of
a claim with the Road Accident Fund was about to become prescribed,
the applicant resorted
to bringing this application for a
mandamus
on 19 May 2011. It would appear that it took approximately 14 months
of waiting time for the application to be brought. It was
only on 14
September 2011 that the respondents filed an answering affidavit.
[7] The provisions of the Road Accident Fund Act No. 56
of 1996, (the Fund Act) National Health Act No. 61 of 2003 (the NHA)
the
PAIA, the Promotion of Administration Justice Act No 3 of 2000
(the PAJA), the Constitution Act No. 108 of 2006 and the
State
Liability Act No. 20 of 1957
are implicated in this application. The
applicant alleges that in terms of
s 2
of Act No. 20 of 1957 the
first respondent is accountable for the administrative acts/omissions
of the second respondent; both
first and second respondents are in
terms of s 14(1) and (3) read with s 25(1) of PAIA obliged to, within
30 days, compile and
make available to the public a Departmental
Practice Manual for the purposes of regulating the administration and
management of
the requests and appeal processes and of considering
and deciding requests pertaining to access to information. He alleges
further
that in terms of s 27 of PAIA a failure to handle a request
in a manner aforesaid constitutes a “deemed refusal” of
the request. Therefore, it is the obligation of the first respondent
to make the right to access information a reality in a manner
consistent with s 27 of the Constitution.
[8] In terms of s 15(1) of the NHA read with s 25(1) of
the PAIA the second respondent is obliged to disclose personal
information
to the applicant where such access or disclosure is in
the interest of the applicant. The provisions of s 24(2)(a) of the
Fund
Act create an obligation upon the second respondent to complete
the claim form in respect of the applicant. Where the respondents
have refused access to information they are obliged in terms of s
25(1) of PAIA to furnish the applicant with adequate written
reasons
underpinning the decision. All these laws being subsumed under the
Constitution means that, according to the applicant,
the respondents’
failure to make available the medical information sought is
inconsistent with the provisions of ss 32(1)(a)
and 32(1)(b) of the
Constitution.
[9] The nub of the respondent’s opposition to the
relief sought is that the application ought to be dismissed with
costs because
it was brought prematurely in that, firstly, the
applicant never applied correctly for the claim form to be completed
and, secondly,
he did not exhaust the internal appeal remedy but he
merely engaged the respondents through “futile correspondence”
and “by-passed internal appeal remedies”
[10]
Mr Hobbs,
who appeared on behalf of the
applicant submitted, correctly so, that the respondents’
defence that the applicant failed to
follow correct procedures cannot
be sustained because full particulars of procedures to be followed
were not disclosed in the answering
affidavit despite a request for
the Departmental Practice Manual having been made by the applicant.
The respondents admit having
received a letter requesting the claim
form to be completed as well as that it was due to tardiness and
neglect of the letters
of request that led to failure to furnish a
response. It is also my view that silence on the part of the
respondents to a demand
for an appeal against refusal of the requests
is not being disputed by the respondents. Nevertheless, it was
submitted in argument
by
Mr Jozana
, who appeared on behalf of
the respondents, that in terms of s 78 of the PAIA the bringing of
the application should have been
preceded by a hearing of the
internal appeal.
[11] The provisions of s 78(1) and (2) of the PAIA read:
“(1) A requester or third party referred to in section 74
may only apply to a court for appropriate relief in terms of section
82 after the requester or third party has exhausted the internal
appeal procedure against a decision of the information officer of a
public body provided for in section 74.
(2) A requester-
(a) that has been unsuccessful in an internal appeal to the relevant
authority of a public body;
(b) aggrieved by a decision of the relevant authority of a public
body to disallow the late lodging of an internal appeal in terms
of
section 75 (2);
(c) aggrieved by a decision of the information officer of a public
body referred to in paragraph (b) of the definition of ‘public
body’ in section 1-
(i) to refuse a request for access; or
(ii) taken in terms of section 22, 26 (1) or 29 (3); or
(d) aggrieved by a decision of the head of private body-
(i) to refuse a request for access; or
(ii) taken in terms of section 54, 57 (1) or 60,
…may, by way of an application, within 30 days apply to a
court for appropriate relief in terms of section 82.”
[12] It appears from the provisions of s 78 that the
manner in which the appeal is lodged is set out in s 75, which
directs that
the appeal must be lodged in the prescribed form and, in
that form, an applicant must identify the subject of the appeal and
state
the reasons for the appeal.
[13] It is contended on behalf of the respondents that
the applicant did not follow any of the appeal procedures laid down
in s
75(2) of the PAIA, with reliance being placed on the
dictum
of the Supreme Court of Appeal case of
Nichol v Registrar of
Pension Fund
[2006] 1 All SA 589
(SCA) at para. [16] which goes:
“Exceptional circumstances defy definition, but, where
Parliament provides an appeal procedure, judicial review will have
no
place unless the applicant can distinguish his case from the type of
case for which the appeal procedure was provided“
[14] It was also submitted on behalf of the respondents
that the provisions of s 7(2) of PAJA reinforces s 78 of PAIA save
that
in terms of s 7(2)(c) applicant may be exempted from the
obligation to exhaust internal appeal remedy in the interest of
justice.
[15] In this case the applicant seeks, amongst other
relief, an exemption from following the internal appeal procedure in
term of
s 75 of the PAIA not because he did not take steps to subject
the passive refusal of the respondents to an internal appeal process
but because he was refused engagement in that process. On the proved
facts, the applicant was totally refused a hearing by the
respondent
with the result that he resorted to this application. The respondents
have testified that they could not respond to
the applicant’s
requests due to pressure under which the hospital operates, the
hospital is short-staffed, the only 8 doctors
available in the
hospital could not cope with a deluge of requests for medical
information and, consequently, the medical superintendent
could only
ignore the requests due to an alleged frustration. This attests to a
systemic failure in the Health Department and an
admission by the
respondents of failing to execute their statutory duties as envisaged
in s 6(2)(g) of the PAJA, which reads:
“the action concerned, consists of a failure to take a
decision.”
[16] It was held in the case of
Vumazonke v MEC for
Social Development, Eastern Cape and Three Other Similar Cases
2005
(6) SA 229
(SE) that a failure by an organ of State to take a
decision is a breach of constitutional obligation. Plasket J puts the
matter
in the following terms in
Vumazonke
at para. [12]
“…the Constitutional Court referred to the values that
the public administration is required to adhere to and promote.
They
are to be found in s 195 of the Constitution. Its provisions that are
relevant to this matter are: s 195(1)(a), which requires
that a ‘high
standard of professional ethics must be promoted and maintained’;
s 195(1)(b), which requires that ‘(e)fficient,
economic and
effective use of resources must be promoted’; s 195(1)(e),
which requires that the needs of people ‘must
be responded to’;
s 195(1)(f), which requires that public administration ‘must be
accountable’; and s 195(1)(g),
which requires that
‘(t)ransparency must be fostered by providing the public with
timely, accessible and accurate information.’”
[17] In this case the respondents have failed to give
reality to the applicant’s rights of access to medical
information and
in terms of s 14 of the PAIA and of appeal in terms
of ss 74 and 75 of the PAIA. It is not that the applicant did not
lodge an
appeal at all because he did so in terms of exhibit “MM
9”, which complied substantially with the requirements of s
75
of PAIA. It cannot be doubted that had the applicant been given the
appropriate forms to complete and lodge towards the appeal,
he would
have been able to comply fully with s 75. With all avenues for
constitutional expression being denied by the respondent,
the
applicant was correct in bringing an application seeking a
mandamus
to force the respondents to comply with their duties. In my
opinion the relief sought in the notice of motion was well considered
by the applicant in the light of the bar which is created by the
provisions of s 78 of the PAIA.
[18] It is not correct that the applicant by-passed the
internal appeal process. The truth of the matter is that the
applicant was
denied his right to engage into the appeal process.
There was a need for the applicant to ask for a
mandamus
in
this Court, as it did so in terms of s 82(b) of the PAIA, to force
the respondents to execute their obligations in terms of
s 77(3) and
(7) of the same Act. Such conduct is reasonable. In the circumstances
this court would be correct in ordering the respondents
to carry out
their statutory duties even though there has been no direct refusal
on their part to do so- see:
Vumazonke, supra,
at para. [36].
[19] Of the two parties before this Court, the
respondents conducted themselves very badly towards the applicant’s
requests.
For this they cannot escape the costs. But when dealing
with public offices, especially those of the government, one should
not
lose sight of the fat that in as much as the
residual blame for an administrative bundle lies at door
steps of the Minister concerned, it is the work of administrative
officers
who are responsible for most of the bundling that we see. In
this case the reason for a lack of compliance on the part of the
Minister
cannot be properly described as being
mala fide
in my
view. The same can be said about the second respondent. This factor
must be reflected in the order that will be made.
[20] In the result the following order shall issue:
Paragraphs 1.1; 1.1.1 and 1.1.2 of the
Rule Nisi
dated 11
August 2011 be and are hereby discharged.
The respondents be and are hereby ordered to pay the costs of
this application on party and party scale jointly and severally, the
one paying and the other being absolved from liability.
___________________________
Z.M.
NHLANGULELA
JUDGE
OF THE HIGH COURT
Counsel for the applicant : Adv. J. Hobbs
Instructed by : Mancotywa, Ndzamela Inc
locally represented by:
S. Booi & Sons Attorneys
MTHATHA
Counsel for the respondent : Adv. M. Jozana
Instructed by : State Attorney
MTHATHA