IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, BHISHO )
OF INTEREST LOCALLY
CASE NO. 1104A/2024
In the matter between:
NONKULULO DASTILE Applicant
and
THE SUPERINTENDENT GENERAL Respondent
FOR THE DEPARTMENT OF HEALTH,
EASTERN CAPE
In re PAIA request for records in the possession or custody of the Stutterheim
Hospital.
JUDGMENT IN RESPECT OF APPLICATION
FOR C ONTEMPT OF COURT AS A SEQUEL TO
ORDER GRANTED IN PAIA APPLICATION
HARTLE J
[1] The applicant seeks an order declaring the respondent to be in breach of and
in contempt of a court order handed down by my colleague, Stretch J, on 8 October
2024 under case number 639/2024 (“the Order”) .
[2] The case number of the present application ( “the contempt application ”) is
different than the one under which the Order was issued (“the PAIA application ”).
[3] When the matter was called , I asked counsel why that was, since the
contempt application is naturally incidental to the original application launched in
terms of the provisions of the Promotion of Access to Information Act, No. 2 of 2000
of (“PAIA”) . Indeed the applicant in her founding affidavit refers to it as “the main
application ”.
[4] There were three related contempt of court applications on the unopposed
motion court roll for 28 January 2025 initiated at the instance of the applicant’s
attorneys against the respondent which are exact replicas of each other but for
certain minor nuances that do not detract from the standard template adopted .1 The
concern s that I have in this matter are common to those .2
[5] Counsel firstly did not share my view that the history of the matter s was
particularly relevant or appreciate why I thought it necessary to have the main
application files placed before me. In their absence, I stood the matters down in
order to request the original files from the regi strar’s office .
1 In all four matters the applicants were injured in motor vehicle collisions. Pursuant thereto they were
treated at public hospitals. Each of them needed to access records from these institutions, requests
for which were lodged on their behalf under the provision of PAIA. These were followed by appeals
that did not yield up the records and ultimately there was a resort to court for relief in terms of section
82 of the PAIA by each one of them.
2 The reasons for the orders granted in each of those matters will thus appear from this judgment.
The other three matters concerned are the following:
1. 1105A/2025 – Nceba Mnyande v The Superintendent General for the Department of Health,
Eastern Cape (“Mnyande ”);
2. 1108A/2025 – Princess Hombakazi Galela v The Superin tendent General for the Department
of Health, Eastern Cape (“Galela ”) ; and
3. 1109A/2025 – Khulile Holly -Gate Sompali v The Superintendent General for the Department
of Health, Eastern Cape (“Sompali ”).
I will relate the minor differences between the cases as I go.
[6] My ruling in each matter w as reserved so that I could satisfy myself as to
whether the applicant s were indeed entitled to the relief sought. I find though for the
reasons indicated below that the applica tions cannot be entertained and do no t
succeed.
[7] In this matter, the original file revealed that the State Attorney had filed a
notice to oppose the PAIA application.3 That application (under case number
639/2024) was ultimately enrolled as an uncontested opposed matter for hearing on
8 October 2024, but the relevant State Attorney ’s particulars and file reference
number that appear on th e notice to oppose were not indicated on the notice of set
down of the application.4 Further, whilst that notice (peremptorily given in terms of
Rule 23 (m) of the Joint Rules of Practice ) was timeously delivered to the State
Attorney with reference to the proceedings of 8 October 2024 , it gave no indication of
the details of the case , save th e name of the applicant reflected in the header
together with the case number.5 Also not indicated is what hospital was implicated in
respect of the PAIA request or in fact that it concerned an application under the Act’s
provisions .6
[8] The relevance of this shortcoming and its cascading impact will shortly
become apparent.
[9] The Order was thus granted on a default basis7 ostensibly without any input
from the State Attorney who has an obligation to note the interests of the respondent
and advise him/her on the merits of the relevant legal procee dings.8
3 This was a common feature for each matter.
4 Mnyande’s prior application was made under case number 636/2024 and enrolled for hearing on 8
October 2024. Galela and Sompali were launched under case numbers 267 and 342/2024
respectively and enro lled for hearing before Poswa AJ on 13 August 2024.
5 In the case of each matter the standard notice reads that the “ above matter ” is set down for hearing
before the court on the separate dates on (13 August 2024 in the case of Galela and Sompali ) at
9.30a m or as soon thereafter as the matter may be heard. A common feature of all the matters is that
the notice in terms of Joint Rule of Practice 23 (m) does not speak to what the matters concern at all
and the State Attorney’s reference provided in the respe ctive notices to oppose were not indicated
therein for their convenience.
6 See my criticism in Wabena v Deputy Information Officer , Department of Health, Eastern Case ,
Bhisho Case No. 1378/2024 (“Wabena ”) at para [19].
7 The same applies in the other three matters except in Galela and Sompali this happened on 13
August 2024 before Poswa AJ.
8 Any cases in which judgment by the defendant is sought against the State (regardless whether it has
filed a notice of opposition or its opposing papers) re quires a notice of set down to be served on the
[10] The Order itself cites only the Superintendent General for the Department of
Health, Eastern Cape , with no reference number coupled to it whatsoever or any
intimation that it relates to a PAIA request or what hospital i t concern s.9
[11] The order directs the responsible officer to :
“1. … forthwith furnish the applicant with the following information and/or
medical records relating to his (sic)10 admission on or about 01 June
2023.
1.1 Complete Hospital/Medical records at their disposal;
1.2 Completed Statutory Medical report in the RAF1 form;
1.3 MRI Scans recording, if any;
1.4 CT Scan recordings, X -Rays; and
1.5 Any other medical records in their possession.
Within five (5) Court days of the order having been served in the
respondent (sic).
2. Directing that the respondent pays the costs of this application within
seven (7) Court days from the date of taxation. ”
State Attorney at least five days prior to the hearing. The object ive of this practice rule is so that the
State Attorney can advise its client regarding the proceedings so enrolled. See Wabena, Supra at
[19] read with footnote 10.
9 See Wabena as to the relevance of the necessary detail needing to be maintained throughout the
information requesting process so that the designated in formation officer can oblige by locating and
providin g meaningful access to records that are properly identified , described and referenced in the
relevant request and appeal forms. The same must in my view apply in respect of any sequel to a
PAIA order otherwise it makes a mockery of the objectives of the PAIA.
10 The gender is wrong. This would have led the respondent further from away finding a record
relating to a man, although the name in the Order is ostensibly that of a woman . The same applies to
Galela’s case in which the gender is misrepresented in the Order. Other obvious errors appear which
should have been corrected before resorting to contempt of court applications.
[12] The notice of motion in respect of the present application was served by the
sheriff on the respondent and the State Attorney on 8 and 20 December 2024
respectively.11
[13] Since the contempt application was commenced by a notice of motion rather
than as an application incidental to the PAIA application under the earlier case
number ,12 it was hit by the proviso to Uniform Rule 6 (5)(b)(iii) that recognize s that
the days betwe en 21 December and 7 January shall not be counted for purposes of
the delivery of a notice to oppose. This period would have expired on 15 January
2025 for the respondent ,13 but service was effected on the State Attorney as well.
The applicant states in her founding affidavit that “ for further purposes of these
proceedings her (meaning the respondent’s) other address is the office of the State
Attorney … E ast London ”, so the imp lication is that such service purport s to have
been in terms of the provisions of Uniform Rule 4 (1)(a)(aA). Whether in terms of the
Rule or the provisions of section 2 (2) (b) of the S tate Liability Act, No. 20 of 1957
(“the SLA ”), however the service on the State Attorney, following after service on the
executive authority of the department (who just so happens to be the designated
Deputy Information Officer as well) , was aimed to serve the important purpose of the
State Attorney being able , in the interests of its client , to provid e legal advice to the
respondent on the merits of the legal proceedings .14 Since the State Attorney was
served over the recess period, it would have enjoyed the respite afforded to it by the
provisions of the prov iso to Rule 6 (5)(b)(iii) aforesaid to give effect to its statutory
mandate , which would have extended to 28 January 2025 whereas the applicant had
enrolled the matter on the unopposed roll on the 17th of January 2025 already for
hearing before me on the 28th.15
[14] The matter was therefore to my mind prematurely enrolled for hearing in the
first place.16
11 In the other three matters the dates of service were 9 and 20 December 20 24.
12 The same applies to the other three matters.
13 In the case of the other three matters this would have taken the dies to 16 January 2024.
14 Section 2 (2) of the SLA. See also section 3 of the State Attorney Act, No. 56 of 1957. The
significance of t he State Attorney being kept in the loop is also a theme of Wabena , Supra .
15 The same enrolment date applies to the other three matters.
16 The same obstacle applies in the cases of Mnyande , Galela and Sompali .
[15] Moreover, the notice of set down enrolling the present application again
comes wit h no State Attorney’s reference neither does it indicate that it concer ns a
PAIA application or which hospital’s records are implicated.17 If this purports to be
the re quired notice to the State Attorney in terms of Rule 23 (m) , it in my view fails
the purpose thereof under the rule of practice quite spectacularly as it does not
inform the State Attorney adequately what the set down concerns so that it can
advise its client, the respondent, what measures to take or elect whether to appear
or not .18
[16] The applica nt put up proof of the service of the order on t he not-less-than 16
year old responsible employee s of the respondent and the State Attorney on 28
October and 11 November 2024 respectively.19
[17] It is evident from the sheriff’s returns of service in this rega rd that only the
court order itself was served which appears to have been an exercise in fut ility since
it says very little about the performance expected from the respondent. One might
possibly read into it that it concerns a PAIA matter, but concerning which hospital?
And which person , since even the gender of the requester is misstated in the Order
and no identity number for that person is provided.20 It begs the question how the
respondent or the State A ttorney could have been expected to react to it when the
latter’s reference number is also not indicated in it to have equipped the State
Attorney to carry out its statutory function of a dvisin g its client on the merits thereof .
[18] It therefore rings hollow to assert in the contempt application that the
respondent was properly served and has not complied with the Order despite the
proper service thereof.21 Indeed it appears ironic , given the perfunctory service and
pithy details provide d in the Order (some of which are patently wrong) , for the
17 This shortcoming is common to all the matters.
18 Wabena supra at par [21] and footnote 10 especially. My sentiments about its deficiency extend to
the other three matters as well.
19 The dates of service for Galela and Sompali differ. They are 18 Septemb er and 30 October 2024
respectively.
20 This gremlin does not apply in the cases of Mnyande and Sompali .
21 This was a standard refrain in each application.
applicant to assert that “ there is no apparent reason whatsoever, that causes the
Respondent to refuse to comply with the ( Order)”.
[19] As an aside I should note further that the respondent is directed in the Order
to provide a “Completed Statutory Medical report in the RAF 1 form ”. Read together
with the Form 2 request in the PAIA application , it is evident that such a document is
not (yet) in existence , but the applicant’s attorneys have used the Form 2 request to
the respondent to compel its provision.
[20] It is regrettable that a practice seems to have developed in this court pursuant
to which such a record is tagged on to the list of information requested under a PAIA
application for records anticipating Road Accident Fund claims without regard to the
very objective of the Act which is to facilitate access to a “ record ” that factually exists
and is in posse ssion or under the control of , in this instance , a public body.22
[21] Thus where the document is not yet in existence, an order in terms of PAIA
that it be provided to the requester self -evidently cannot be performed under its
provisions.
[22] As far as I am concerned I need not consider the matter any further. It is so
that in contempt of court applications , once it is shown that an order was granted and
the respondent has disobeyed it or neglected to comply with it (bo th objectively
established on the face of it in casu ) wilfulness will normally be inferred and the
respondent will bear the evidential burden to advance evidence that establishes a
reasonable doubt as to whether non -compliance was wilful and mala fide,23 but it
hardly appears necessary or in the interest s of justice in this instance to put the
respondent to such an explanation.
[23] Without being prescriptive, the applicant ought in my view to make use of the
provisions of Rule 42 to remedy the lack of important details appearing in the Order
and to serve again before she can complain that there is no reason that causes the
respondent to refuse to comply with its terms .
22 See definition of “ record ” in section 1 of the PAIA.
23 Fakie N.O. v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at 345.
[24] I should add my concern that in all four applications the commissioning of the
founding and confirmatory affidavits do not meet the requirements of the Justices of
the Peace and Commissioners of Oath Act, No. 16 of 1963 and the regulations
promulgated thereunder . Despite counse l being warned upfront that I would not
lightly countenance such shortcoming s, he did not remove the matters from the roll
as I suggested generally to the practitioners appearing before me on 28 January
2025 in order to rectify their papers .24
[25] In all the circumstances I issue the following order that will apply to the other
three matters as well :
1. The application is dismissed.
2. There is no order as to costs.
_________________
B HARTLE
JUDGE OF THE HIGH COURT
DATE OF HEARING : 28 JANUARY 2025
DATE OF JUDGMENT : 7 FEBRUARY 2025 *
Appearances:
For the Plaintiff : Mr. M Mhambi instructed by M Tshaka Attorneys, East London
(ref. Mr. Tshaka).
For the Defendant : no appearance.
24 See attached the exhortation to practitioners in re various matters enrolled on the unopposed
motion court roll at Bhisho High Court on 28 January 2025 that I issued before the commencement of
the court proceedings.
State Attorney’s reference in PAIA applications are :
1. 1104A/2024 – Nonkululo Dastile v The Superintendent General for the
Department of Health, Eastern Cape – 747/24 -P11(Ms. Tongo)
2. 1105A/2025 – Nceba Mnyande v The Superintendent General for the
Department of Health, Eastern Cape 742/24 -P11 (Ms. Tongo)
3. 1108A/2025 – Princess Hombakazi Galela v The Superintendent General for
the Department of Health, Eastern 367/24 -P4 (Ms. Yoba)
4. 1109A/2025 – Khulile Holly -Gate S ompali v The Superintendent General for
the Department of Health, Eastern Cape 406/24 -P11 (Ms. Tongo )
*Judgment delivered to the parties electronically on this date by email.