Van Wyk v Unitas Hospital and Another (CCT 12/07) [2007] ZACC 24; 2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC) (6 December 2007)

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[2007] ZACC 24
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Van Wyk v Unitas Hospital and Another (CCT 12/07) [2007] ZACC 24; 2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC) (6 December 2007)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 12/07
[2007]
ZACC 24
M M VAN WYK                                                                                                       Â
Applicant
versus
UNITAS
HOSPITAL
                                                                                    Â
First
Respondent
DR G E NAUDÉ                                                                                      Â
Second
Respondent
and
OPEN DEMOCRATIC ADVICE CENTRE                                                   Â
Amicus
Curiae
Decided on     :           6 December 2007
JUDGMENT
THE COURT:
Background
[1]
Three interrelated applications are involved in
this case.  The first is an application to re-enrol an application for leave to

appeal which was struck from the roll because there was no appearance for the
applicant on 21 August 2007.  The second is an application
for leave to appeal
against the judgment of the Supreme Court of Appeal holding that the applicant
is not entitled to a certain
report which she sought from Unitas Hospital, the first respondent (the hospital).
[1]
Â
The third application is an application for condonation of the late filing of
the application for leave to appeal.
[2]
The background to these applications is this.Â
The applicant’s husband died while he was a patient at the hospital.  The
applicant
believed that the death of her husband had been brought about by the
negligence of the hospital staff and that she had an action
for damages against
the hospital.  Dr Naudé, a specialist physician, the second respondent, who was
one of the medical doctors
who had treated her deceased husband, had prepared a
report on the nursing conditions at the hospital.  He did this in his capacity

as the director of the multi-intensive care unit at the hospital and as chairperson
of the hospital board.  The applicant believed
that this report could help her
to establish negligence on the part of the hospital staff.
[3]
The applicant approached the Johannesburg High Court
for, amongst other things, an order directing the hospital to make the report
available
to her.  She alleged that she was entitled to the report under the provisions
of section 50(1)(a) of the Promotion of
Access to Information Act, 2000 (PAIA).
[2]
  This section entitles any
person, upon request, to have “access to any record of a private body if that
record is required
for the exercise or protection of any rights”.
[3]
[4]
The High Court held that the applicant was
entitled to the report and granted her the relief sought.  On appeal, at the
instance
of the hospital, the majority of the Supreme Court of Appeal held that
the applicant was not entitled to the report.
[5]
Eleven months after the decision of the Supreme
Court of Appeal, the applicant approached this Court seeking leave to appeal
against
the decision of the Supreme Court of Appeal.  As this application was
out of time, she also applied for condonation of the late
filing of the
application for leave to appeal.  Both these applications were set down for
hearing at 10h00 on 21 August 2007.
[6]
When the case was called at 10h00 on 21 August
2007, there was no appearance for the applicant.  The case was stood down to
enable
the Registrar to enquire why there was no appearance.  When the matter
was recalled later, we were informed that the applicant’s
attorneys had
confused this case with another matter which was to be heard in the Pretoria
High Court on 29 August 2007.
[7]
Counsel for the first respondent did not, as he
was entitled to do, ask for the dismissal of the applications.  Instead he
asked
for wasted costs, including costs consequent upon the employment of two
counsel.
[8]
In the event the Court made an order (a)
striking the applications from the roll and (b) calling upon the applicant’s
attorneys
to show cause on affidavit not later than 7 September 2007 why they
should not be ordered to pay
de bonis propriis
(out of their own pocket)
the wasted costs of the appearance on 21 August 2007, including the costs of
two counsel.
[9]
The applicant’s attorneys subsequently filed an
affidavit in which they gave the reason for non-appearance.  The explanation
amounted to this.  On 13 August 2007, someone telephoned their office to notify
them that the matter would be heard on 29 August
2007.  They were under the
impression that the telephone message came from this Court and that the message
related to the present
case.  It only transpired on 21 August 2007, presumably
upon enquiries made by the Registrar of this Court, that the telephone
message
had come from the office of the Registrar in Pretoria and that it related to
another matter which was an appeal that was
due to be heard in the Pretoria
High Court.
[10]
Having considered this explanation, the Court
ordered the applicant’s attorneys to pay
de bonis propriis
the wasted
costs of the appearance on 21 August 2007 including costs of two counsel.
[11]
The applicant now seeks an order re-enrolling the
application for leave to appeal.  The basis of this application is that the
matter
was struck from the roll due to no fault on her part and that the
application for leave to appeal raises important constitutional
issues concerning
the right of access to information.  In support of the importance of the constitutional
issues involved, the
applicant has attached an affidavit on behalf of the Open
Democracy Advice Centre, the amicus curiae.  This affidavit emphasises
the
importance of access to information.
[12]
The applicant, however, only seeks to enrol the
application for leave to appeal.  Nothing is said about the application for
condonation.Â
Notwithstanding this glaring omission which would ordinarily be
fatal to the application for leave to appeal, we will assume in
favour of the
applicant that she seeks to have re-enrolled both the application for leave to
appeal and the application for condonation
of the late filing of the
application for leave to appeal.  In effect the applicant seeks to have these
applications set down
for the hearing of oral argument.
[13]
Against this background, we turn to consider
first the application to re-enrol.
The application to re-enrol
[14]
Applications to this Court are generally
governed by Rule 11, except where the rules of this Court provide otherwise.  This
Rule
requires that once all the papers are lodged, the application must be
placed before the Chief Justice who is required to deal with
the matter in
terms of Rule 11(4).  That Rule provides:
“When an application is placed before the
Chief Justice in terms of subrule (3)(c), he or she shall give directions as to
how
the application shall be dealt with and, in particular, as to whether it
shall be set down for hearing or whether it shall be dealt
with on the basis of
written argument or summarily on the basis of the information contained in the
affidavits.”
[15]
It is plain from the provisions of Rule 11(4)
that an application can either be dealt with in chambers, when the matter is
dealt
with summarily or on the basis of written argument, or in open court when
the matter is set down for the hearing of oral argument.Â
Rule 19(6)(b) which
deals with applications for leave to appeal contemplates a substantially
similar procedure.  In each case,
the matter must either be placed before the
Judges of this Court for consideration in chambers when the matter is to be
disposed
of summarily, or on the basis of written argument, or be placed on the
roll of the matters in which oral argument would be heard.
[16]
It is apparent from the provisions of Rule 11(4)
that the Court has a discretion on how to dispose of an application before the
Court.  It is equally clear from these provisions that the fact that the Court
has called for written argument does not necessarily
mean that the Court will
set the matter down for the hearing of oral argument.  It may, in an
appropriate case, dispose of the
matter on the basis of written argument only.Â
How an application shall be dealt with depends on the complexity of the issues
involved and what the Court considers necessary to enable it to deal with a
matter.  When the allegations made in the affidavit
require amplification by
written argument, the Court will call for written argument.  And if written
argument raises debatable
issues the Court will set down the matter for hearing
of oral argument.
[17]
The practice that this Court generally follows
is either to dispose of the matter summarily on the information contained in
the
affidavits, or issue directions requiring written argument and at the same
time setting the matter down for oral argument.  This
practice does not however
prevent the Court, in an appropriate case, from disposing of a matter on the
basis of written argument
should the matter not proceed on the date on which it
was set down for oral argument.  In each case, however, the question is whether

the matter is one that can be dealt with on the basis of written argument
without the need for oral argument.  This, in turn,
depends on whether there is
sufficient material before the Court to enable it to dispose of the matter
without oral argument.Â
In accordance with this practice, once an application
is lodged and a response to it is filed, the matter is placed before the Judges

in chambers to be dealt with in accordance with Rule 11(4).
[18]
When the Court decided to set these applications
down for hearing, all that we had before us were the applications and a response

to them by the hospital.  Since then and pursuant to the directions of this
Court, the record has been filed and both sides, including
the amicus curiae have
filed written arguments.  In these circumstances, the Court was placed in a better
position to decide whether
these applications should be re-enrolled for oral
argument in the light of all the additional material and written arguments that

have since been placed before it.  In particular the Court had to decide whether
there was enough material to dispose of these
applications without hearing oral
argument.  In the light of all the material available, the Court decided that
these applications
should be dealt with on the basis of written argument and
the other documents filed of record.  In the event the application to
set the
matter down for hearing had to fail.
[19]
Pursuant to this decision, and in accordance
with Rule 11(4), the Chief Justice issued directions indicating that the
application
will be dealt with summarily in chambers on the basis of all the
papers lodged including the written argument filed in relation
to both the
application for leave to appeal and the application for condonation.  Pursuant
to those directions, these applications
have since been placed before us for
consideration.  In the view we take of the application for condonation it will
be convenient
to deal with the application for condonation first.
Condonation
[20]
This Court has held that the standard for
considering an application for condonation is the interests of justice.
[4]
Â
Whether it is in the interests of justice to grant condonation depends on the facts
and circumstances of each case.  Factors
that are relevant to this enquiry
include but are not limited to the nature of the relief sought, the extent and
cause of the delay,
the effect of the delay on the administration of justice
and other litigants, the reasonableness of the explanation for the delay,
the
importance of the issue to be raised in the intended appeal and the prospects
of success.
[5]
[21]
The main issue to be raised in the intended
appeal concerns the right of access to information which is guaranteed by
section 32(1)(b)
of the Constitution and which has been given effect to by
section 50(1)(a) of PAIA.  The importance of this issue cannot be gainsaid.Â

The right of access to information is crucial to the exercise or protection of
the rights guaranteed in the Constitution.  The
issue that the applicant
intends to raise in this case is therefore ordinarily an issue on which obtaining
the views of this Court
would be desirable.  This much is apparent from the
written submissions of the amicus curiae.  But there are other considerations

that are relevant.
[22]
An applicant for condonation must give a full
explanation for the delay.  In addition, the explanation must cover the entire
period
of delay.  And, what is more, the explanation given must be reasonable.Â
The explanation given by the applicant falls far short
of these requirements.Â
Her explanation for the inordinate delay is superficial and unconvincing.  It
amounts to this.  During
the entire period of approximately eleven months she
was considering whether or not to appeal the decision of the Supreme Court
of Appeal.Â
During this period she sought advice from a number of individuals whom she has
not disclosed.  In addition she alleges
that she does not have unlimited funds
although she admits that this is not a compelling reason for the delay.  She
has not furnished
any explanation as to why it took approximately eleven months
for her to decide whether or not to appeal.  Nor has she furnished
any
explanation how she overcame her funding difficulty.
[23]
It is apparent from her affidavit, however, that
the delay was interrupted by the threat of execution to recover the taxed costs

awarded against her by the Supreme Court of Appeal.  In this regard she says
that matters came to a head when she received the
threat of execution to
recover taxed costs.  This apparently prompted her to seek advice on how to
avoid the payment of costs.Â
She was advised that if her claim against the
hospital is successful, her claim may well be attached to pay the hospital’s
taxed
costs.  It therefore appears from this explanation that but for the threat
of execution, the applicant would probably not have
appealed the decision of
the Supreme Court of Appeal.
[24]
The inference that the applicant had decided not
to pursue this matter is irresistible.  By the time the applicant approached
this
Court, she had not only issued summons against the hospital but the trial
date had been set for 15 March 2007.  There were prospects
of obtaining the
report through the rules relating to the discovery of documents.  The
inordinate delay in appealing against the
decision of the Supreme Court of
Appeal is, in our view, inexplicable except on the basis that the applicant had
no intention to
pursue this matter.  This explains the attitude of the
applicant in not proceeding with the matter until she was confronted with
a threat
of execution to recover taxed costs.
[25]
There is a further consideration that is
relevant to this case.  The applicant’s affidavit was sworn to on 23 February
2007.Â
The application was served on the hospital three days later, that is, on
26 February 2007.  And in view of a prior request for
discovery by the
applicant’s attorneys under the High Court rules, on 1 March 2007 the hospital
discovered the report sought
by the applicant in these proceedings.  However, the
application for leave to appeal was only lodged with the Registrar of this

Court on 13 March 2007, almost two weeks after the report had been discovered
under the rules and made available to the applicant.Â
There is no explanation
why it took more than two weeks after the service of the application on the
hospital before the application
was lodged with this Court.
[26]
When the applicant approached this Court the report
that she sought had been discovered under the rules relating to the discovery

of documents and was therefore available for her inspection.  The applicant did
not disclose this fact when she lodged the application
for leave to appeal in
this Court.  The application created the impression that the applicant still
desperately needed the report
claiming that it “will undeniably be of great
assistance to [her] in enforcing [her] right to claim damages from the First Respondent.”Â

It is understandable that the applicant could not have disclosed in her
founding affidavit the fact that the report had been made
available to her as
it only became available after she had deposed to the affidavit.  However, when
she lodged the application
for leave to appeal in this Court, the report had
been made available to her.  This fact should have been disclosed by way of a

supplementary affidavit.  It goes to the question of mootness of the underlying
issue as between the parties.
[27]
By the time the matter reached this Court
therefore, litigation had already commenced.  The applicant had been offered
the report
that she required.  In fact the civil action had been set down for
hearing.  The resolution of the main issue therefore has no
practical effect on
the parties, save in relation to the issue of costs.  The only reason why she
is seeking to appeal is apparently
to avoid a costs order awarded against her by
the Supreme Court of Appeal.  The main issue between the parties has therefore become

moot.
[28]
The amicus curiae submitted that it is
nevertheless in the public interest that the main issue be resolved.  It
submitted that
issues relating to the right of access to information are, as a
general matter, a moving target.  This is so because the time taken
for the
court process to take its course is so long that people who seek information
will no longer be in a position to use the
information to their advantage by
the time the proceedings (including any appeal) are finalised.  Or by the time
the matter comes
on appeal, the information would have been obtained through
the rules relating to discovery and therefore arguably render the matter
moot.Â
Therefore, the argument goes, issues relating to the right of access to
information will invariably be moot by the time
they reach this Court.  These
submissions are not without force.
[29]
It is by now axiomatic that mootness does not
constitute an absolute bar to the justiciability of an issue.  The Court has a
discretion
whether or not to hear a matter.  The test is one of the interests
of justice.
[6]
Â
A relevant consideration is whether the order that the Court may make will have
any practical effect either on the parties or
on others.
[7]
  In the exercise of its
discretion the Court may decide to resolve an issue that is moot if to do so
will be in the public interest.Â
This will be the case where it will either
benefit the larger public or achieve legal certainty.
[8]
[30]
If the only hurdle that the applicant had to
surmount was mootness, the position would have been entirely different.  Here
the
applicant has to surmount two hurdles, the first being the inordinate delay
coupled with a lack of a reasonable explanation for
the delay.  Mootness adds a
further hurdle and renders the first hurdle insurmountable.  Mootness is but
one of the factors that
must be taken into consideration in the overall
balancing process to determine where the interests of justice lie.  It assumes

a particular significance in this case where there was an inordinate delay of
some eleven months and the absence of a reasonable
explanation.  In the
circumstances of this case it would be unfair to the hospital to compel it to incur
more costs simply to
resolve an issue in the public interest.
[31]
There is an important principle involved here.Â
An inordinate delay induces a reasonable belief that the order had become
unassailable.
 This is a belief that the hospital entertained and it was
reasonable for it to do so.  It waited for some time before it took
steps to
recover its costs.  A litigant is entitled to have closure on litigation.  The
principle of finality in litigation is
intended to allow parties to get on with
their lives.  After an inordinate delay a litigant is entitled to assume that
the losing
party has accepted the finality of the order and does not intend to
pursue the matter any further.  To grant condonation after
such an inordinate
delay and in the absence of a reasonable explanation, would undermine the
principle of finality and cannot be
in the interests of justice.
[32]
It is true the case raises an important question
concerning the constitutional right of access to information.  This in itself
is no reason to come to the assistance of a litigant who has been dilatory in
the conduct of litigation.  This Court has previously
refused to come to the
assistance of litigants where there was a delay of some nine months regardless
of the issue raised.
[9]
[33]
The applicant has submitted that her application
for leave to appeal bears prospects of success.  Prospects of success pale into

insignificance where, as here, there is an inordinate delay coupled with the
absence of a reasonable explanation for the delay.
 And the issue is moot.Â
There is now a growing trend for litigants in this Court to disregard time
limits without seeking condonation.
 Last term alone, in eight out of ten
matters, litigants did not comply with the time limits or the directions setting
out the
time limits.  In some cases litigants either did not apply for condonation
at all or if they did, they put up flimsy explanations.Â
This non-compliance
with the time limits or the Rules of Court resulted in one matter being
postponed and the other being struck
from the roll.  This is undesirable.  This
practice must be stopped in its tracks.
[34]
In arriving at this conclusion, we have not given
much weight to the prospects of success.  We therefore express no opinion on
that issue.  While we consider the underlying issue between the parties moot,
we do not find it necessary to decide whether it
is in the public interest to
consider the underlying issue between the parties.  We reach our conclusion
based on the inordinate
delay of some eleven months and the absence of a
reasonable explanation for the delay viewed against the fact that the applicant

has obtained the report that she has been seeking.
[35]
For all these reasons, it is not in the
interests of justice to grant condonation.
[36]
This is not a case that warrants a costs order.Â
The Supreme Court of Appeal ordered costs.  That costs order is beyond our
reach.Â
Prior to the hearing of the matter, the hospital had offered to abandon
its costs order against the applicant.  We can only express
the hope that the
offer still stands.
[37]
In the event the following order is made:
(a)
The application to condone the late filing of
the application for leave to appeal is dismissed.
(b)
The application for leave to appeal is refused.
(c)
There is no order for costs.
Langa CJ, Moseneke DCJ, Madala J, Mpati
AJ, Ngcobo J, Nkabinde J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob
J.
[1]
Unitas
Hospital
v Van Wyk and Another
2006 (4)
SA 436 (SCA).
[2]
Act 2 of 2000.
[3]
Section 50(1)(a) of PAIA provides:
“A
requester must be given access to any record of a private body if that record
is required for the exercise or protection of
any rights”.
PAIA was enacted to give effect to
the right of access to information guaranteed by section 32(1)(b) of the
Constitution which provides:
“Everyone
has the right of access to any information that is held by another person and
that is required for the exercise or protection
of any rights.”
[4]
See
S v Mercer
[2003] ZACC 22
;
2004 (2) SA 598
(CC);
2004 (2) BCLR 109
(CC)
at para 4;
Head of Department, Department of Education, Limpopo Province v
Settlers Agricultural High School and Others
2003 (11) BCLR 1212
(CC) at
para 11 and
Brummer v Gorfil Brothers Investments (Pty) Ltd and Others
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para 3.
[5]
See
Brummer
id.
[6]
Radio Pretoria v Chairperson, Independent Communications
Authority of South Africa, and Another
[2004] ZACC 24
;
2005 (4) SA 319
(CC);
2005 (3) BCLR
231
(CC) at para 22.
[7]
Independent Electoral Commission v
Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC);
2001 (9) BCLR 883
(CC) at para 9.
[8]
AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and
Another
[2006] ZACC 9
;
2007 (1) SA 343
(CC);
2006 (11) BCLR 1255
(CC) at para 27 and
Radio
Pretoria
above n 6 at para 22.
[9]
Settlers Agricultural High School
and
Brummer
above n
4.