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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2014/34461
In the matter between:
G[…] P[…] obo N[…] P[…] Applicant/Plaintiff
and
MEMBER OF EXECUTIVE COUNCIL FOR
HEALTH, GAUTENG PROVINCE Respondent/Defendant
JUDGMENT
NDLOKOVANE AJ
Introduction
[1] This is an interlocutory application brought by the Applicant in terms of r ule
35(7) of the Uniform Rules of Court to compel the Respondent, the Member of
the Executive Council for Health, Gauteng Provincial Government ("the MEC")
who is the defendant in the principal action, to comply with a notice for further
discovery delivered under rule 35(3).
[2] The application arises from pending medical negligence proceedings
instituted by the Applicant on behalf of her minor child against the MEC. In
those proceedings, the Applicant/Plaintiff claims substantial delictual damages
arising from alleged negligent obstetric and neonatal treatment at Charlotte
Maxeke Johannesburg Academic Hospital and/or Chris Hani Baragwanath
Academic Hospital.
[3] The present application concerns the proper scope of discovery under r ule
35(3). It requires the Court to determine whether various financial,
procurement and staffing records sought by the MEC are relevant to the
issues raised on the pleadings, or whether the request exceeds the
permissible limits of discovery and amounts to an impermissible fishing
expedition.
Background
[4] Summons was issued during September 2014. The Applicant seeks damages
on behalf of her minor child arising from alleged medical negligence
committed by employees of the Gauteng Department of Health.
[5] The pleadings subsequently closed after amendments exchanged between
the parties. Discovery affidavits were exchanged in due course in terms of
rule 35.
[6] On 4 November 2021 the Applicant delivered a notice in terms of rule 35(3),
contending that the Respondent remained in possession of further documents
relevant to matters in issue.
[7] The Respondent objected to the notice on the basis that:
a. the requests are excessively broad;
b. many of the documents are not relevant to the pleaded issues;
c. the notice seeks information rather than discoverable documents;
d. portions of the request amount to a general investigation into the
financial and administrative affairs of the Gauteng Department of
Health.
[8] The Applicant thereafter launched the present application seeking an order
compelling compliance with the rule 35(3) notice and ancillary relief.
The Parties' Contentions
[9] The Applicant submits that the Respondent has pleaded what has become
known in medical negligence litigation as the “Public Health Care Defence”.
[10] Broadly stated, that defence asserts that the Gauteng Department of Health
possesses both the infrastructure and institutional capacity to provide the
future medical treatment, therapy, equipment and ancillary services required
by the minor child at standards equivalent to those available in the private
sector.
[11] The Applicant submits that such a defence necessarily places the
Respondent's operational capacity directly in issue. It contends that
documents relating to staffing levels, procurement systems, budgetary
allocations, expenditure patterns and institutional resources are essential in
testing the factual correctness of that defence.
[12] The Applicant argues that the requested documents are specifically identified,
objectively ascertainable and directly relevant to determining whether the
public hospitals concerned possess the practical ability to deliver the future
care pleaded.
[13] The Respondent submits that the rule 35(3) notice is impermissibly wide.
[14] It is contended that the notice seeks extensive financial records, procurement
documents, staffing data and administrative material spanning several years
without demonstrating any real connection between those documents and the
issues arising on the pleadings.
[15] The Respondent further argues that rule 35(3) is not intended to permit a
litigant to investigate whether some evidence may emerge in support of its
case. Rather, the r ule permits discovery only of identified documents which
are shown to be relevant to issues already joined on the pleadings.
[16] The respondent accordingly characterises the notice as a classic fishing
expedition prohibited by the authorities.
Issues For Determination
[17] The following issues arise for determination:
a. whether the documents sought in the r ule 35(3) notice have been
identified with sufficient particularity;
b. whether the requested documents may reasonably be relevant to issues
arising from the pleadings;
c. whether the notice amounts to an impermissible fishing expedition;
d. whether the lapse of time between the r ule 35(3) notice and the present
application disentitles the Applicant to relief;
e. whether any refusal to discover the requested documents warrants an
order compelling discovery under rule 35(7);
f. whether the circumstances justify a punitive costs order.
The Legal Framework
[18] Rule 35 embodies the principle that civil litigation should not be conducted by
ambush. Discovery enables each party to identify documentary material
relevant to the issues in dispute so that trials are determined upon all relevant
evidence rather than tactical concealment.
[19] Rule 35(3) supplements the ordinary discovery process. It permits a litigant
who believes that additional relevant documents exist to require the opposing
party either to produce those documents or to state on oath that they are not
in its possession and, if known, where they may be found.
[20] The rule does not create an unrestricted right to inspect the records of one's
opponent. Its purpose is confined to securing discovery of documents that are
relevant to issues properly arising from the pleadings.
[21] The principles governing Rule 35(3) are long been settled. In The MV Urgup:
Owners of the MV Urgup v Western Bulk Carriers (Australia) (Pty) Ltd and
Others,
1 the court held that r ule 35(3) is directed at circumstances where a
litigant knows, or at least reasonably believes, that identifiable documents
relevant to the issues are in the possession of the opposing party. The r ule
does not authorise a litigant to conduct a speculative search in the hope that
useful material might emerge.
[22] The requirement of relevance remains central. A document need not itself
constitute evidence that will ultimately be admissible at trial. It is sufficient if
the document may directly or indirectly advance the case of the party
requiring discovery or may fairly lead to a train of enquiry having that
consequence. However, relevance must always be assessed against the
issues as defined by the pleadings and not by reference to wider investigative
objectives.
Analysis
The proper approach to rule 35(3)
[23] The starting point is that r ule 35(3) does not create an independent right to
investigate an opponent's affairs. Its purpose is to supplement an inadequate
discovery where there is reason to believe that specific documents relevant to
matters in issue have not been disclosed. The sub -rule therefore requires
three jurisdictional facts, namely:
a. a reasonable belief that further documents exist;
b. that such documents are in the possession or control of the opposing
party; and
1 1999 (3) SA 500 (C) (“MV Urgup”).
c. that the documents may be relevant to a matter in question in the
action.
[24] Relevance is the controlling consideration. In MV Urgup, the court explained
that rule 35(3) is intended to supplement discovery w hich has already taken
place but which is alleged to be inadequate, it does not afford a litigant “ a
licence to fish in the hope of catching something useful ”.2 That principle has
consistently been endorsed in subsequent decisions.
[25] Equally well established is that relevance is determined objectively with
reference to the pleadings. The court is not concerned with whether the
documents will ultimately prove decisive, but whether they may fairly assist
either party in proving or disproving an issue that has been raised on the
pleadings.
[26] Discovery is therefore not confined to documents which themselves constitute
evidence. It extends to documents which may directly or indirectly advance a
party's case or lead to a line of enquiry capable of doing so. At the same time,
the rules do not permit speculative requests for extensive categories of
documents merely because they might reveal something useful.
The pleaded “Public Health Care Defence”
[27] The Applicant submits that the Respondent has pleaded what is now known
as the Public Health Care Defence, namely that the Gauteng Department of
Health possesses the institutional capacity to provide the future treatment,
therapy, assistive devices and ancillary services required by the minor child at
public health facilities.
[28] That defence has become increasingly common in medical negligence
litigation concerning future medical expenses. Where such a defence is
pleaded, the defendant places directly in issue not merely the theoretical
availability of treatment , but its practical ability to deliver such treatment
consistently, timeously and to an appropriate standard.
2 Id at 515D-E.
[29] The factual foundation of such a defence necessarily includes the existence of
suitable facilities, appropriately qualified personnel, procurement
mechanisms, equipment and funding sufficient to deliver the future care relied
upon.
[30] It follows that documentary material demonstrating the actual operational
capacity of the relevant institutions may, depending upon its nature and
scope, be relevant to issues arising on the pleadings.
The BAS reports and recorded accruals
[31] The Applicant seeks production of Basic Accounting System ( “BAS”) reports
together with recorded accruals relating to the Gauteng Department of Health
and the hospitals upon which the Respondent relies.
[32] The Applicant contends that these documents demonstrate the financial
capacity of the relevant institutions to procure specialised equipment,
medication, orthotic devices and other services which the Respondent alleges
can be provided within the public health system.
[33] There is force in the submission that financial capacity forms part of the
factual matrix underlying the Public Health Care Defence. A hospital that is
unable to procure specialised equipment because of chronic budgetary
constraints or substantial unpaid accruals may face practical difficulties in
delivering future treatment.
[34] That does not, however, mean that every financial record maintained by the
Department becomes discoverable. Rule 35 requires relevance to the pleaded
issues, not disclosure of the Department's entire financial administration.
[35] The notice, insofar as it seeks all BAS reports and accrual records from 2015
to date, is framed in exceptionally broad terms. It is not confined to
expenditure relating to the treatment or services upon which the defence
relies, nor is it limited to the period reasonably relevant to the future care of
the minor child.
[36] Such a request extends beyond what r ule 35 contemplates. It seeks
wholesale disclosure of financial records without demonstrating why and how
every document within that category bears upon the pleaded issues.
The PERSAL reports
[37] The Applicant similarly seeks PERSAL reports reflecting staffing information
relating to the relevant public hospitals. Staffing levels may be relevant where
the Respondent asserts that specialised services are available, as the
availability of specialists, therapists, nurses and other allied healthcare
professionals may bear directly on whether the pleaded future care can in fact
be provided.
[38] However, PERSAL constitutes the Department's personnel administration
system, and a request for all staffing records from 2015 to date extends well
beyond what is necessary to test the pleaded defence. Unless the requested
records are linked to the specific services and healthcare professionals whose
availability is relied upon, the request assumes the character of a fishing
expedition. Discovery should accordingly be confined to those staffing records
capable of demonstrating whether the relevant specialists or allied healthcare
professionals necessary for the pleaded treatment are available at the
institutions identified by the Respondent.
[39] Nevertheless, the request before Court is not confined to the categories of
healthcare professionals whose availability is relied upon in the pleaded
defence. Rather, it extends generally to staffing information across the
institutions.
[40] Rule 35 does not authorise discovery of documents merely because they may
reveal information about institutional administration. Unless the requested
staffing records are linked to the specific services alleged to be available to
the minor child, the request assumes the character of an impermissible fishing
expedition.
Procurement records
[41] The Applicant further seeks procurement records relating to medical
equipment, assistive devices and related services.
[42] Unlike the broader financial records, procurement documents relating
specifically to equipment and services which the Respondent alleges it can
provide may well be relevant. Such documents may objectively demonstrate
whether the Department has procured, maintained or contracted for the very
services relied upon in the pleaded defence.
[43] However, procurement records of an unrestricted nature extending across
unrelated services and multiple financial years are insufficiently confined to
satisfy rule 35(3).
RWOPS information
[44] The Applicant also seeks information concerning practitioners authorised to
perform remunerated work outside the public service ("RWOPS").
[45] It is argued that such information demonstrates the migration of skilled
personnel away from public facilities.
[46] In my view, that submission is too remote from the issues joined on the
pleadings. Whether practitioners participate in RWOPS does not, without
more, establish whether the relevant treatment required by this particular
minor child can or cannot be provided.
[47] The connection between RWOPS authorisations and the pleaded defence is
indirect and speculative. Discovery cannot be ordered on so attenuated a
basis.
Alleged fishing expedition
[48] The Respondent submits that the notice constitutes an impermissible fishing
expedition.
[49] That submission cannot be accepted in its entirety. Certain categories of
documents sought by the Applicant are capable of bearing directly upon the
pleaded Public Health Care Defence.
[50] Equally, however, it cannot be said that every category of document sought
satisfies the requirements of r ule 35(3). The notice seeks extensive financial,
procurement and staffing information over prolonged periods without sufficient
limitation.
[51] Rule 35 requires specificity. A litigant must identify documents or classes of
documents with sufficient precision to demonstrate their relevance to issues
arising on the pleadings. Generalised demands for broad categories of
administrative records fall outside the purpose of the rule.
POPIA and PAIA
[52] The Respondent also relied upon the Protection of Personal Information Act
3
(“POPIA”), the Promotion of Access to Information Act 4 (“PAIA”) and
confidentiality obligations.
[53] Those submissions cannot be upheld.
[54] Discovery in civil proceedings is governed principally by the Uniform Rules of
Court. Neither POPIA nor PAIA was enacted to restrict the ordinary discovery
process conducted under judicial supervision.
[55] Confidentiality concerns may justify appropriate safeguards or redactions
where necessary, but they do not create a general immunity from discovery
where documents are otherwise relevant.
3 4 of 2013.
4 2 of 2000.
Delay
[56] The Respondent further contends that the application was instituted after an
unreasonable delay following delivery of the rule 35(3) notice.
[57] Rule 35 prescribes no period within which an application to compel must be
brought. Delay remains relevant to the exercise of the court's discretion.
[58] In the present matter no material prejudice arising solely from the lapse of
time has been demonstrated. While the delay is regrettable, it does not in
itself justify refusing relief where otherwise appropriate.
Costs
[59] The Applicant seeks punitive costs on the basis that the Respondent has
acted obstructively and contrary to Practice Directive 1 of 2024.
[60] Punitive costs remain an extraordinary remedy reserved for conduct
deserving of judicial censure.
[61] The Respondent raised substantial legal objections concerning relevance,
overbreadth and the permissible scope of r ule 35(3). Those objections cannot
be characterised as frivolous or vexatious. Indeed, the Court has found merit
in several of them.
[62] It follows that no basis exists for a punitive costs order.
[63] Discovery is intended to facilitate the fair and expeditious resolution of
litigation by ensuring that parties have access to documents relevant to the
issues defined on the pleadings. It is not a mechanism by which one litigant
may conduct a general investigation into the affairs of another.
[64] The Respondent's Public Health Care Defence places in issue its ability to
provide the future medical treatment, equipment, therapeutic interventions
and ancillary services required by the minor child through the public health
system. To that extent, documentary material evidencing the existence of
such services, procurement arrangements, staffing resources and operational
capacity may be relevant.
[65] The Applicant is therefore entitled to seek discovery of documents that bear
directly upon those pleaded issues. However, r ule 35(3) requires that the
documents sought be identified with reasonable particularity. The r ule does
not permit blanket demands for extensive financial and administrative records
in the hope that relevant material may emerge.
[66] Much of the rule 35(3) notice is cast in exceptionally wide terms. The requests
for all BAS reports, all PERSAL reports, all procurement records and related
financial documentation over an extended period are insufficiently confined to
the issues arising on the pleadings. Compliance with such requests would
impose an unreasonable and disproportionate burden upon the Respondent
and would exceed the proper limits of discovery.
[67] At the same time, the Court is satisfied that documents relating specifically to
the procurement, funding and provision of the medical treatment, equipment
and services relied upon in the Public Health Care Defence are relevant and
discoverable. Those documents go directly to the Respondent's pleaded case
and are capable of assisting the Court in determining whether the defence is
factually sustainable.
[68] The Respondent's reliance on the P OPIA and P AIA as complete bars to
discovery cannot be sustained. Discovery in civil proceedings is governed by
the Uniform Rules of Court and remains subject to the supervision of the
court. Legitimate concerns relating to confidentiality may be addressed
through appropriate redactions or confidentiality undertakings where
necessary.
[69] The Applicant has not established grounds for the punitive costs order sought.
The Respondent's opposition was founded upon legitimate objections
concerning the scope and relevance of the Rule 35(3) notice. Although those
objections have not succeeded in every respect, they cannot be characterised
as frivolous, vexatious or amounting to recalcitrance warranting censure.
[70] In the exercise of the Court's discretion under r ule 35(7), the interests of
justice are best served by granting limited relief directed at documents
relevant to the pleaded Public Health Care Defence while refusing those
portions of the notice that are impermissibly broad.
Order
[71] In the result, the following order is made:
1. The application to compel is granted in part.
2. The Respondent shall, within 20 (twenty) days of the date of this order:
2.1. make available for inspection, or produce copies of, all documents
presently in its possession or under its control which relate specifically
to the procurement, funding, availability or provision of the medical
treatment, assistive devices, medication, therapeutic interventions and
ancillary healthcare services relied upon in support of the Public Health
Care Defence pleaded in the main action;
2.2. where any such documents are no longer in its possession or
under its control, deliver an affidavit stating their present whereabouts,
if known, in accordance with rule 35(3).
3. The Respondent is not required to discover:
3.1. general Basic Accounting System (BAS) reports unrelated to the
pleaded medical services in issue;
3.2. general PERSAL reports or personnel records unrelated to the
healthcare professionals whose services are relied upon in the Public
Health Care Defence;
3.3. general procurement records, tender documents or departmental
financial records that are not directly connected to the services, treatment
or equipment relied upon in the Respondent's pleaded defence;
3.4. documents sought solely for the purpose of investigating the
Respondent's general financial administration or institutional affairs.
4. The Applicant is granted leave, should it contend that the Respondent has
failed to comply with this order, to enrol the matter again on supplemented
papers for such further relief under rule 35(7) as may be appropriate.
5. The Applicant's claim for punitive costs is dismissed.
6. Each party shall pay its own costs of this interlocutory application.
N NDLOKOVANE AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION,JOHANNESBURG
APPEARANCES
FOR THE APPLICANT: Adv Brown & Adv Molope-Madondo
Instructed by: Sepamla Attorneys
FOR THE RESPONDENTS: Adv Chabane
Instructed by: The State Attorney, Johannesburg
HEARD ON: 23 July 2026
DATE OF JUDGMENT: 10 September 2026