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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 CONTEMPT 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 concerns that I have in this matter are common to those.[2] 

 

[5]          Counsel firstly did not share my view that the history of the matters 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 registrar’s office. 

 

[6]          My ruling in each matter was reserved so that I could satisfy myself as to whether the applicants were indeed entitled to the relief sought.  I find though for the reasons indicated below that the applications cannot be entertained and do not 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 the 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 the 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 basis[7] 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 proceedings.[8]

 

[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 it concerns.[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.”

 

[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 recognizes that the days between 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 … East London”, so the implication is that such service purports 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 State 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 provide 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 proviso  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 17^th of January 2025 already for hearing before me on the 28^th.[15]

 

[14]       The matter was therefore to my mind prematurely enrolled for hearing in the first place.[16]

 

[15]       Moreover, the notice of set down enrolling the present application again comes with no State Attorney’s reference neither does it indicate that it concerns a PAIA application or which hospital’s records are implicated.[17]   If this purports to be the required 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 applicant put up proof of the service of the order on the not-less-than 16 year old responsible employees 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 regard that only the court order itself was served which appears to have been an exercise in futility 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 Attorney 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 advising 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 provided in the Order (some of which are patently wrong), for the 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 possession 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 (both 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 interests 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.

 

[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 counsel being warned upfront that I would not lightly countenance such shortcomings, 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.

 

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 Sompali 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.

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