---

FLYNOTES: CIVIL PROCEDURE – Reviews – Record – Proceedings to award contracts – Awarded by police medical scheme – Defendants resisting with contentions on organs of State and public powers – Cannot attempt to mount a defence to the application to compel disclosure of the Rule 53 record by reference to the merits of the review application – Privilege or other objections not raised – Scheme ordered to produce record – Uniform Rule 53(1)(b).

 

 

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

Case No. 60445/2021

(1) REPORTABLE: YES

(2) OF INTEREST TO OTHER JUDGES: YES

(3) REVISED.

DATE: 9^TH May 2023

SIGNATURE:

In the interlocutory application of:

 

METROPOLITAN HEALTH CORPORATE (PTY) LTD                  First Applicant

 

MOMENTUM HEALTH SOLUTIONS (PTY) LTD                            Second Applicant

 

MOMENTUM CONSULTANTS AND ACTUARIES (PTY)               Third Applicant

LTD

 

and

 

SOUTH AFRICAN POLICE SERVICE MEDICAL SCHEME            First Respondent

(“POLMED”)

 

MEDSCHEME HOLDINGS (PTY) LTD                                              Second Respondent

 

IN RE:

 

METROPOLITAN HEALTH CORPORATE (PTY) LTD                      First Applicant

 

MOMENTUM HEALTH SOLUTIONS (PTY) LTD                               Second Applicant

 

MOMENTUM CONSULTANTS AND ACTUARIES (PTY)                  Third Applicant

LTD

 

and

 

SOUTH AFRICAN POLICE SERVICE MEDICAL SCHEME              First Respondent

(“POLMED”)

 

MEDSCHEME HOLDINGS (PTY) LTD                                              Second Respondent

JUDGMENT

 

The judgment and order are published and distributed electronically.

VERMEULEN AJ

[1]       The present application comes before me as an opposed interlocutory application to compel the First Respondent, the South African Police Services Medical Scheme (“POLMED”) to produce a record of proceedings (Rule 53 record) in terms of Rule 53(1)(b) of the Uniform Rules.

 

[2]        This interlocutory application is brought in the context of the Applicants’ main application.  In the main application Metropolitan Health Corporate (Pty) Ltd and two others instituted review proceedings in terms of the Promotion of Access to Justice Act 3 of 2000 (PAJA) in this Honourable Court under the abovementioned case number, in which they seek to have reviewed and set aside POLMED’s decisions to award two contracts, one for the Rendition of Administration Services in respect of one bid (the Administration Services bid) and the other for Managed Health Care Services in respect of POLMED’s other bid (the Managed Health Care Services bid) to Medscheme Holdings (Pty) Ltd (Medscheme).

 

[3]        It is common cause that POLMED is a Medical Scheme registered as such in terms of the provisions of the Medical Schemes Act 131 of 1998 (MSA).  It is also common cause that the Second Respondent, Medscheme was awarded both contracts in respect of both of POLMED’s aforementioned bids.

 

[4]        The applicants have instituted this interlocutory application to compel POLMED to furnish it with the Rule 53 record of the decisions it took on the 21^st of June 2021 to award the contracts to Medscheme.

 

[5]        POLMED as the First Respondent opposes the relief sought in the main application for review, on the basis that its decision is not reviewable in terms of Rule 53 in that it is neither an Organ of State nor a private party exercising a public power, and its decision therefore falls outside of the scope of PAJA. POLMED submits that this defence constitutes a substantive defence and that the Respondents have a constitutional right to have this dispute determined at this stage and that this is an issue where the record of proceedings will not assist in determining this dispute.

 

[6]        POLMED has also filed a counter-application in which it seeks a declarator in terms of Section 21(1)(c) of the Superior Court Act[1] that is not an Organ of State and that the interlocutory application instituted by the applicants be dismissed with costs.

 

[7]        Medscheme as the Second Respondent also opposes this application on the fundamental basis that it is trite law that the business of a medical scheme does not constitutes a performance of a public function or the exercise of a public power.  Accordingly, that POLMED’s decision to award the contracts to Medscheme are not reviewable under PAJA or the principle of legality.  Equally, therefore, that neither can a record be called for nor compelled to be produced in terms of Rule 53(1)(b) of the Uniform Rules.

 

[8]        In opposition to these defences the applicants contend that:

 

[8.1]     It is dominus litis and that POLMED is not permitted to short circuit the main application review proceedings by refusing to provide a record in terms of Rule 53 and by bringing the counter-application;

 

[8.2]     That the counter-application in which POLMED seeks an order declaring that it is not an Organ of State, is premature;

 

[8.3]     That the substantive defence which POLMED and Medscheme have raised, in the interlocutory application and by way of POLMED’s counter-application, should be argued and determined by the Court which will hear the main review application in due course. In the premises the applicants contend:

 

[8.3.1] That it is entitled to production of the Rule 53 record as a matter of law and that the basis of opposition advanced by POLMED (and Medscheme) does not feature at this stage;

 

[8.3.2] That the applicants are entitled to the production of the Rule 53 record even if POLMED is to be construed as a private body;

 

[8.3.3] That even in the event that this Court pronounce on whether POLMED is exercising a public power, that POLMED, which is funded entirely by the public, exercises a public power and it cannot insulate itself from accountability, given the nature inter alia of its funding.

 

Legal Principles:

Is the counter-application by POLMED premature?

 

[9]        The applicants bring the present application in terms of the provisions of PAJA.

 

[10]      On 4 November 2019 the new Administrative Review Rules, made by the Rules Board for Courts of Law under s 7 of PAJA, came into operation.[2] Under the Administrative Review Rules an application for review in terms of PAJA must be brought in terms of Rule 6 or Rule 53 of the Uniform Rules of Court, as the case may be.

 

[11]      The applicants chose to bring the present application in terms of Rule 53.

 

[12]      The relevant provisions of Rule 53  of the Uniform Rules provide:

 

“(1) Save where any law otherwise provides, all proceedings to bring under review the decision or proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions shall be by way of notice of motion directed and delivered by the party seeking to review such decision or proceedings to the magistrate, presiding officer or chairperson of the court, tribunal or board or to the officer, as the case may be, and to all other parties affected —

 

(a)   ……….

 

(b)   calling upon the magistrate, presiding officer, chairperson or officer, as the case may be, to despatch, within fifteen days after receipt of the notice of motion, to the registrar the record of such proceedings sought to be corrected or set aside, together with such reasons as he or she is by law required or desires to give or make, and to notify the applicant that he or she has done so.

 

……..

           

(4) The applicant may within ten days after the registrar has made the record available to him or her, by delivery of a notice and accompanying affidavit, amend, add to or vary the terms of his or her notice of motion and supplement the supporting affidavit.

 

 

[13]      Rule 53 of the Uniform Rules which governs review proceedings is true to South Africa[3]. In Jockey Club of South Africa v Forbes[4] Kriegler AJA emphasised:[5]

“Our rule 53 and our practice for the review of decisions by extra judicial tribunals differs toto caelo from Order 53 of English practice. Indeed, virtually all they have in common is the number”.

 

[14]      It is important to note that whilst there is a similarity between trial discovery and review proceedings, in as much as in both a party is compelled to make disclosure for the purposes of litigation, there are fundamental differences between the two process.[6] 

 

[15]      Unlike Rule 53, discovery is only undertaken after the pleadings have closed.  The object of mutual discovery is to give each party, before trial, all the documentary material of the other party so that each, after the contours have already been drawn, can consider its effect on his own case and his opponent’s case and decide whether to carry on at all and, if so, how to carry on the proceedings.  Discovered documents do not form part of the record, and are not before the Court unless a party decides at the trial to make use of them.  It is therefore quite possible, even likely, that many of the documents which were discovered will never see the light of day in Court.[7]

 

[16]      Review proceedings differ materially.

 

[16.1]  The purpose of Rule 53 is to “facilitate and regulate applications for review”.[8]

 

[16.2]  In terms of Rule 53 the right to require the record of the proceedings of a body which decision is taken on review is primarily intended to operate for the benefit of the applicants.[9]  It helps to ensure that review proceedings are not launched in the dark.[10]

 

[16.3]  The filing of the full record furthers an applicant’s right of access to Court by ensuring both that the Court has the relevant information before it and that there is a quality of arms between the person challenging a decision and the decision maker. A quality of arms requires that parties to the review proceedings must each have a reasonable opportunity of presenting their case on the conditions that do not place them at a substantial disadvantage vis-a-vis their opponents. This requires that all the parties have identical copies of the relevant documents on which to draft their affidavits and that they and the Court have identical papers before them when the matter comes to Court.[11]

 

[16.4]  Rule 53 provides access to a far greater ambit of documents than normal discovery under rule 35. In Mamadi and Another v Premier Limpopo Province and Others[12] the Constitutional Court referred with approval to the following passage in Helen Suzman Foundation case supra:

 

“[T]he rule 53 process differs from normal discovery under rule 35 of the Uniform Rules of Court. Under rule 35 documents are discoverable if relevant, and relevance is determined with reference to the pleadings. So, under the rule 35 discovery process, asking for information not relevant to the pleaded case would be a fishing expedition. Rule 53 reviews are different. The rule envisages the grounds of review changing later. So, relevance is assessed as it relates to the decision sought to be reviewed, not the case pleaded in the founding affidavit.”

 

[16.5]  The record enables the applicant and the Court fully and properly to assess the lawfulness of the decision making process.  It allows an applicant to interrogate the decision and, if necessary, to amend its notice of motion and supplement its grounds for review.[13]

 

[17]     In the premises, when an applicant in review proceedings file its Supplementary Affidavit, after having had sight of the record, it is, in effect fully stating its case for the first time.[14] This subrule gives an applicant for review a clear right to amend, add to or vary the notice of motion and to supplement the founding affidavit without the consent of the opposite party or the leave of the court. [15]

 

[18]     A respondent is not entitled to circumvent the applicant’s right to the rule 53 record by giving undertakings. Any talk of the relief being conceded, etc would be premature. The applicant is entitled to sight of the record and to evaluate his position in the light of its contents.[16]

 

[19]      What is evident from the bases of opposition relied upon by both POLMED and Medscheme in their opposition and by POLMED in the counter application, is that they attempt to mount a defence to the application  to compel disclosure of the rule 53 record by reference to the merits of the review application. This they cannot do at this stage.

 

[20]   I agree with the findings of Jones J in the matter of  Fizik Investments (Pty) Ltd t/a Umkhombe Security Services v Nelson Mandela Metropolitan University [17]

 

“[7.1] It is understandable that, because decisions affecting its rights and interests were taken in its absence, the applicant requires the documentary record of the process followed by the respondent during the past months to determine the extent of the invasion of its rights. In my view, it has a procedural right to the record in terms of rule 53(1)(b) and, G importantly, rule 53(4) which states that an applicant may within ten days after the registrar has made the record available to him, by delivery of a notice and accompanying affidavit, amend, add to or vary the terms of his notice of motion and supplement the supporting affidavit. This is underlined by Kriegler AJA's explanation of the purpose H of the rule in Jockey Club of South Africa v Forbes [1992] ZASCA 237; 1993 (1) SA 649 (A) at 660E - H. It is also precisely what the founding papers say the applicant wants to do. The deponent to the founding affidavit says, in terms:

 

   'Once the respondent has furnished the applicant with the entire record of proceedings, which include all minutes of meetings, all resolutions taken by the executive management committee, the tender committee I or any other committee relevant to the process, copies of the recording parameters employed, relevant portions of the tender register and any correspondence relating to the award of the tender, the applicant will, as it is entitled to in terms of rule 53 . . . amplify these papers.'

 

It is only after the applicant has received the record that it can amplify J the notice of motion and affidavits in the light of its contents, and only then is it required to formulate its allegations and its relief in final terms. A Only thereafter is the respondent called upon to give notice of intention to defend in terms of rule 53(5). A respondent is not entitled to circumvent the applicant's right to the record for these purposes merely by giving undertakings, and especially so where the undertakings are not given in terms acceptable to the applicant. Any talk of the relief being B conceded, or the claims being settled, or the issues becoming moot, is premature. The point cannot arise until the applicant has sight of the record and is in a position to evaluate its position in the light of its contents.”

 

[21]   In the judgement of Appellate Justice Brand in Competition Commission v Computicket (Pty) Ltd[18] it was stated that:

 

“[20] At first sight one could be pardoned for thinking that, in the light of these two concessions the Commission would have no answer to Computicket’s demand for the record which formed the basis of the decision it seeks to challenge. Nonetheless, the Commission offered not only one, but two answers. Its first answer was that in order to demand the record, Computicket had to make out a prima facie case for review. The only basis relied upon for this contention was that Computicket bears the onus of establishing its review grounds. But as I see it, the basis relied upon amounts to a non sequitur. I agree with the CAC’s finding that this argument effectively places the cart before the horse. Not infrequently the ability of an applicant for review to discharge the onus resting on it to make out a case, will depend on considerations appearing – or not appearing – from the record of the material upon which the challenged decision had been made. Moreover, upholding the Commission’s argument would give rise to a two-stage enquiry on the merits of the case: first, without the record to determine whether the applicant had made out a prima facie case. If the applicant clears that hurdle, the second stage enquiry then follows to finally determine the merits, this time with the benefit of the record which had now been made available. The proposed scenario, for which there appears to be no justification in logic, is clearly unsustainable. Finally, the argument under consideration is not supported by Rule 53. In terms of this rule, the obligation to produce the record automatically follows upon the launch of the application, however ill-founded that application may later turn out to be.”

 

[22]   Reference is also made to the majority judgement of  the honourable Constitutional Justice Jafta in Competition Commission of South Africa v Standard Bank of South Africa Limited; Competition Commission of South Africa v Standard Bank of South Africa Limited; Competition Commission of South Africa v Waco Africa (Pty) Limited and Others[19] where it was held:

 

“[120] This finding is entirely consistent with what the Supreme Court of Appeal and this Court have said about the importance of the rule 53 record and its availability to litigants.  This is because a distinction must be made between the jurisdiction of the forum to hear the review application and the merits of the review application.  If a review application is launched in a forum that enjoys jurisdiction, then a party is entitled to the record even if their grounds of review are meritless.  As the Supreme Court of Appeal put it, “the obligation to produce the record automatically follows upon the launch of the application, however ill-founded that application may later turn out to be”.[146]  This is because, as recognised by the majority decision in Helen Suzman, rule 53 envisages the grounds of review changing after the record has been furnished. The record is essential to a party’s ability to make out a case for review.  It is for this reason that a prima facie case on the merits need not be made out prior to the filing of record.

 

[23]   In the minority judgement of President of the Republic of South Africa v Democratic Alliance and Others[20] the Honourable Constitutional Justice Jafta reiterated the respondents’ obligation to file the rule 53 record:

 

“[46] The institution of the review application by the Democratic Alliance in terms of rule 53 automatically triggered certain procedural rights in its favour and imposed obligations upon the President, in his capacity as the decision-maker.  From the date of service of the papers on him, the President was under a duty to despatch a record of proceedings relating to the impugned decision to the registrar of the High Court in which the review was launched. The President was obliged to do so within 15 days.[21]”

 

and:

 

“[56] The Democratic Alliance too is mistaken in asserting that the Court would have to pronounce on the merits of the review in determining the scope of rule 53.  The interlocutory application had no bearing on whether the impugned decisions were reviewable.  The scope of rule 53 may be determined with reference to its language to which I shall return later.”[22]

 

and further:

 

“[61] But of more importance is the fact that if the High Court’s judgment is left intact, the President would be placed in a very difficult position in future should his decisions to appoint or dismiss a Minister be challenged on review.  The untenable situation he would find himself in stems from both the scheme of rule 53 and the decision of the High Court.  As stated, under rule 53 once the review papers are served on the President, he is obliged to submit a record to the Registrar.  What triggers this obligation is the service of the papers.”

 

[24]   Both respondents have argued that the rule 53 record will not assist the court to adjudicate upon their submission that POLMED is neither an Organ of State nor a private party exercising a public power, and that POLMED’s decision therefor falls outside of the scope of PAJA. POLMED argued that “The use of the rule 53 is challenged directly in the main application and in these proceedings. This is the core issue. This is a dispute raised by the applicants as a substantive defence in the main application and by means of the counter application. A refusal of the relief in these proceedings would dispose of the main application. It is therefore more than just an interlocutory application.”

 

[25]   I am of the view that the request of the respondents that the court at this stage, in an interlocutory application, adjudicate upon defences raised in respect of the merits of the main application, is inappropriate and a court should not be inclined to accede to such request. This court at this stage do not know what the nature and the content of the documents are forming part of the Rule 53 record. The respondents may be correct with their submissions, but it may also be that they are not correct. It may be that the applicants find something within the rule 53 record which they can  use in its review application to counter these submissions of the respondents. This will only become evident after disclosure of the rule 53 record and after the applicants have amplified their founding papers and amended its notice of motion if deemed necessary. POLMED’s submission that the present is more than an interlocutory application, is exactly what should be prevented at this stage of the review proceedings. As I have indicated above, the applicants’ founding affidavit and notice of motion in the main application are not even finalised yet.

 

[26]   There is no cogent reason why this court should make findings contrary to the acceptable principles referred to above. In the premises I believe both POLMED and Medscheme’s attack in respect of the merits of the review application is premature. Once the rule 53 the record has been filed and the founding affidavit and notice of motion finalised before the court, the court will be able to properly adjudicate upon the attacks now raised in respect of the merits of the review application.

 

[27]   There is another reason why I believe that the Respondents should not be allowed to mount these attacks at this stage.  In the judgement of Constitutional Justice Thereon in Mamadi and Another v Premier of Limpopo Province and Others[23] where the Constitutional Court inter alia discussed the provisions of rule 2  of the Administrative Review rules (PAJA Rules) the Court held as follows:

 

“[31] …That rule is framed in peremptory language and provides, in relevant part, that:

 

“[a]n application for judicial review in terms of the Act that is instituted in the High Court, in circumstances where no record or only part of the record has been furnished, shall be brought in terms of rule 6 or 53 of the High Court rules, at the election of the applicant, as the case may be.”[27] 

 

As with rule 53, the peremptory language of this rule should be understood against its purpose.[24]

 

[32]    Administrative decisions, until set aside by a court, exist in fact and have legal consequences.[25] There is, accordingly, a need to have recourse to a procedure that may expeditiously set aside unlawful administrative action. Trial proceedings are in general lengthier than application proceedings and, as a result, are in general unsuitable for the expeditious adjudication of review proceedings. The PAJA Rules confer an entitlement on litigants to institute review proceedings by way of rule 6 or rule 53 of the Uniform Rules of Court, so that their section 33 rights are expeditiously vindicated if the administrative decision is shown to be unlawful. But it does not follow that litigants cannot forego this entitlement.”

 

[28]   I also refer to the majority judgement of Constitutional Justice Jafta in Competition Commission of South Africa v Standard Bank of South Africa Limited; Competition Commission of South Africa v Standard Bank of South Africa Limited; Competition Commission of South Africa v Waco Africa (Pty) Limited and Others[26] where it was stated as follows:

 

“[121] I accept that there are good reasons for the obligation to produce the record following automatically upon the launching of a review application.  Delaying the production of the record is inimical to the exercise of the courts’ constitutionally mandated review function.  A lengthy delay may impede the courts’ ability to assess the lawfulness, reasonableness and procedural fairness of the decision in question and undermine the purpose of judicial review.[27]  One reason for this is that documents and evidence, which should be included within the rule 53 record, may be lost if there is a considerable delay in the production of the review record.[28] This does not, however, imply that a court should order production of a rule 53 record without first determining its competence to hear the review application. “

 

[29]   The reference to “..without first determining its competence to hear the review application. “ in the quotation relates to a challenge to jurisdiction and is not applicable in the present matter.

 

[30]   Should the court be inclined to entertain challenges to produce the Rule 53 record directed at the merits of the review application at this stage, it will undermine the urgency of and expeditious adjudication of review proceedings. In addition, sanctioning such a procedure may create a precedent that can open the doors for potential abuse by respondents in review proceedings who already at this stage, before the rendering of the Rule 53 record would raise defences to the merits of the review application, whether meritless or not,  whether by way of opposition to an interlocutory application to compel or whether by way of an application for a declarator and through such actions unnecessary cause a considerable delaying the review proceedings. It would not be in the interests of justice to sanction such procedure.

 

[31]   I have also considered whether it would be in the interests of justice to allow the counter application and defences on the merits of the main application at this stage in the interlocutory application.

 

[32]   In the minority judgement of Acting Constitutional Justice Kollappen in Social Justice Coalition and Others v Minister of Police and Others[29]  he referred to various authorities in respect of the High Court’s inherent jurisdiction as provided in section 173 of the Constitution. Inter alia he referred to Eke v Parsons[30]  where the Constitutional Court held: .

 

“Without doubt, rules governing the court process cannot be disregarded. They serve an undeniably important purpose. That, however, does not mean that courts should be detained by the rules to a point where they are hamstrung in the performance of the core function of dispensing justice. Put differently, rules should not be observed for their own sake. Where the interests of justice so dictate, courts may depart from a strict observance of the rules. That, even where one of the litigants is insistent that there be adherence to the rules. Not surprisingly, courts have often said ‘[i]t is trite that the rules exist for the courts, and not the courts for the rules’.

 

and continues to state[31] that under our constitutional dispensation, the object of court rules is twofold. The first is to ensure a fair trial or hearing. The second is to ‘secure the inexpensive and expeditious completion of litigation and . . . to further the administration of justice’. Kollappen J then with reference to various authorities discusses the  inherent jurisdiction that vests in the superior courts in South Africa. In terms of this power, the High Court has always been able to regulate its own proceedings for several reasons, including catering for circumstances not adequately covered by the Uniform Rules and generally ensuring the efficient administration of the courts’ judicial functions. Kollappen J inter alia held as follows:

 

“[54] The Rules of court provide both details of substance and of procedure that govern the litigation of disputes and it would be fair to say that those rules seek to broadly achieve the fair and efficient management of the litigation process. Fairness is ensured by allowing the proper participation of parties and the full ventilation of issues and efficiency is advanced through the regulation of timelines and time periods that apply in the litigation process.

 

And,

 

[72] This Court in SABC,[32] described the provision as an important one, pointing out that the only qualification on the exercise of the power contained in section 173 was that the Court must take into account the interests of justice. This Court said in that context:

 

“Courts, therefore, must be independent and impartial. The power recognised in section173 is a key tool for courts to ensure their own independence and impartiality. It recognises that courts have the inherent power to regulate and protect their own process. A primary purpose for the exercise of that power must be to ensure that proceedings before courts are fair. It is therefore fitting that the only qualification on the exercise of that power contained in section 173 is that courts in exercising this power must take into account the interests of justice.”[33]

 

[73] This Court went on to state that:

 

“In my view it must be added that the power conferred on the High Courts, Supreme Court of Appeal and [the Constitutional Court] in section 173 is not an unbounded additional instrument to limit or deny vested or entrenched rights. The power in section 173 vests in the judiciary the authority to uphold, to protect and to fulfil the judicial function of administering justice in a regular, orderly, and effective manner. Said otherwise, it is the authority to prevent any possible abuse of process and to allow a Court to act effectively within its jurisdiction. However, the inherent power to regulate and control process and to preserve what is in the interests of justice does not translate into judicial authority to impinge on a right that has otherwise vested or has been conferred by the Constitution.”[34]

 

[33]   I am satisfied that it would not be in the interests of justice to entertain the counter application and defences on the merits of the main application at the interlocutory application stage.

 

[34]   As I have indicated above, allowing such at this stage would mean that should I find against the Respondents at this stage it would inter alia have the effect that there would at this stage be a hearing of the main application without the record and then later a hearing of the main application with the rule 53 record. I am of the opinion that should same be allowed at this stage, the efficiency that is advanced through the regulation of timelines and time periods that apply in the review process through  rule 53, the purpose of rule 53 to achieve justice in review applications in a regular, orderly and effective manner and the purpose to ‘secure the inexpensive and expeditious completion of litigation and . . . to further the administration of justice’ will not be achieved.

 

[35]   In making this finding I do not find that a respondent in review proceedings is always compelled to disclose all documents forming part of the record. There may be valid reasons why the record or portions thereof should be disclosed.[35] For example it has been held that privileged information may be excluded from the record[36] and that the whole record of the proceedings sought to be corrected or set aside, whether or not it is relevant to the application for review, need not be furnished: only that part of the record relevant to the decision or ruling sought to be reviewed need be furnished. [37] In these circumstances the nature of the documents, the subject of the rule 53 record is attacked, not the applicants’ entitlement to bring the review application on the merits.

 

 [36]  In the present matter neither of the Respondents have raised any objection in respect of the nature of the documents forming part of the rule 53 record. They do not premise their objection on relevance or privilege and have not raised any other objection why the rule 53 record should not become part of the public domain.

 

[37]   In view of this court’s finding above it is not necessary for this court to pronounce on any of the other submissions. The court that will hear the main application for review will have to decide on whether POLMED is a private body and whether its decisions are subject to review.

 

[38] Accordingly I make the following order:

 

[38.1] The First Respondent (POLMED) is ordered to produce a record in terms of Rule 53(1)(b) of the Uniform Rules of Court within 10 days from date of this order as required in terms of the Notice of Motion filed in the main application for review;

 

 

P J VERMEULEN

Acting Judge of the High Court

Gauteng Division, Pretoria

 

Appearances

Counsel appearing on behalf of Applicant:	ADV. JG WASSERMAN SC     ASSISTED BY ADV. A GOVENDER     ADV. S TSHIKILA
Attorney for Applicant:	FAIRBRIDGES WERTHEIM BECKER ATTORNEYS
Counsel appearing on behalf of 1st Respondent:	ADV. E C LABUSCHAGNE ASSISTED BY ADV I HLALETHOA
Attorney for respondent:	MALULEKE INCORPORATED
Counsel appearing on behalf of 2nd Respondent:	ADV. S MOHAPI
Attorney for respondent:	WERKSMANS ATTORNEYS

Date of Hearing: 19^TH OCTOBER 2022

 

Judgment delivered: 9^th May 2023

 

---