James v Balaka District Health Officer (Civil Cause 1 of 2014) [2014] MWHC 498 (1 April 2014)

IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY CIVIL CAUSE NO. 1 OF 2014 BETWEEN BRAN GAMES: 3 seciseacawsncsscsicsivesinemenmonce APPLICANT -and- BALAKA DISTRICT HEALTH ORFIGER 3 scsssssosvevmawrsnwysescsccucemersepsvessecers RESPONDENT CORAM: ~ HON. JUSTICE ZIONE NTABA Mr. K. Mhone, Counsel for the Applicant Not Present, Counsel for the Respondent Mr Nkhwazi, Court Clerk RULING On 22" January, 2014, the Applicant made an ex parte application for leave to apply for judicial review under Order 53 of the 1999 Rules of the Supreme Court, however Justice Mwase ordered that the application be brought inter partes. The matter was then brought inter partes, and the Applicant proceeded and served the Respondent with the inter partes summons as directed by the court. Therefore, the absence of the Respondent is not due to failure by the Applicant to comply with the court order. The application before me was a summons for leave to apply for judicial review which was supported by an affidavit as well as skeleton arguments. The Applicant’s submissions are that the Respondent failed to discharge their public duty, having been approached to provide a medical report that was required by a specialist in the Republic of South Africa who was willing to treat the Applicant. The Respondent declined to give the detailed medical report without sitting down and assessing why it was needed. The Applicant highlighted to the court that they have fulfilled the timing requirement for such an application as it has been brought within three (3) months of the decision being made, that is they filed notice on 21" January, 2014 and the Respondent decision was taken in November, 2013. The Applicant averred that he is a TB patient and was treated by the Respondent both as in patient as well as outpatient and it was the outpatient treatment which was not consistent as his condition worsened. And upon going to seek specialized treatment in South Africa, the specialist requested a detailed medical report regarding drugs given and doses administered. He contended that the matter is a life and death situation which the Respondent does not seem to appreciate. He prayed that the court grant leave for judicial review so that the Respondent can be ordered to prepare a detailed medical report for him to get treatment. And he further prayed that the court when dealing with the judicial review note that special circumstances, have now arise as the specialist he was seeing, has now moved to India, as such whereas he would have managed the bill for South Africa, he will be unable to meet Indian expenses. The court should therefore grant a further order that they should foot the extra expenses to India. THE LAW AND APPLICATION The legal principles regarding an application for leave for judicial review are found in Order 53 r.3 of the Rules of the Supreme Court states that no application for judicial review shall be made unless leave of the Court has been obtained. Justice Mwase in his ruling requested that this matter be heard by way of an inter partes hearing before leave could be granted. He did not expressly decline to give leave but thought a more detailed hearing where both parties could be heard was appropriate. Upon examination of the documents in support of the application and noting my brother judge’s action, this court is satisfied that the Applicant has satisfied the dictates of Order 53 r.3 of the RSC seeking leave for judicial review. Furthermore, this court finds that the Applicant has sufficient interest in the matter in which the application relates as he is the one affected by the non-provision of the medical report by the Respondent. My position is supported by the case of Ombudsman v Malawi Broadcasting Corporation, {1999| MLR 329 where it was held — “applications to move for judicial review are made ex parte to a single judge. The application may be determine without a hearing unless a hearing is requested. This procedure enables the court to deal with such matters more conveniently, expeditiously and cheaply. Leave will be granted if the court, on the materials available before it, is satisfied that there is an arguable case for granting the relief claimed by the applicant. At this stage there is no need for the court to go into the matter in depth.” Furthermore, the Applicant’s submission that their statement be amended to add additional relief is also granted, therefore the Applicant is allowed to amend and add the relief of further costs for the Applicant’s medical bills if he has to undergo treatment in India under Order 53 r.3 (4). CONCLUSION I therefore, grant that the Applicant has leave to apply for judicial review and that the matter be expedited. And that all processes should have their times abridged due to the urgency of the matter. Made in Chambers on 1“ day of April, 2014 at Zomba. Dae Z. J. V Ntaba JUDGE