C.P.K and Others v Mackenzie and Others (3572/2021) [2022] ZAECMKHC 96 (1 November 2022)

C.P.K and Others v Mackenzie and Others (3572/2021) [2022] ZAECMKHC 96 (1 November 2022)

The court held that Rule 36(4) permits a party to request medical records relevant to the assessment of damages, but does not authorize inspection of all records nor carte blanche access to records irrespective of relevance. The notices issued by the respondents were overbroad, seeking all medical records without limitation to relevance or time period, and thus infringed the applicants' and the deceased's rights to privacy and dignity. The rule does not provide for inspection, only for making available records that are relevant and accessible. The court found that the applicants' objections were valid, and the respondents' notices were irregular and must be set aside. Costs were awarded...

Citation
[2022] ZAECMKHC 96
Parties
Applicant: C[....] P[....] K[....]; Applicant: E[....] G[....] K[....]; Applicant: J[....] M[....] K[....]; Respondent: David Mackenzie; Respondent: St Andrews College; Respondent: Alan Thompson; Respondent: St Andrews College Council; Respondent: The Minister of Basic Education, Matsie Angelina Motshega; Respondent: The MEC for Education Eastern Cape, Fundile David Gade; Respondent: The South African Council for Educators
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
1 November 2022
Case Number
3572/2021
Procedural Posture
Civil Interlocutory Application / Application to Set Aside Notices Delivered Under Rule 36(4) as Irregular
Outcome
Application granted; respondents' notices declared irregular and set aside. Costs awarded to applicants.
Judges
T.V Norman
Legal Topics
Uniform Rule 36 4, Medical Records Disclosure, Privacy and Dignity, Damages Assessment, Procedural Irregularity
Civil Procedure Family and Children Uniform Rule 36 4 Medical Records Disclosure Privacy and Dignity Damages Assessment Procedural Irregularity

Case Brief

Summary, issues, holding and outcome

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Parties

C[....] P[....] K[....]

Applicant

E[....] G[....] K[....]

Applicant

J[....] M[....] K[....]

Applicant

David Mackenzie

Respondent

St Andrews College

Respondent

Alan Thompson

Respondent

St Andrews College Council

Respondent

The Minister of Basic Education, Matsie Angelina Motshega

Respondent

The MEC for Education Eastern Cape, Fundile David Gade

Respondent

The South African Council for Educators

Respondent

Procedural Posture

Civil Interlocutory Application / Application to Set Aside Notices Delivered Under Rule 36(4) as Irregular

Legal Issues

  1. 1 Whether the respondents' notices requesting inspection of all medical and psychological records under Rule 36(4) are irregular.
  2. 2 Whether Rule 36(4) permits inspection of medical records or only their production.
  3. 3 Whether the request for all medical records infringes the applicants' and third parties' rights to privacy and dignity.

Ratio Decidendi

The court held that Rule 36(4) permits a party to request medical records relevant to the assessment of damages, but does not authorize inspection of all records nor carte blanche access to records irrespective of relevance. The notices issued by the respondents were overbroad, seeking all medical records without limitation to relevance or time period, and thus infringed the applicants' and the deceased's rights to privacy and dignity. The rule does not provide for inspection, only for making available records that are relevant and accessible. The court found that the applicants' objections were valid, and the respondents' notices were irregular and must be set aside. Costs were awarded...

Court Disposition

Application granted; respondents' notices declared irregular and set aside. Costs awarded to applicants.

Orders

  • The two notices delivered by the respondents in terms of Rule 36(4) dated 19 November 2021 are declared irregular and are set aside.
  • The second and third respondents are ordered to pay the costs of this application.