Dube v Member of Executive Council (6279/2017) [2018] ZAGPJHC 449 (26 April 2018)

Dube v Member of Executive Council (6279/2017) [2018] ZAGPJHC 449 (26 April 2018)

The court held that while the hospital's inability to produce the records is deplorable and may constitute a breach of statutory obligations, rule 35 only imposes a duty to discover documents actually in possession. The respondent made a frank disclosure that the records could not be found and tendered to disclose them if located. There was no evidence that the respondent's affidavit was untruthful. The court found that rule 35 does not provide a remedy for disciplining state officials for poor record keeping, and other remedies may exist outside the scope of rule 35. Accordingly, the application to compel discovery was dismissed.

Citation
[2018] ZAGPJHC 449
Parties
Applicant: Brilliant Dube; Respondent: Member of Executive Council
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
26 April 2018
Case Number
6279/2017
Procedural Posture
Civil Application / Interlocutory Application to Compel Discovery
Outcome
Application dismissed.
Judges
Roland Sutherland
Legal Topics
Discovery of Documents, Medical Negligence, Uniform Rule 35, Hospital Record Keeping
Civil Procedure Delict Discovery of Documents Medical Negligence Uniform Rule 35 Hospital Record Keeping

Case Brief

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Parties

Brilliant Dube

Applicant

Member of Executive Council

Respondent

Procedural Posture

Civil Application / Interlocutory Application to Compel Discovery

Legal Issues

  1. 1 Whether the respondent can be compelled under rule 35 to discover hospital records it claims cannot be found.
  2. 2 Whether failure to produce records constitutes a breach of legal obligation under the discovery rules.

Ratio Decidendi

The court held that while the hospital's inability to produce the records is deplorable and may constitute a breach of statutory obligations, rule 35 only imposes a duty to discover documents actually in possession. The respondent made a frank disclosure that the records could not be found and tendered to disclose them if located. There was no evidence that the respondent's affidavit was untruthful. The court found that rule 35 does not provide a remedy for disciplining state officials for poor record keeping, and other remedies may exist outside the scope of rule 35. Accordingly, the application to compel discovery was dismissed.

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • No order as to costs.