Information Officer of Department of Health, Mpumalanga and Another v Dube (507/2021) [2024] ZAMPMBHC 89 (20 February 2024)

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MBOMBELA (MAIN SEAT)

CASE NUMBER:

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

20 February 2024

In the matter between: -

THE INFORMATION OFFICER OF THE DEPARTMENT

OF HEALTH, MPUMALANGA

First Applicant

DR SAVERA MOHANGI

Second Applicant

and

SESINYANA DUMISILE DUBE

Respondent

In re:

SESINYANA DUMISILE DUBE

Applicant

OF HEALTH, MPUMALANGA

Respondent

JUDGMENT

GREYLING-COETZER AJ

Introduction

[1] This is an application for the rescission of an order that was granted by Mashile J on 29 March 2021 (“the order”). The Applicants being the Information Officer of the Department of Health, Mpumalanga and the Department’s former Information Officer, Dr Mohangi.

[2] The rescission is sought in terms of Rule 42(1)(a) on the basis that the order was erroneously sought and granted in the absence of the applicant and a party affected thereby.

[3] In terms of the order, the first applicant was directed to provide copies of all medical records relating to medical examinations/treatments received by PN Dube at Themba Hospital in respect of her disability, as well as all medical records, clinical notes, labour records and pre- and post-natal records of FT Ndubane and PN Dube in respect of the birth of the child born on 3 August 1992 in the Themba Hospital. The court ordered that same shall be provided within 10 (ten) days.

[4] The applicant seeks condonation for the delay in bringing the application and contend that the order is tainted by irregularity. According to the applicant, Section 78 of the Promotion of Access to Information Act 2 of 2000 (“PAIA”) was not complied with in that: there was a non-joinder of the relevant authority, being the MEC of the Department of Health (“MEC”); and the application was not compliant with The Promotion of Access to Information Rules (“2009-Rules”).[1]

[5] The respondent opposed the application on the basis that the applicants erroneously rely on Rule 42(1)(a) in circumstances where the order was not granted in their absence; that the rescission application has not been brought within a reasonable time; that the deponent to the founding affidavit lacks personal knowledge of the factual allegations relied on, and therefore the content is inadmissible hearsay; and, that there has not been a non-joinder as PAIA does not require the MEC to be joined to the proceedings.

Common cause facts

[6] The respondent sought access to information held by the Department of Health by directing an initial request (Form A) for information to the information officer and in line with the relevant provisions of PAIA.

[7] The information officer failed to notify the respondent of her decision and the request was therefore deemed to be refused in terms of Section 27 of PAIA.

[8] An internal appeal (Form B) was lodged and directed to the Information Officer. No decision as communicated and it was deemed refused as contemplated by Section 77(7) of PAIA.

[9] The applicant then launched an application in terms of Section 82 of PAIA. The application was launched against the Information Officer of the Department of Health, Mpumalanga as respondent. It was duly served on 17 February 2021. The first respondent failed to defend the application.

[10] The application was heard by Mashile J. The order was granted on an unopposed basis on 29 March 2021.

[11] The court order together with a letter of demand was served by hand upon the first applicant on 22 April 2021.

[12] On 24 June 2021 the respondent applied to court for the joinder of Dr Savera Mohangi as second respondent, in her personal capacity, for the purpose of a contempt application.

[13] The first applicant has still not complied with the order.

Factual in support of the condonation

[14] In October 2022, the first applicant terminated its former external attorneys of record’s mandate, and new attorneys were appointed between October 2022 and January 2023.

[15] During May 2023 the first applicant mandated its current attorneys of record to attend to all past and future requests, and in particular to investigate the court orders obtained by the respondent. It is during this process, and on/or about June 2023, when its attention was drawn to the judgment, of Singwane v Medical Superintendent of the Matsulu Community Health Clinic and Others (3261/2020, 1051/2021, 1063/2021, 299/2021, 300/2021, 579/2021, 581/2021) [2021] ZAMPMBHC 22 (22 June 2021). Herein the court concluded that in a PAIA application where the decision of the relevant authority is reviewed, the relevant authority ought to be

joined to the proceedings.

[16] On/or about 1 June 2023 the first applicant’s current attorneys of record met with counsel to consult about the rescission mandate and proposed way forward. Consultation took place with Advocate Ndlovu on 28 June 2023 for the purpose of research and preparation of an application to set aside these judgments.

[17] On/or about 9 July 2023 a mandate was issued, authorizing counsel to be instructed to prepare and finalise the rescission application. The founding affidavit was deposed to on 30 August 2023, with the deponent explaining that due to work commitments it was not possible to do so earlier.

Rule 42(1)(a)

[18] Rule 42(1)(a) provides that a judgment or order may be rescinded or varied if such an order or judgment was erroneously sought or erroneously granted in the absence of a party affected thereby. As Rule 42 does not lay down a time limit within which the application must be brought. It is accepted that it has to be brought within a reasonable time.[2]

[19] A judgment to which a party is procedurally entitled cannot be considered to have been sought or granted erroneously in terms of

Rule 42(1)(a) by reason of facts of which the Judge was unaware at the time the order was granted. The existence of non-existence of a defence on the merits is an irrelevant consideration, and if subsequently disclosed, cannot transform a validly obtained judgment

into an erroneous judgment.[3]

[20] An order may be said to have been erroneously granted if, at the time of issuing the order, a procedural irregularity was committed or an error was made during the proceedings which is patent in the record.[4]

[21] It is trite that a rescission application in terms of Rule 42(1)(a) or the common law has to be brought within a reasonable time.[5]

Unreasonable delay

[22] It is apposite to the first answer the question whether this application was brought within a reasonable time. This rescission application was brought two years and two months later after the order was served upon the first applicant.

[23] In explaining the delay, the applicants contend that despite the application being served in February 2021, and the subsequent order being served on April 2021, there was a failure by the Department to deal with orders allegedly because of administrative difficulties that were experienced by the Department.

[24] The applicants proceeded to explain that a designated person was appointed during or about July 2021 to attend to the administration relating to requests for information generally. It is averred that during October 2022 the mandate of the first applicant’s former attorneys of record was terminated, and between the period October 2022 and August 2023, it appointed new legal representatives, where after it attended to consultations, considered the application and provided instruction for the rescission application to be launched.

[25] It was contended on behalf of the respondent that guidance should be taken from the time allowed in terms of Rule 31(2)(b) for applying

for the rescission as to what constitute a reasonable period of time. In this respect the respondent placed reliance on Basson N.O. and Another v Orcrest Properties (Pty) Ltd and Two Related Matters [2016] (4) All SA 368 (WCC).[6]

[26] It was held in SA Express Ltd v Bagport (Pty) Ltd 2020 (5) SA 404 (SCA)[7] that an applicant for condonation is required to give a full and reasonable explanation for the delay that had occurred, and that the explanation must cover the entire period of the delay.[8]

[27] The applicants’ explanation does not cover the full period of delay, nor does it contain detail about how it came about, notwithstanding service of both the application and the order, the Department took more than two years to seek the recission of the order.

[28] The applicant does not explain the following periods:

28.1 the period April 2021, when the court order was received, up until July 2021, when the designated person was appointed to assist with all requests for information;

28.2 the period July 2021 when the designated person was appointed until to October 2021, the date of termination of the first applicant’s erstwhile attorneys of record;

28.3 the period October 2022 to January 2023, other than stating that during this period new attorneys were appointed;

28.4 the period January 2023 to May 2023, being the period since the appointment of its new attorneys to when it mandated its current attorneys of record; and

28.5 the period between 1 June 2023 up until 30 August 2023 was scantly explained by reference to isolated periods of engagements in respect of the preparation of this application.

[29] Aforesaid leaves approximately eighteen months out of two years and two months unexplained.

[30] Essentially, the majority of the allegations explaining the delay is attributed to excusing the applicants due to budgetary constraints and administrative difficulties from acting diligently with court orders. In this respect the remark by the court in MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd[9] is instructive: –

“To demand this of government is not to stymie it by forcing upon it a senseless formality. It is to insist on due process, from which there is no reason to exempt government. On the contrary, there is a higher duty on the state to respect the law, to fulfill procedural requirements and to treat it respectfully when dealing with rights. Government is not an indigent or bewildered litigant, adrift on the sea of litigious uncertainty, to whom the court must extend a procedural-circumventing lifeline. It is the Constitution’s

primary agent. It must do right and it must do it properly.”

[31] What the applicants explanation demonstrate is that it did not immediately seek the rescission of the order. The Department they never gave it much attention, or even considered the court order or the application much less compliance with the order. Nor did they give much attention to the over three hundred and fifty orders granted in similar circumstances. Only when the Department’s

attention was directed to Singwane in June 2023 (which judgment was handed down in June 2021), it decided to seek the rescission of the order as one of the over 350

other orders so granted.

[32] For the aforesaid reasons, I conclude that the rescission application has not been brought within a reasonable time. Aforesaid should be dispositive of this application. This aside, I proceed to consider the remaining issues to the extent that it may be necessary to do so.

Non-joinder

[33] The applicant contends that the respondent should have cited the Relevant Authority, in terms of Section 78 of PAIA, as it was the deemed refusal decision of the Relevant Authority which resulted in the application to court for appropriate relief as contemplated by Section 82 of PAIA. The applicant argues the Relevant Authority has a direct and substantive interest in the proceedings in these circumstances.

[34] “Relevant authority” is defined in Section 1 of PAIA, in relation to a public body as defined in paragraph (a) of the definition of “public body” in Section 1 of PAIA, to mean the MEC for that public body or the person designated in writing by that member.

[35] In terms of Section 75 of PAIA, an internal appeal directed to the relevant authority must be delivered to the information officer of the public body concerned.

[36] The respondent argues that PAIA does not require the MEC to be cited as a party and the Information Officer has at all times been designated as the person to whom an internal appeal must be directed. Further, that in terms of the applicable Promotion of Access to Information Rules (“2019-Rules”)[10], an application to court needs to be served on the Information officer. No mention is made of the MEC.

[37] It is contended on behalf of the applicants, and as held in Singwane, that in the absence of an express provision in the Act that the relevant authority must be cited as a respondent, the common law

rules pertaining to joinder of parties apply. Therefore, the MEC in this instance is the relevant authority and must be joined as a party, in view of which the order, which is sought to be rescinded, is tainted with a procedural irregularity.

[38] The necessity to cite the MEC has also dealt with by the specially constituted court in Paul v MEC for Health, Eastern Cape Provincial Government and Others; Mbombo v MEC for Health, Eastern Cape Provincial Government and Others; Ncumani v MEC for Health, Eastern Cape Province and Others.[11] The court held inter alia:

“[32] What immediately becomes clear from the correct reading of PAIA and the rules is that at no stage does a requester have to communicate with the relevant appeal authority. When the request for access is made it is made to the information officer. When the appeal against refusal, actual or deemed refusal, is made that appeal is sent to the information officer. Finally when the section 78 court application is ultimately launched there is only one respondent and it is still the information officer in terms of subrules 3 (5) and (6) of the PAIA rules.

[33] I pause here to emphasize that the whole scheme of PAIA is such that there is no basis for citing the relevant appeal authority in the court application in terms of section 78. By the same token any relief sought against the relevant appeal authority is inappropriate and should ordinarily result in the dismissal of the application in all cases where the internal appeal was not sent to the information officer. However, in my view, if proper procedure is complied with when the request is made and the internal appeal is sent to the information officer to whom the request for access was made, the court may not dismiss the application simply because the appeal authority is also cited and some form of relief against him or her, which is obviously incompetent is sought. In this event the court can always refuse to grant that particular relief and make an appropriate order for costs.

[40] This brings me to the citation of the first respondent as a party to these proceedings. Besides the fact that a proper appeal being properly lodged should not be lodged with the first respondent (being the MEC), Rule 3(1) provides:

‘An application contemplated in section 78 of the Act must be brought on notice of motion that must correspond substantially in accordance

with the form set out in the annexures to these rules, addressed to the information officer or the head of a private body, as the case may be.’

There is simply no0 basis for citing the first respondent in an application contemplated in section 78 of PAIA.”

[39] The 2009-Rules relied upon by the court in Paul, have been amended in 2019. The significance for the present purpose being that currently the application is required to be served upon the information officer opposed to being addresses to him or her and the information officer has to inform parties who may have an interest but who have not been cited.

[40] Rule 3(1) and (4) in its current form provides (“2019 Rules”) :-

“(1) An application contemplated in section 78 of the Act must be (a) brought in accordance with, and be governed by (i) rule 6 of the High Court Rules, when brought in the High Court or … and (b) served on (i) the information officer of a public body …”

(4) (u)pon receipt of the application the information officer of a public body or head of private body must provide a copy of the application, under cover of a written notice to all other parties affected by the application who have not been cited therein”.[12]

[41] The court in Paul, in dealing with the submission that the MEC was cited as the Department’s Promotion of Access to Information Manual, directed that an appeal must be delivered or sent to the MEC held further in paragraph [45]:

“The first point to be made is that to the extent that the manual suggests that an internal appeal can be delivered or sent to the executive authority like the first respondent, it is incorrect. The drafters clearly misconstrued the provisions of section 75(1)(b), clear as they are. To the extent that the manual makes provisions which contradict PAIA, it is invalid and therefore its guidance in that regard must not be countenanced. It may therefore not be used as justification for non-compliance with PAIA in sending off the appeal; nor can it be used as the basis for citing the executive authority or seeking relief against him or her”. (own underline)

[42] Based on Section 74 of PAIA the Court in Singwane held that an application to court in terms of Section 78(1) to 78(2)(b), challenge the decision of the Relevant Authority. It further held that:

“[112] Who should then be the respondent in an application in terms of sections 78(1) to 78(2)(b)? It is the relevant authority’s

decision that is challenged. In addition, section 82 provides for relief, not only against information officers – it also

provides for relief against relevant authorities. In the case of an application in terms of sections 78(1) to 78(2)(b), it is the relevant authority’s decision that is challenged. It follows that the relevant authority has a direct and substantial interest in the proceedings and must be joined in the proceedings.

Whether the relevant information officer has to be joined as a respondent because the appeal must be delivered or sent to the information officer of the public body concerned at his or her address, fax number or electronic mail address I do not decide. In my view, a failure to join the information officer in an application in terms of sections 78(1) to 78(2)(b) will not constitute a non-joinder.

[113] In my view, in the absence of an express provision in PAIA that the relevant authority must be cited as respondent, the common law rules pertaining to the joinder of parties apply. In this regard, it was said as follows in Morudi and Others v NC Housing Services and Development Co Limited and Others [2018] ZACC 32 at paras 29 and 30: …”

[43] In this application it was the Relevant Authority’s deemed refusal due to failure to make a decision which led to the application in terms of Section 78(2)(a) of PAIA and relief as contemplated in Section 82 of PAIA.

[44] The court in Singwane did not consider the provisions of the Promotion of Access to Information rules as done in Paul. I am however doubtful having regard to the reasoning that it would have influenced the court in Singwane’s finding on the necessity to cite the MEC.

[45] For the reason that follows it is not necessary to determine whether the specially constituted Court in Paul or the Court in Singwane was correct in their findings. The judgment in Paul was delivered on 29 March 2019. The order by Mashile J was granted on 29 March 2021. The Singwane judgment was delivered on 22 June 2021. Even if the issue of the non-joinder of the MEC was raised by the court mero moto as it is entitled to do (and whether it was done is unknown) the decision of Paul was the relevant authority at the time.

[46] Above is fortified by that which the applicants allege namely that more than three hundred and fifty orders have been made on a similar basis as the order they now seek to rescind. What is further worth mentioning is that the MEC is not the applicant in these proceedings nor is the MEC cited by the applicants.

[47] The applicant has not failed to compliance with pre-emptory statutory requirements. It acted in compliance with PAIA and the applicable 2019-Rules, in applying to court and citing the Information officer only. Thus, the applicant was procedurally entitled to the order in 2019, it had complied with all that is required of him in terms of PAIA and the applicable 2019-Rules.

Absence of any party effected thereby

Absence of the first applicant

[48] It is common cause that the application resulting in the order by Mashile J was served on the applicants. Further, that the applicants did not oppose same.

[49] As argued on behalf of the respondent, physical presence of a party or its representative is not always dispositive of the question whether an order was in their “absence”. In Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State and Others 2021 (11) BCLR 1263 (CC) the Constitutional Court held as follows at paragraph [60]: -

“… [T]he issue of presence or absence has little to do with actual, or physical presence and everything to do with ensuring that proper

procedure is followed so that a party can be present, and so that a party, in the event that they are precluded from participation,

physically or otherwise, may be entitled to a rescission in the event that an error is committed.”

[50] The court proceeded to state the following in respect of Mr. Zuma’s absence having been served with the application: -

“[56] Mr. Zuma alleged that this court granted the order in his absence as he did not participate in the contempt proceedings. This cannot be disputed: Mr. Zuma did not participate in the proceedings and was physically absent … However the words ‘granted in the absence of a party affected thereby’ as they exist in rule 42(1)(a), exist to protect litigants whose presence was precluded, not those whose absence was elected. Those words do not create a ground of rescission for litigants who, afforded procedurally regular judicial process, opt to be absent”.

[51] It is thus not open to the applicants to contend that the order was granted in their absence.

Was the order granted in the absence of a party affected thereby but not cited?

[52] Having concluded as aforesaid, it cannot be sustained that the order was granted in 2019 in the absence of the applicants or any party affected thereby.

[53] In terms of Rule 3(4) of the 2019-Rules, the obligation to inform and provide notice to affected parties who have not been cited therein, befalls the information officer of a public body. Therefore, even if the MEC was not cited, the procedural requirement of notice had been complied with by the respondent in serving the application as it did on the information officer who was obliged to inform other parties affected thereby but not cited.

Costs

[54] There is no reason why costs should not follow the event. What stands to be considered is whether a punitive cost order is justified.

[55] I am not persuaded that it is. However, it should be mentioned that the applicants’ founding affidavit not only leaves much to desire, but is in stark contradiction to the rules of court. It contains eighteen pages of statutory quotations and argument. When it is compared to the heads of argument filed by the applicants, it appears to be, to a large extent, proverbial “cut

and paste job”.

[56] Rule 6(1) specifically requires that an affidavit in support of an application should set out the facts upon which the applicant relies for relief. Said facts must be set out simply, clearly and in chronological sequence without argumentative matter.[13]

Order

[57] I accordingly make the following order: -

1. The application is dismissed with cost.

DATE OF HEARING: 16 November 2023

DELIVERED ON: This judgment was delivered electronically by circulation to the parties’ representatives by way of email and by release to SAFLII. The date and time for delivery is deemed to be at 10h00 on 20 February 2024.

FOR THE APPLICANTS: AB Rossouw SC with Adv JG van den Berg

Instructed by Meintjes and Khoza Attorneys

E-mail: law@meintjieskhoza.co.za

FOR THE RESPONDENT: Adv LA Pretorius with Adv AR Coetsee

Instructed by Appelgryn Potgieter Attorneys

E-mail: info@asplaw.co.za

[1] Rules of procedure for applications to court in terms of Promotion of Access to Information Act 2 of 2000, promulgated under number 32622 GG on 9 October 2009 NO.R.065

[2] First National Bank of South Africa Ltd v Van Rensburg NO and Others 1994 (1) SA 677 (T) at 681

[3] Lodhi 2 Properties Investments CC v Bondev Developments 2007 (6) SA 87 (SCA) paras 25 and 27

[4] Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA)

[5] First National Bank (supra)

[6] At paragraph [38]

[7] At par [34]

[8] See also Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) [2007] ZACC 24; 2008 (2) SA 472 (CC) at par [22] and Laerskool Generaal Hendrik Schoeman v Bastian Financial Services (Pty) Ltd 2012 (2) SA 637 (CC) at par [15]

[9] 2014 (3) SA 481 (CC) at par [82]

[10] Rules of procedure for applications to court in terms of Promotion of Access to Information Act 2 of 2000, promulgated under number 42740 GG on 4 October 2019 NO.R.1284. The rules came into operation on 4 November 2019.

[11] [2019] 3 All SA 879 (ECN)

[12] Rules of procedure for applications to court in terms of Promotion of Access to Information Act 2 of 2000, promulgated under number 32622 GG on 9 October 2009 NO.R.065, Rule 3(5) required the information officer to notify in writing all other persons affected.

[13] Reynolds NO v Mecklenburg (Pty) Ltd 1996 (1) SA 75 (W) at 78I