M v Member of the Executive Council for Health of the Gauteng Provincial Government (38426/14) [2018] ZAGPJHC 538 (15 August 2018)

M v Member of the Executive Council for Health of the Gauteng Provincial Government (38426/14) [2018] ZAGPJHC 538 (15 August 2018)

The court found that while the respondent is statutorily obliged to maintain health records, Rule 35 only requires a party to declare the true state of affairs regarding discovery at the time it is demanded. The respondent provided affidavits stating that the documents could not be found despite diligent searches. There was no evidence to suggest that these affidavits were false or mistaken. The court agreed with the reasoning in Dube v Member of the Executive Council, holding that Rule 35 does not provide a remedy for poor record-keeping or breach of statutory duties, and that compelling production in these circumstances would be futile. Accordingly, the application to compel production...

Citation
[2018] ZAGPJHC 538
Parties
Applicant: N M; Respondent: Member of the Executive Council for Health of the Gauteng Provincial Government
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
15 August 2018
Case Number
38426/14
Procedural Posture
Civil Application / Interlocutory Application to Compel Production of Documents Under Rule 35(3)
Outcome
Application dismissed with costs.
Judges
P.A. Meyer
Legal Topics
Discovery of Documents, Rule 35 Uniform Rules, Medical Negligence, Statutory Record Keeping
Civil Procedure Discovery of Documents Rule 35 Uniform Rules Medical Negligence Statutory Record Keeping

Case Brief

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Parties

N M

Applicant

Member of the Executive Council for Health of the Gauteng Provincial Government

Respondent

Procedural Posture

Civil Application / Interlocutory Application to Compel Production of Documents Under Rule 35(3)

Legal Issues

  1. 1 Whether the respondent is obliged to produce medical records requested under Rule 35(3) of the Uniform Rules of Court.
  2. 2 Whether the respondent's explanation that the documents cannot be found is sufficient to excuse non-production.
  3. 3 Whether the applicant is entitled to relief compelling production of documents despite statutory obligations to maintain health records.

Ratio Decidendi

The court found that while the respondent is statutorily obliged to maintain health records, Rule 35 only requires a party to declare the true state of affairs regarding discovery at the time it is demanded. The respondent provided affidavits stating that the documents could not be found despite diligent searches. There was no evidence to suggest that these affidavits were false or mistaken. The court agreed with the reasoning in Dube v Member of the Executive Council, holding that Rule 35 does not provide a remedy for poor record-keeping or breach of statutory duties, and that compelling production in these circumstances would be futile. Accordingly, the application to compel production...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.