Mbiko obo Mbiko v MEC for Department of Health, Eastern Cape Province (1150/2021) [2022] ZAECELLC 17 (20 July 2022)

Mbiko obo Mbiko v MEC for Department of Health, Eastern Cape Province (1150/2021) [2022] ZAECELLC 17 (20 July 2022)

The court found that the defendant failed to comply with Rule 35(3) by not providing the requested documents or an affidavit stating their unavailability. The defendant's reliance on PAIA was misplaced, as section 7(1) excludes its application in civil proceedings where discovery is governed by the Uniform Rules. The defendant's technical and obstructive approach was criticized, especially given the nature of the case involving a minor child. The court accepted the submission during argument that the documents may not be in the defendant's possession, and framed the order accordingly. The request for punitive costs was declined, as the court was not persuaded that the defendant's conduct...

Citation
[2022] ZAECELLC 17
Parties
Applicant: Nozizwe Mbiko obo Uviwe Mbiko; Respondent: MEC for Department of Health, Eastern Cape Province
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
20 July 2022
Case Number
1150/2021
Procedural Posture
Civil Application / Application to Compel Discovery Under Rule 35(3)
Outcome
Application to compel granted; costs awarded on the ordinary scale.
Judges
Gqamana
Legal Topics
Discovery Procedure, Rule 35 Application, Access to Medical Records
Civil Procedure Discovery Procedure Rule 35 Application Access to Medical Records

Case Brief

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Parties

Nozizwe Mbiko obo Uviwe Mbiko

Applicant

MEC for Department of Health, Eastern Cape Province

Respondent

Procedural Posture

Civil Application / Application to Compel Discovery Under Rule 35(3)

Legal Issues

  1. 1 Whether the defendant complied with the plaintiff's Rule 35(3) notice for further discovery.
  2. 2 Whether the defendant was obliged to provide the requested medical records or state under oath their unavailability.
  3. 3 Whether the Promotion of Access to Information Act (PAIA) applies to discovery in civil proceedings.

Ratio Decidendi

The court found that the defendant failed to comply with Rule 35(3) by not providing the requested documents or an affidavit stating their unavailability. The defendant's reliance on PAIA was misplaced, as section 7(1) excludes its application in civil proceedings where discovery is governed by the Uniform Rules. The defendant's technical and obstructive approach was criticized, especially given the nature of the case involving a minor child. The court accepted the submission during argument that the documents may not be in the defendant's possession, and framed the order accordingly. The request for punitive costs was declined, as the court was not persuaded that the defendant's conduct...

Court Disposition

Application to compel granted; costs awarded on the ordinary scale.

Orders

  • The defendant is ordered to comply with the plaintiff's Rule 35(3) notice by providing the requested documents or, if unavailable, to file an affidavit stating their unavailability and whereabouts, if known.
  • The defendant is ordered to pay the costs of the application.