Phodiclinics (Pty) Ltd v Pinehaven Private Hospital (Pty) Ltd and Others (594/2010) [2011] ZASCA 163; [2011] 4 All SA 331 (SCA) (28 September 2011)

Phodiclinics (Pty) Ltd v Pinehaven Private Hospital (Pty) Ltd and Others (594/2010) [2011] ZASCA 163; [2011] 4 All SA 331 (SCA) (28 September 2011)

The Supreme Court of Appeal held that the Head of Department made a composite decision regarding both applications for private hospitals, and the appellant was competent to appeal against both the refusal of its own application and the approval of the respondents' application. The court found that necessity is the...

Source-derived case information.

Citation
[2011] ZASCA 163
Parties
Appellant: Phodiclinics (Pty) Ltd; Respondent: Pinehaven Private Hospital (Pty) Ltd; Respondent: Community Hospital Group (Pty) Ltd; Respondent: Community Investment Holdings (Pty) Ltd; Respondent: Gauteng Provincial Government; Respondent: Member of the Executive Council for Health, Gauteng; Respondent: Chairperson of the Appeals Advisory Committee of the Department of Health, Gauteng; Respondent: Head of Department, Gauteng Department of Health
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 September 2011
Case Number
594/2010
Procedural Posture
Civil Appeal / Appeal From South Gauteng High Court, Johannesburg
Outcome
Appeal upheld; high court order set aside and replaced with remittal for reconsideration.
Judges
Mthiyane, Maya, Cachalia, Bosielo, Seriti
Legal Topics
Review of Administrative Action, Procedural Fairness, Substitution Vs Remittal, Health Facility Regulation
Administrative Law Civil Procedure Review of Administrative Action Procedural Fairness Substitution Vs Remittal Health Facility Regulation

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Summary, issues, holding and outcome

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Parties

Phodiclinics (Pty) Ltd

Appellant

Pinehaven Private Hospital (Pty) Ltd

Respondent

Community Hospital Group (Pty) Ltd

Respondent

Community Investment Holdings (Pty) Ltd

Respondent

Gauteng Provincial Government

Respondent

Member of the Executive Council for Health, Gauteng

Respondent

Chairperson of the Appeals Advisory Committee of the Department of Health, Gauteng

Respondent

Head of Department, Gauteng Department of Health

Respondent

Procedural Posture

Civil Appeal / Appeal From South Gauteng High Court, Johannesburg

Legal Issues

  1. 1 Whether the appellant was competent to appeal against the approval of the respondents' application for a private hospital.
  2. 2 Whether necessity is the sole criterion for approval under regulation 7 of the Regulations Governing Private Hospitals.
  3. 3 Whether identification of a specific site is required at the permission stage under regulation 7.

Ratio Decidendi

The Supreme Court of Appeal held that the Head of Department made a composite decision regarding both applications for private hospitals, and the appellant was competent to appeal against both the refusal of its own application and the approval of the respondents' application. The court found that necessity is the sole criterion for approval under regulation 7, but identification of a specific site is not required at the permission stage. The failure to serve the appeal on affected parties did not invalidate the appeal, but the procedure adopted by the MEC was procedurally unfair, warranting the setting aside of the decision and remittal for reconsideration. The court rejected the...

Court Disposition

Appeal upheld; high court order set aside and replaced with remittal for reconsideration.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The order of the high court is set aside and replaced with an order reviewing and setting aside the appeal decision of the second respondent dated 28 June 2007.