JUDGMENT. [1] Apart from an order of costs against the respondents on the attorney client

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1 IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE, GRAHAMSTOWN) CASE NO.: 871/2011 Date heard: 23 June 2011 Date issued: In the matter between: DANILE MILI Applicant and MATRON, FORT BEAUFORT HOSPITAL DIRECTOR KOYANA First Respondent Second Respondent JUDGMENT GROGAN, A.J.: [1] Apart from an order of costs against the respondents on the attorney client scale, the applicant initially sought an order in the following terms: 1. The Respondent, through its authorised employees, be directed to provide the Applicant with 1.1 Contents of medical records of Lizole Nohamba; 1.2 The names of the Nurses as well as the Sisters who attended to Lizole 1

2 Nohamba on 17 and 18 January 2011 at Fort Beaufort Hospital; 1.3 The names of the Doctors who attended Lizole Nohamba or who were supposed to attend to Lizole Nohamba on 17 and 18 January 2011 at Fort Beaufort Hospital; 1.4 The name of the Nurse who inserted the drip on Lizole Nohamba; 1.5 Full details of the steps taken by the Doctors and Nurses in order to save Lizole s life. [2] When the matter was heard, Mr Cole, for the applicant, informed me from the bar that prayers 1.1 and 1.5 had been abandoned prayer 1.1 because the respondents have now provided the requested medical records; prayer 1.5 because, as Mr Cole properly conceded, the information specified therein did not amount to a record as contemplated in the Promotion of Access to Information Act 2 of 2000 ( PAIA ), in terms of which the request was made. [3] The Respondents contend that the application falls to be dismissed with costs, also on the attorney client scale, for essentially the following reasons: (i) the applicant did not comply with the requirements of the PAIA; (ii) this noncompliance notwithstanding, the applicant had in fact been provided with all the information requested. [4] The parties insistence on punitive costs orders is based on the submissions that, albeit for different reasons, the application was unnecessary. The applicant contends that, had the respondents diligently executed their obligations under the PAIA, he would not have had to resort to litigation; the respondents that the applicant should have withdrawn the application when it

3 complied with the request and suggested that the application should be withdrawn, with each party paying his own costs. [5] The incident that gave rise to the request for information occurred on 17 January On that day, the applicant visited his infant son at the Fort Beaufort Hospital. The child had been admitted earlier that day. After allegedly being chased away, the applicant returned to the hospital that evening and managed to see the child, despite objections from a nurse. The applicant says he observed that a drip was running uncontrollably too fast into the child. After the drip had run dry, the applicant departed, leaving the child in the presence of his (the child s) mother. That evening, the applicant received a message on his mobile phone from the mother, informing him that there was something she did not understand with the child. When he returned to the hospital next morning, the applicant was told that the child had died. [6] It is unnecessary for present purposes to dwell on the events at the hospital. This application turns solely on whether the applicant is entitled to the information now sought, and on costs. The initial request was made in terms of the PAIA, and the applicant has approached this Court under that Act. [7] Before dealing with the issues raised by this application, it is necessary to briefly outline the steps taken by the applicant to acquire the information sought. On 9 February 2011 the applicant gave notice to the first respondent that he intended suing the Minister of Health, and lodging a complaint with the SA Nursing Council, for the gross negligence which led to Lizole Nohamba s death. In the same letter, he advised the first respondent that he was Lizole s 3

4 biological father, and stated that he would present himself at the hospital the following day to fetch the medical records and other contents of Lizole s medical file and a list of the names of nurses on duty at the time, especially that of the nurse who had administered the drip. On 14 February 2011, the applicant addressed a further letter to the second respondent in Bhisho, enclosing a copy of the aforementioned letter, and stating that he had been advised that the file was in possession of the second respondent. Having received no response from Bhisho, the applicant wrote a further letter on 23 February 2011, now threatening an action to compel disclosure. [8] On 7 March 2011, still having received no response from Bhisho, the applicant gave notice of intended legal proceedings in terms of section 3 of Act 40 of 2002 (sic), again requesting the medical records, failing which we will make an application to Court to compel you, the costs of which will be paid by you on an attorney and client scale. Attached to this letter was a completed copy of Form A of the PAIA, addressed to the first respondent, stating that the capacity in which the request was made was Father, describing the record requested as medical records of Lizole Nohamba who was hospitalised on 17 January 2011 at Fort Beaufort Hospital and died on 18 January 2011, and listing further particulars of record as names of nurses who attended Lizole and who were on duty on 17 & 18 January [9] The present application was launched on 25 March The respondents notice of opposition was filed on 5 May Thereafter, an exchange of correspondence between the respondents attorney of record and the applicant ensued. In the first letter from the respondents attorney, dated 31 May 2011, the applicant was informed for the first time of the respondents

5 view that the application was fatally flawed, but that the respondents had agreed to resolve the matter with a tender to provide the hospital records in return for proof of the mother s consent to disclosure and proof of the applicant s paternity, as well as withdrawal by the applicant of the application on the basis that the parties pay their own costs. This letter evoked a response from the applicant, dated 1 June 2011, denying that the application was flawed and undertaking to furnish a confirmatory affidavit by Lizole s mother, which was subsequently done. [10] After a further letter from the respondents attorney, the applicant wrote inter alia: We have had to bring this application and it is only after the application was brought that you are tendering to give us the Hospital Records. Give us the Hospital records but we will insist on costs on the 23 rd of June 2011 [that is, when matter was set down to be heard by this Court]. [11] On the same day, the respondents attorney wrote to the applicant, enclosing copies of Lizole s medical records, but refusing to release statements made, after receipt of your initial letter of demand and in anticipation of litigation, by the nursing personnel listed hereunder, on the ground that they were privileged. The names of four professional nurses and an assistant nurse were then listed. The respondents also indicated that, in the light of the applicant s insistence on legal costs, answering affidavits would be prepared for the present application. The said affidavits were filed on 17 June [12] On 2 June 2011, the applicant advised that you have not furnished us with X- 5

6 ray reports as well as the names of the Doctors and Sister in charge who were [on] that day and who were supposed to attend to Lizole Nohamba. The applicant also asked why the name of a nurse who he averred was in the ward at the time, and that of the nurse who administered the drip, had not been disclosed. He also asked why he had not been informed of all the steps taken to try and save the life of Lizole Nohamba. [13] The correspondence closed with a reply from the respondent dated 8 June 2011, indicating that we are not certain whether or not the x-ray reports are available, and restating that further information relating to the personnel who attended the child did not constitute a record, and that their statements were privileged. [14] Since no purpose would be served by granting the substantive orders sought by the applicant if the information sought has in fact been supplied, the first issue is whether the information provided by the respondents is sufficient to discharge their obligations under the PAIA. This in turn raises two questions (i) what was the content and nature of the information actually requested by the applicant under the Act? (ii) How much of that information were the respondents required to disclose? [15] The information requested on the applicable form is indicated above. In that document, the applicant inserted the words medical records of Lizole Nohamba. and names of nurses who attended Lizole and who were on duty on 17 & 18 January It is now common cause that the applicant had been furnished with the medical records (hence the withdrawal of prayer 1.1). The only other question is whether the respondents have furnished the

7 names of the nurses who attended Lizole and who were on duty on the night in question. That information appears to have been provided on 1 June The applicant merely notes the contents of the letter in reply. He does not aver in that regard that further information was required. His counsel also conceded that the relief sought in prayer 1.5 goes further than the information to which the applicant was entitled under the PAIA. It appears therefore, that the respondents have furnished all the information requested by the applicant when he initiated the procedure under the Act. An order in terms of prayer 1.2 would accordingly be pointless. [16] The remaining prayers (1.3 and 1.4) require disclosure of the names of the doctors who attended Lizole and of the nurse who set up the drip. Although prayer 1.4 was foreshadowed in the letter of demand of 9 February 2011, that specific information was not requested in Form A. The first demand for the names of the duty doctors surfaced in the letter of 2 June 2011, and is also not recorded in the form, after action had been joined. I am of the view that a requester under the PAIA is not entitled to add to the information initially requested after instituting action under section 78 (vide section 7(1) 1 ). Although section 82(b) grants the court a wide discretion to compel disclosure, that power is in my view confined to orders directing disclosure 1 Which reads: Act not applying to records required for criminal or civil proceedings after commencement of proceedings (1) This Act does not apply to a record of a public body or a private body if- (a) that record is requested for the purpose of criminal or civil proceedings; (b) so requested after the commencement of such criminal or civil proceedings, as the case may be; and (c) the production of or access to that record for the purpose referred to in paragraph (a) is provided for in any other law. 7

8 only of information identified by the requester in the prescribed form that initiates the request, unless it is supplemented before action is instituted. It follows that the respondents were not obliged under the PAIA to disclose the information the applicant now seeks in prayers 1.3 and 1.4. It also follows that the respondents have complied with their obligations under that Act, and that the relief sought in the remaining prayers cannot be granted. If the applicant institutes action for damages, he may still seek discovery in terms of the Rules of Court. [17] In the light of the above finding, it is unnecessary to consider the respondents further submission that the application must also fail because the applicant did not utilise the appeal procedure provided for in the Act and the manual compiled in terms of its provisions. [18] Since the applicant has failed to obtain any substantive relief, the remaining issue is costs. As noted above, each party seeks costs against the other on a punitive scale. The thrust of the applicant s case in this regard is that the respondents provided the information initially sought only after he resorted to litigation. While this is true (the information was furnished on 1 June 2011), the respondents were not legally obliged to make a decision, and therefore to disclose the record, for 30 days after the request was received (section 25(1)). The applicant filed his formal request on 7 March He was accordingly entitled to be informed whether the request had been granted or refused, and on which terms, 30 days after that date. The present application was launched some 18 days after the filing of the request, and was in that sense premature. However, the first response the applicant received was from the respondents attorneys on 31 May 2011, well beyond the 30-day period

9 specified in the Act. Furthermore, the respondents attorney at this point raised technical objections to the request (namely, the absence of consent by Lizole s mother and proof of paternity), which alleged deficiencies should have been raised with the applicant long before (vide section 19(2)). [19] The tenor and content of the letter of 31 March 2011 indicates that the tender of the medical record was indeed elicited by the impending action. However, the respondents also made an open tender that each party bear their own costs in the event of withdrawal. To this tender, coupled with that of the medical records, the applicant responded, first, with the uncompromising reply that costs would in any event be sought against the respondents, and with requests for further information to which, as already found, he was not then entitled because they went further than that specified in the initial request. [20] The applicant now in effect relies for an award of costs in his favour solely on the respondents tardy response to his request. Had the respondents not complied by the time the application was heard, I have no doubt that a costs order against them, even on punitive scale, would have been appropriate. As Mr Cole argued, the applicant was not treated with the sensitivity and respect to which he was entitled, and which he should in the circumstances have been accorded. The respondents have in my view not explained their protracted silence after receiving the applicant s request for information. Had the respondents raised their objections to the request promptly, as they should have done, the applicant could have supplemented the request. I also agree with Mr Cole that the respondents belated claim that they had in any event complied with the request renders otiose their further objection that the 9

10 applicant should have engaged the appeal procedure before approaching the Court, an issue on which I refrain from deciding. However, the applicant s insistence on pursuing the action after the respondents tender compounded such costs that had by then been incurred. Neither party accordingly stands before this Court with unblemished hands, in the legal sense of that metaphor. But neither party is in my view so blemished as to attract a punitive costs order. [21] Although the circumstances of this case naturally invoke sympathy for the applicant, and inclines one to deplore the respondents lack of will in complying immediately with his understandable request, this Court cannot be swayed by such considerations alone. The facts are, on the one hand, that the applicant pursued litigation which has proved unnecessary and, on the other hand, that he would not have done so had the respondents dealt with his request more sympathetically at the outset. It seems to me appropriate in these circumstances that each party should pay his/her own costs.

11 [22] The following order is accordingly issued: 1. The application is dismissed. 2. There is no order as to costs. J G GROGAN ACTING JUDGE OF THE HIGH COURT For applicant: For respondents: Mr S H Cole, instructed by Mili Attorneys. Mr S Rugunanan, instructed by Whitesides. 11