Spartan Caselaw

Montrose Mews Body Corporate v Moela [2024] ZAGPJHC 198

PAIA – Body corporate – Books of account

Member suspicious of irregular loan and seeking access to bank statements and statement of expenditure – Act does not apply to “application” by member under Management Rule 26(2) in Annexure 1 to the Sectional Titles Schemes Management Regulations, 2016 – Rules made under Sectional Titles Schemes Management Act 8 of 2011 – PAIA is not intended to apply to situations in which duty to disclose information arises from pre-existing legal relationship between person seeking information and person holding that information – Promotion of Access to Information Act 2 of 2000.

Facts: Montrose Mews is a body corporate constituted out of a sectional title scheme and Ms Mokoka is a member of that body corporate. Ms Mokoka asked to see bank statements reflecting the state of Montrose Mews’ administrative fund and a statement of the fund’s expenditure for certain months. The request was apparently motivated by what Ms Mokoka thought was a poor auditor’s report, and her suspicion that an irregular loan had been made to the body corporate. On receipt of the request for information, Montrose Mews referred Ms Mokoka to a Promotion of Access to Information Act 2 of 2000 (PAIA) manual it had prepared. Montrose Mews took the view that PAIA applies to any request made by a member of the body corporate for information held by the body corporate.

Application: Ms Mokoka took the view that Montrose Mews’ reliance on PAIA was no more than a tactic meant to conceal information to which she was entitled under the Management Rules. She has refused to fill out an information request under PAIA. She says she has an unconditional right to the information she seeks under the Sectional Titles Schemes Management Act 8 of 2011 and its Regulations. The adjudicator at the Community Schemes Ombud Service directed Montrose Mews to hand over a number of bank statements to which he concluded Ms Mokoka is entitled under the Sectional Titles Management Act. Montrose Mews seeks to review and set aside the adjudication order.

Discussion: Ms Mokoka has a right under the Management Rules to inspect the statements she wishes to see “on application”. The use of the word “application” in Management Rule 26(2) denotes that, although Ms Mokoka is entitled to the statements she seeks under the Management Rules, she is not entitled to information in them that is not necessary to allow her to assess the Montrose Mews’ financial situation and which Montrose Mews has a good faith basis to redact. This would include personal information that is irrelevant to Ms Mokoka’s assessment of Montrose Mews’ financial state. That does not mean that all personal information may be redacted per se. Access to some personal information of other body corporate members (their identities and payments they have made to the body corporate, for example), may be a necessary incident of Ms Mokoka’s rights under the Management Rules.

Findings: PAIA does not apply to Ms Mokoka’s request to see the bank statements she demands because it was never intended to apply in situations where a duty to disclose information arises from pre-existing legal relationship between a person seeking information and the person holding that information. PAIA is rather intended to apply where a person seeking information from a private body would otherwise have no right to it. To hold otherwise would lead to absurd results, mostly by imposing an additional burden on the exercise of existing rights of access to information. It would be truly perverse to encumber specific statutory rights of access to information with the machinery of PAIA, which is manifestly designed to kick in only when no such specific rights exist. The manifest purpose of PAIA is not to displace other statutes which provide for defined rights of access to information to individuals who are embedded in specific legal relationships.

Order: The application is dismissed with costs.

WILSON J

~

MEC for Health, Gauteng v M [2024] ZASCA 21

MEDICAL NEGLIGENCE – Cerebral palsy – Sentinel event

Evidence that baby suffered acute profound brain injury intrapartum – Contention that sentinel event would have been detected and avoided based on reverse reasoning that because baby suffers from cerebral palsy there must have been detectable and avoidable sentinel event during his birth – CTG monitoring would not have made a difference – Plaintiff failed to demonstrate that hospital staff acted negligently and failed to prove that some wrongful conduct on part of hospital staff caused injury to child’s brain.

Facts: L was born at Tshwane District Hospital in 2010. His mother, Ms M arrived at the hospital in the early hours of the morning as an “unbooked” patient, with no ante-natal records. She was admitted at 01h45 in the latent stage of labour, with ruptured membranes. L was born at 15h10, on the same day, by natural delivery, with Apgar scores of 1 at one minute, 7 at five minutes (assisted through resuscitation), and 8 at ten minutes (assisted through resuscitation). At birth he was flaccid, acidotic and had to be placed on a ventilator. Ms M alleged that L suffered a hypoxic-ischaemic encephalopathy (HIE or brain injury) during birth as a result of negligence by the hospital staff. This resulted in L suffering cerebral palsy which continues to afflict him, she alleged.

Appeal: The trial court dismissed Ms M’s claim, having found that it could not conclude that the injury to L’s brain was sustained intrapartum, or that the hospital staff was negligent. With the leave of this court the matter was appealed to the full court, which overturned the decision of the trial court and held that the MEC was 100% liable for any proven or agreed damages arising from L’s brain injury.

Discussion: The obstetricians, Drs Murray (for Ms M) and Archer (for the MEC) agreed in their joint minute that the cerebral palsy from which L was suffering was likely caused by intrapartum hypoxia which occurred at an undefined time. The conclusion of the full court was based on the understanding that Dr Murray was of the opinion that the foetal condition became pathological at 06h24. It concluded that the failure to monitor with CTG constituted below par medical care. However, it was not Dr Murray’s evidence that the foetus became pathological at 06h40 and that its condition deteriorated thereafter. Furthermore, the suggestion that CTG monitoring of L’s heart rate would have facilitated the detection and avoidance of a sentinel event is unsubstantiated. The radiologists agreed that L sustained acute profound HII. They were unable to pinpoint when this occurred. The evidence to the effect that L suffered an acute profound brain injury intrapartum was overwhelming. The other experts were consistent in their opinion in that regard.

Findings: This court has held that authoritative peer-reviewed literature does not support the view that monitoring of the foetal heart by CTG provides prior warning of a sentinel event. In this case there was no evidence of a sentinel event. The contention that a sentinel event would have been detected and avoided if reasonable care had been taken is based on the reverse reasoning that because L suffers from CP there must have been a detectable and avoidable sentinel event during his birth. The courts have cautioned against commencing with an unfavourable outcome and working backwards in search of a cause. Having found that CTG monitoring would not have made a difference, it is not necessary to consider the contention by Ms M that the hospital staff were negligent in failing to adhere to the guidelines stipulated by the Department of Health when attending to her. Ultimately Ms M failed to demonstrate that the hospital staff acted negligently in attending to her during L’s birth. This also means that she failed to prove that some wrongful conduct on the part of the hospital staff caused the injury to L’s brain.

Expert agreements: Much was made of the admission into the record of the evidence of Prof Izelle Smuts, also a paediatric neurologist, on the first day of the trial at the MEC’s instance. The full court found that Prof Smuts’ evidence should not have been admitted because it sought impermissibly to undo agreements previously reached by the parties’ experts. Prof Smuts’ evidence led to revised joint minutes of the other experts. Her evidence indeed impacted on issues which had been agreed on between the experts, the most significant of which was the condition in which L presented when he was born. The court agrees that the trial court should not have allowed Prof Smuts’ evidence without a substantive application setting out factors on which it could properly exercise its discretion. However, even without reference to Prof Smuts’ evidence and the events pursuant thereto, Ms M did not establish negligence on the part of the hospital staff and the MEC.

Order: The appeal is upheld and the order of the full court substituted with an order dismissing the appeal.

DAMBUZA AP and NICHOLLS JA (SALDULKER JA, MABINDLA-BOQWANA JA and GOOSEN JA concurring)

~

Covid Care Alliance NPC v President of RSA [2024] ZAGPPHC 171

CONSTITUTION – Separation of powers – Covid-19 vaccinations

Applicants alleging strange medical conditions following vaccinations – Seeking orders prohibiting approval and distribution of vaccines and that investigations be conducted – Qualifications and knowledge of experts relied on by applicants placed in doubt – Usurping of role of regulatory authority and safety committee would not only undermine their statutory obligations but would also cause court to cross line delineating separation of powers – Application dismissed with costs.

Facts: The three applicants are non-profit companies and they, together with some doctors in South Africa, have tried to draw the attention of the respondents (the Minister of Health and others) to what they have labelled “strange and unusual medical conditions” which they have witnessed occurring in patients who had been administered Covid-19 vaccines, but that the respondents were either unwilling or incapacitated to stop the vaccination program or to conduct any investigation into the consequences of the administration of vaccination. The applicants in general aver that there are otherwise healthy people who, after receiving the Covid-19 vaccines, experience “unexplainable changes” to their blood cell structure or who have “unexplainable foreign substances” in their blood.

Application: Seeking, among other relief, that the respondents cease and desist from all aspects related to the approval and distribution of the Covid-19 vaccine, and an order compelling the respondents to conduct detailed joint investigations into the medical and scientific safety and efficacy of Covid-19 vaccines being administered in South Africa.

Discussion: The court discusses the opinions and affidavits of the experts, for the applicants and the respondents, at paras [10]-[86]. It is accepted that there are members of the public who had received vaccinations and either experienced adverse health events or symptoms which they perceive were related to or caused by the administration of vaccines. What is also of great importance, is that none of the rollout programmes for the administering of vaccines proposed by the Government respondents are mandatory or compulsory. No-one is forcing any person or any parent of a minor to receive further vaccines or to subject children to vaccination. The qualifications and knowledge of the experts relied on by the applicants have seriously been placed in doubt. They appear to be either general practitioners or not suitably qualified in the specialised fields of medical science required to express opinions the subject matter, principally viruses, vaccinations and blood analysis.

Findings: The applicants do not have the right to prevent others who do not share their beliefs or opinions from being vaccinated. Insofar as the applicants claim that they have a right to protect others, such as minors, it has not been established that the harm which the applicants aspire to prevent, actually exists, and even if it may exist in rare or exceptional cases, the benefit of vaccination far outweighs that harm. Should the applicants otherwise wish to have vaccinations deregistered and thereby prevent their use in the country, they have the alternate remedies available to them in terms of legislation, which remedies they have not pursued or exhausted. The usurping of the role of SAPHRA and NISEC would not only undermine their statutory obligations but would also cause the court to cross the line delineating the separation of powers. That cannot be permitted. 

Order: The application is dismissed with costs, including the costs of senior and junior counsel, where employed.

DAVIS J

~

ABOUT SPARTAN CASE LAW

Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes.​ During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Spartan Case Law

You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.

LEAVE A REPLY

Please enter your comment!
Please enter your name here

18 − two =