PAIA – Covid vaccine records – Public interest override
Request refused based on confidentiality – Terms of confidentiality clauses not disclosed – Adequate reasons necessary – Ostensible prejudice to future commercial dealings – Public interest in disclosure of records – Basis for refusing disclosure is without any merit – Respondents ordered to grant access to records requested – Promotion of Access to Information Act 2 of 2000.
Facts: The Health Justice Initiative (HJI) requested, in terms of the Promotion of Access to Information Act 2 of 2000, access to copies of documents relating to the negotiation and conclusion of agreements by the Minister of Health and the department for the supply of Covid-19 vaccines. Pfizer SA replied by email to the request and stated that the information requested was confidential and protected from disclosure and cannot be provided. The respondents replied by email to the HJI and stated that as per confidential agreements, the department was not at liberty to divulge the information.
Application: For reconsideration of the request to furnish the requested documents.
Discussion: While it is permissible for the disclosure of information and documentation to be withheld if it would put a third party at a disadvantage in contractual or other negotiations, or would cause prejudice in commercial competition, it is necessary for the respondents to show that disclosure would in fact result in disadvantage or, alternatively, prejudice in commercial competition. There is nothing before court to indicate that there would be any disadvantage in future negotiations or commercial prejudice to the Republic or to any of the other parties to the contracts concerned were the information and documentation to be disclosed. The basis for refusing disclosure is without any merit.
Findings: It is self-evident that there is a public interest in the disclosure of the records. There is no merit in the arguments on the part of the respondents that: the information and records sought should not be disclosed in consequence of material non-joinder of affected parties, confidentiality clauses which are alleged to be contained in the contracts in question, the present or future commercial interests of the Republic preclude disclosure of the records, and that there is no basis upon which there should be mandatory disclosure in the public interest.
Order: The respondent is directed to supply to the applicant copies of the requested documents sought.
MILLAR J
Health Justice Initiative v Minister of Health [2023] 10009-22 (GP)
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WILLS AND ESTATES – Master – Approval for sale of property
Executor needing to sell immovable property but heir not consenting – Master not responding to request for approval – Nature and extent of Master’s powers under section 47 – Proper consideration of factors requires further engagement with the parties – Court not in as good a position as the Master would be to make decision on the manner and conditions of sale – Master’s failure to make a decision reviewed and set aside – Matter remitted to Master – Administration of Estates Act 66 of 1965, s 47.
Facts: Mr Bester (applicant) was appointed as the executor of the late David Hartley’s estate. The estate’s main assets, at the time of the deceased’s death, were a property at Berg-en-Dal, Hout Bay, two motor vehicles, positive bank balances in various accounts, some furniture and a claim against a debtor. In order to finalise the estate, the applicant needed to have sufficient funds to pay creditors and the various costs, but there were no liquid funds available in the estate. Ms Hartley as heir has not been willing to make a contribution and applicant was left with no option but to sell the Hout Bay property, but Ms Hartley does not want it sold.
Application: Applicant sought approval from the Master of the proposed manner and conditions of the sale, but due to the lack of response, now approaches the court.
Discussion: Section 47 of the Administration of Estates Act 66 of 1965 and approval by the Master where the consent of the heir is lacking; the challenges presented by the dysfunction of the Master’s office; that Ms Hartley contends that selling the immovable property would leave her without a home; the contention that applicant should have collected the funds from the debtor; the complaint that the applicant’s fees are too high; and whether Ms Hartley would be left homeless considering the value of the Hout Bay property of around R3,5 million.
Findings: None of Ms Hartley’s grounds of opposition survives scrutiny. The Master’s discretion under section 47 is a broad one, to be exercised in the light of the overall purpose of obtaining the best possible price for the heirs, and in the light of the heirs’ views about the manner and conditions proposed by the executor. In this case, the proper consideration of the factors requires further engagement with the parties and a further opportunity for them to justify the reserve price that they say should be applied to the sale. The court is therefore not in as good a position as the Master would be to make the decision on the manner and conditions of sale.
* See paras [45]-[57] on the Master’s powers under section 47.
Order: The Master’s failure to make a decision in response to the applicant’s request for approval under section 47 of the Administration of Estates Act is reviewed and set aside. The decision is remitted to the Master who is directed to make a decision on the manner and conditions of the sale of the immovable property within two months of the date of service of the order.
HOFMEYR AJ
Bester NO v Master of the High Court [2023] ZAWCHC 208
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ADMINISTRATIVE – Review – HIV treatment
Implementation of Pharmacist-Initiated Management of Antiretroviral Treatment by Pharmacy Council – Whether encroaching on domain of medical practitioners – Council empowered to prescribe the scope of practice of the various categories of persons registered in terms of Pharmacy Act 53 of 1974 – Implementation consistent with the WHO’s vision and a worldwide movement to promote widely accessible primary health care – Application dismissed – Promotion of Administrative Justice Act 3 of 2000.
Facts: The Pharmacy Council decided to implement the Pharmacist-Initiated Management of Antiretroviral Treatment (PIMART). The IPA Foundation claims that the Council failed to provide interested parties with adequate opportunity to give comments or make representations before PIMART was implemented. IPA further contends that by adopting PIMART the Council unjustifiably and irrationally extended the scope of practice of a pharmacist to encroach on the domain of medical practitioner and that such extension is irreconcilable and in conflict with existing legislation.
Application: A review application launched by IPA in terms of sections 3 and 6(2) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and in the alternative on grounds of legality, challenging the decision to implement PIMART.
Discussion: The background to PIMART and that the World Health Organisation recommends that all people living with HIV must be provided with antiretroviral treatment (ART) and the shift from physician-initiated and managed ART; that the services provided in terms of the PIMART initiative are preventative measures and treatment regimes; the legislative landscape and that pharmacists and medical doctors operate in distinct and separate professional domains; that despite the WHO’s call for a collaborative approach to primary health care issues, the different healthcare cadres jealously guard the boundaries of their respective scopes of practice; and whether the implementation of PIMART materially and adversely affects any person’s rights or legitimate expectations.
Findings: The Council is empowered to prescribe the scope of practice of the various categories of persons registered in terms of the Pharmacy Act 53 of 1974. The decision to implement PIMART fell within the ambit of its power and there was no statutory obligation to consult with the HPCSA or the Forum of Statutory Health Professional Councils prior to its implementation. The extensive record with numerous minutes of meetings of the Council and its respective committees is indicative that it applied its mind to the development and implementation of PIMART. The idea to implement the PIMART initiative is consistent with the WHO’s vision and a worldwide movement to promote widely accessible primary health care.
Order: The application is dismissed with costs.
VAN DER SCHYFF J
IPA Foundation v SA Pharmacy Council [2023] ZAGPPHC 666
ABOUT THE EDITOR
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 Louis Case Law
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