CCT CASE NO: 77/2013 SCA CASE NO: 473/2012 ECHC CASE NO: 870/2009
In the matter between:
MEMBER OF THE EXECUTIVE COUNCIL
RESPONSIBLE FOR HEALTH IN THE EASTERN
CAPE First Applicant
(First Appellant in SCA Case No: 473/2012) (First Respondent in ECHC Case No: 870/2009)
SUPERINTENDENT GENERAL OF THE EASTERN
CAPE DEPARTMENT OF HEALTH Second Applicant (Second Appellant in SCA Case No: 473/2012) (Second Respondent in ECHC Case No: 870/2009)
and
KIRLAND INVESTMENTS (PTY) LTD t/a
EYE & LASER INSTITUTE Respondent (Cross-Appellant in SCA Case No: 473/2012)
(Applicant in ECHC Case No: 870/2009)
APPLICANTS’ NOTE IN TERMS OF THE PROVISIONS OF RULE 5 OF THE PRACTICE DIRECTIONS OF THE CONSTITUTIONAL
COURT
1. The names of the parties and the relevant case numbers
appear from the header above.
2. This is an application for Leave to Appeal pursuant to the directions of the Chief Justice dated 1 August 2013. Those directions appear at Record Vol 4 p 440 – 441.
3. The following are the issues which will be argued on behalf of the Applicants at the hearing:
3.1. That the Supreme Court of Appeal erred in adopting and pursuing an inflexible approach to the principle originally laid down by that Court in
Oudekraal Estates (Pty) Ltd v City of Cape Town & Others
2004(6) SA 222 (SCA).3.2. That the principle in
Oudekraal
should in fact be revisited by the above Honourable Court.3.3. That in view of the patent illegality which occurred in the present instance, the Applicants were entitled to ignore the unlawful
“decisions”
which occurred in this case concerning licences for private hospitals applied for by the Respondent.3.4. That it was unnecessary for the Applicants to be
required to have brought an application in the High Court to review and set aside decisions which were objectively and patently unlawful and unconstitutional.
3.5. That accordingly Leave to Appeal should be granted to the Applicants to appeal against the whole of the judgement and order of the Supreme Court of Appeal.
3.6. That the appeal should be upheld with costs and the original order granted in the High Court should be set aside.
4. As required by the directions of the Chief Justice the parties have reached an agreement as to the essential facts relevant to the determination of the issues which arise in this appeal. The matter has its origins in an opposed application in the High Court.
5. In addition to the agreed facts the parties in written and oral argument may refer to additional facts arising from the papers filed in the opposed application and which form part of the record. The limited reference to such additional facts will be contained in the written submissions advanced on behalf of the
respective parties.
6. The oral argument will not take more than one day.
7. The Applicants’ submissions can be summarised as follows:
7.1. The Respondent, which conducts business as an owner and operator of private hospitals, applied for approvals to build and operate a private hospital in Port Elizabeth and approval for a similar facility in Jeffreys Bay.
7.2. At the time the applications were processed in terms of the Health Act, Act 66 of 1977 and the Regulations made under that Act. Pursuant to those Regulations the power to take the decision to grant or refuse the Respondent’s applications vested in the Superintendent-General of the Eastern Cape Department of Health (the SG).
7.3. The then SG, applying norms and standards which had been established at national level and having had regard to the recommendations of an advisory body established in the Eastern Cape to make such
recommendations to the Superintendent-General, decided to refuse the Respondent’s applications.
Appropriate letters were drafted for the signature of the then SG.
7.4. Unfortunately the SG was involved in a motor car accident and was unavailable for a number of weeks.
Dr Diliza was appointed as acting SG during his absence.
7.5. The acting SG received an instruction from the then MEC (herself under
“political pressure”
) to grant the Respondent’s applications.7.6. Such instruction was unlawful and inappropriate.
7.7. The acting SG, with full knowledge of the prior decision made by the SG (which had not yet been communicated to the Respondent) simply carried out the instruction given to her by the MEC.
7.8. The
“decision”
by the acting SG was conveyed to the Respondent.7.9. On his return the SG became aware of what had
occurred and, subsequently, advised the Respondent that in fact the applications had been refused.
7.10. The Respondent sought to enforce the
“decision”
of the acting SG by seeking relief in the High Court in Port Elizabeth. That application succeeded, in part.7.11. The matter proceeded on appeal to the Supreme Court of Appeal.
7.12. The Supreme Court of Appeal, on the application of the principle in the
Oudekraal
case (supra
) came to the conclusion that since the acting SG’s“decision”
had not been set aside, it had legal effect and consequences and the Department of Health in the Eastern Cape was obliged to give effect thereto.
7.13. In this Court it will be submitted that in fact the acting SG made no
“decision”
at all. Furthermore her conduct was patently unlawful as being,inter alia
, in conflict with the provisions of Section 6(2)(e) of PAJA.7.14. It will further be submitted on behalf of the Applicants that it is appropriate for the above Honourable Court
to reconsider the correctness of the judgement in
Oudekraal
, its rationale and scope.7.15. It will further be submitted that such reconsideration should occur within the context of the Constitutional principles of legality, since every improper performance of administrative action necessarily implicates the Constitution.
7.16. It will be further submitted that the
Oudekraal
principle is based upon considerations of pragmatism rather than principle.7.17. Such principle has in any event been inconsistently applied.
7.18. The
Oudekraal
principle should accordingly not be enforced, at least within the context of the facts of the present case.8. The authorities upon which particular reliance will be placed during oral argument are the following:
8.1.
Mlokoti v Amathole District Municipality
2009(6) SA 354 (ECD);8.2.
Oudekraal Estates (Pty) Ltd v City of Cape Town & Others
2004(6) SA 222 (SCA);8.3.
The Head of Department : Department of Education Free State Province v Welkom High School & Others
Case No CCT103/2012;8.4.
Steenkamp N.O. v Provincial Tender Board, Eastern Cape
2007(3) SA 121 (CC);8.5. Administrative Law in South Africa – 2nd Edition – Professor C Hoexter at 546 ff;
8.6.
City of Tshwane Metropolitan Municipality v R P M Bricks (Pty) Ltd
2008(3) SA 1 (SCA);DATED at PORT ELIZABETH and GRAHAMSTOWN on this the 6th day of SEPTEMBER 2013.
R G BUCHANAN SC
G H BLOEM SC
COUNSEL FOR APPLICANTS
