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PRE LITIGATION DISCOVERY: TO BE OR NOT TO BE

1 January 2003
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PRE LITIGATION DISCOVERY: TO BE OR NOT TO BE

By Mandisi Rusa

This article has been necessitated by the continued tendency of the parties in a potential litigation who use the provisions of the Promotion of Access to Information Act 2 of 2000 (“the Act”) to secure early discovery of a document before the commencement of legal proceedings on the basis that such document could assist them to formulate a claim against a potential defendant. According to a recent majority judgment in the matter of UNITAS HOSPITAL / VAN WYK AND ANOTHER 2006 (4) SA 436 SCA, this practise is not permissible.

The facts in this matter were, briefly, as follows:

The husband of the first respondent died whilst he was a patient at the appellant’s hospital. The first respondent contended that the death of her husband was caused by the negligence of the staff of the appellant. She also believed that she had an action against appellant for damages that she suffered in consequence of her late husband’s death who was suffering from crohn’s disease. During his period of admission to the appellant, the deceased was treated by various medical specialists including Dr Naude. The first respondent visited her husband daily and was very critical of the nursing staff of the appellant. The first respondent lodged a complaint with the management of the appellant after her husband’s death complaining, inter alia, about the vomiting and aspiration by her husband at the time he was a patient of the appellant. According to the first respondent, this occurrence took place because the deceased was given solid food to eat against the instructions of his doctors. She based her belief on the expert evidence received from various doctors who examined the deceased prior to his death.

Aggrieved by this state of affairs, the first respondent informed the appellant of her intentions to institute action against it and made a request to the appellant, in terms of section 50 of the Act, to furnish her with a report prepared by Dr Naude (“the report”) which she believed was the product of investigation into the nursing conditions at the appellant and which was specifically undertaken as a result of her husband’s death. The appellant refused to furnish the first respondent with the documentation she sought on the ground that the first respondent had failed to establish that she required the report for the exercise or protection of any right.

Section 50 (1) provides that a requester is entitled to the records in the possession of a private body if:

(a) the information is required for the exercise or protection of any rights;
(b) the requester complies with the procedural requirements of the Act relating to a request for access to that information;
(c) access to the information requested cannot be refused on any of the grounds provided for in sections 62 and 70.

In consequence of the appellant’s refusal, the first respondent applied to the Pretoria High Court (“the court a quo”) to seek an Order for access to the report.

In her Founding Affidavit, the first respondent did not specifically state that she required the report for the exercise of any right as is required by subsection 50 (a). She only averred that without access to the report, her right to claim damages from the appellant would be affected. In its answering affidavit, the appellant averred that the first respondent did not require the report for the exercise or protection of any rights as contemplated by section 50 (1) (a) of the Act in that she had already had access to whatever information her experts would require to advise her on the formulation and assessment of her claim. The allegations by the appellant were not denied by the first respondent in her replying affidavit.

The court a quo granted the Order sought by the first respondent. The appellant appealed against that decision to the SCA.

The SCA in its majority decision, per Brand JA, held that if the requester cannot show that the information sought would be of assistance for the stated purpose, access to that information would be denied. Reasonably required, the court held, is understood to connote a substantial advantage or an element of need. The court found that the first respondent did not require the report to formulate her claim for the purposes of instituting an action and that once she has instituted her civil action, the appellant would be obliged to make the report available in terms of Rule 35 of the Uniform Rules, provided that the contents of the report were relevant to the issues on the pleadings.

It was further held that once the proceedings have commenced, the rules of discovery would take over as the provisions of PAIA thus no longer apply. This view by the learned judges is borne by the provisions of section 7 of the Act which exclude the application of the Act if the record requested for the purposes of civil proceedings was so requested after the commencement of such proceedings.

Brand JA held the view that resorting to section 50 was a “fishing expedition” which could arise if the aforesaid section was used to facilitate pre-action discovery as a general practice. He also held that pre-action discovery under section 50 should remain the exception rather than the rule. In other words, it must be available to a requester who has shown the element of need or substantial advantage of access to the requested information.

The Court further held that although it is legitimate to use the provisions of section 50 to identify the right defendant, it could not agree with the Court a quo’s finding that one was entitled to all information which would assist in evaluating one’s prospects of success against a potential defendant. The first respondent, the court held, had a number of alternative sources of information that were available to her as to what happened to her late husband while in hospital. Furthermore, the Court held that the first respondent had failed to substantiate her claim that the report would be of assistance to her in her case against the appellant. The question whether the first respondent had shown the element of need or the substantial advantage was found not to have arisen. The appeal was accordingly upheld.

In a dissenting judgment, Cameron JA held that the litigation of the first respondent would involve issues not only of individual conduct and responsibility but would scrutinize how the hospital’s systems functioned and whether institutional procedures and protocols caused or permitted actions by individual members of staff. The learned judge went on to say that the declared objects of the Act in terms of section 9 thereof suggest that where appropriate, courts should encourage transparency, accountability and effective governance in private institutions. The learned judge emphasized the importance of pre litigation discovery in that it assists a litigant or opponent to determine whether litigation should commence at all and, if it has, whether it should proceed. He further held that where access to a document can be of assistance in avoiding the initiation of litigation, or opposition to it, the objects of the statute suggest that access should be granted.

The above reasoning by Cameron JA is the same as that adopted in the matter of VAN NIEKERK / PRETOTIA CITY COUNCIL 1997 (3) SA 839 (T) at 848G. In that matter, Cameron J, as he then was, held as follows: “while the applicant may arguably be in possession of some information on the basis of which she may issue summons against the respondent, there can be no doubt that, the less information she has, the higher she runs the risk of either formulating her claim incorrectly or even of proceeding with the litigation when, with a fuller picture, she might decide not to. Another advantage of assessing information early is that, if indeed, based on the available information, the applicant does not have a case against the first respondent, the applicant will be placed in the position to know this early and therefore avoid unnecessary litigation”.

Returning to the Unitas matter, Cameron JA concluded in his dissenting judgment by holding that the reasoning for his approach in the VAN NIEKERK matter was the objective of promoting early settlement of disputes by assisting potential litigants to evaluate the viability of their claims in the light of the documentation sought.

To the extent that a party must endeavour to fully investigate the strength of its claim before resorting to litigation which is usually costly and unnecessary, I support the views of Cameron JA, notwithstanding his judgment being in the minority. To me, his judgment appears to be more in step with the Constitution’s values and, in contrast to the majority’s formalistic interpretation of the statute, the dissent interprets it purposively and generously.