FORM A
FILING SHEET FOR EASTERN CAPE HIGH COURT, BHISHO
JUDGMENT
PARTIES:
SUSAN ELIZABETH ROBAIN
Applicant
and
THE MEMBER OF THE EXECUTIVE COUN CIL,
DEPARTMENT OF HEALTH, EASTERN CAPE
PROVINCE
1.
Respondent
Registrar: CASE NO. 533/2008
• Magistrate:
•
High Court:
EASTERN CAPE HIGH COURT, BHISHO
DATE HEARD: 17 March 2009
DATE DELIVERED: 06 April 2009
JUDGE(S): SANGONI J
LEGAL REPRESENTATIVES –
Appearances:
1. for the Plaintiff(s)(s)/Applicant(s)/Appellant(s): Adv S A Collett
[1]
for the Defendant(s)/Respondent(s): Adv M Jozana
Instructing attorneys:
•
Plaintiff(s)/Applicant(s)/Appellant(s): Messrs Hutton &
Cook
[2]
Defendant(s)/Respondent(s): State Attorney
CASE INFORMATION -
1. Nature of proceedings
:
2
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE, BHISHO
CASE NO. 533/2008
In the matter between:
SUSAN ELIZABETH ROBAIN
Applicant
and
THE MEMBER OF THE EXECUTIVE COUN CIL,
DEPARTMENT OF HEALTH, EASTERN CAPE
PROVINCE
Respondent
JUDGMENT
SANGONI J:
[1]
The applicant is an assistant nurse in the employ of the Department of
Health attached to the Provincial Hospital in Port Elizabeth. She fell
ill about 2003 and has been on extended sick leave from time to time
ever since.
3
[2]
The respondent is the Member of the Executive Council for the
Department of Health in the Eastern Cape Province.
[3]
This application is purportedly brought in terms of the provisions of
the Promotion of Administrative Justice Act 3 of 2000 (PAJA). I am
of the view that for convenience I should first dispose of the first part
of the relief sought. As reflected in the notice of motion the order
sought in this regard is in the following terms:
“1.
Directing that the Department of Health, Eastern Cape Province furnish to
the Applicant written reasons for its decision to refuse the Applicant’s
application for ill health retirement, pursuant to the provisions of Section 5
of the Promotion of Administrative Justice Act, 3 of 2000, with particular
reference to:
1.1
The said Department’s failure to furnish the Applicant with a copy
of the medical report of Dr H Erlicher dated 24 August 2007;
1.2
The contradictory finding of the said Department to the effect that
whilst the Applicant suffers from genuine psychiatric illness and
that she does not meet the requirements of her occupation, she
nonetheless was not regarded as totally and permanently disabled
to perform the tasks of her occupation.”
[4]
The medical report of Dr H Erlicher dated 24 August 2007 was
annexed to and delivered together with the answering papers. On
behalf of the applicant that was accepted to be adequate fulfilment of
4
what was sought in paragraph 1 of the notice of motion. There is no
need to grant the order therefore.
[5]
What I record hereunder is paragraph 2 of the notice of motion which
encapsulates the second portion of the relief sought. The applicant
seeks an order:
“2.
Directing that the administrative action of the Department of Health,
Eastern Cape Province:
2.1
In its decision made on 13 May 2008 to instruct the Applicant to
return to her duties;
2.2
In threatening to institute disciplinary action against the Applicant
for not so reporting;
2.3
In failing to respond to the Applicant’s attorneys’ correspondence
dated 11 March 2008,
be judicially reviewed in terms of Section 6 of the Promotion of
Administrative Justice Act, 3 of 2000, and set aside, upon the basis that
the medical evidence has proclaimed the Applicant unfit to discharge her
duties.”
BACKGROUND
[6]
The applicant is about fifty five years old and has been working for
the Department of Health as an assistant nurse for the past twenty five
5
years. She fell ill about 2003 and has been on psychiatric treatment
ever since.
[7]
On 11 May 2007 she submitted an application for ill-health
retirement. The application was refused.
This application is not
based on that refusal. The material in support of the application
actually built up subsequently. There is a letter which, in my view,
forms the basis for this case.
[8]
That letter is dated 13 May 2008 from the Department of Health,
addressed to the applicant. For proper perspective I will record the
entire letter:
“Dear Ms Robain
APPLICATION FOR ILL HEALTH RETIREMENT
1.
Your application for ill Health Retirement dated 2007/05/11 refers.
2.
Please be informed that The Head of Department has not approved your
application for Ill Health Retirement based upon all available information on
your application.
3.
The Health Risk Manager is of the opinion that you would benefit from the
following interventions and therefore recommends that:
•
You should consult a psychologist for psychotherapy to improve your
cognitive abilities and for psychometric testing.
•
You should consult your psychiatrist and a firm diagnosis should be
made and your medication should be reviewed.
•
You should be accommodated in an alternative occupation, preferably,
an administrative position.
6
•
4.
[9]
You should receive EAP intervention to make sure that the process of
accommodation is implemented.
As per the previous recommendations, you were not granted incapacity
leave. You are therefore expected to return to work by no later than 3rd June
2008. If you fail to do so, you may expose yourself to a possible
disciplinary action.”
The applicant takes issue with paragraph 4 of the letter I have just
referred to. Simply, what the letter says to the applicant is that she is
expected to return to work by the 3rd June 2008 as she had not been
granted incapacity leave and should she not do so she may expose
herself to a disciplinary action.
[10]
The relief sought is not based on the correct facts. Firstly, in the letter
there is nothing to suggest a decision, which should be an
administrative action by the way, was made on 13 May 2008 to
instruct the applicant to return to her duties.
There is no such
instruction in the letter. An administrative action would have been
made by any organ of State, which is not the case here.
[11]
Secondly, there is no threat to institute any disciplinary action against
the applicant. Thirdly, the failure to respond to a letter does not
constitute an administrative action.
7
[12] I am of the view that the relief sought is ill-conceived and may
warrant a punitive costs’ order.
[13] I am however of the view that it may be fair and equitable to order
each party to pay their own costs. The applicant was also somewhat
successful but could be entitled to costs up to the time the report
sought was furnished.
In the result I make the following order:
2.
The application is dismissed.
3.
Each party to pay their own costs.
C T SANGONI
JUDGE OF THE HIGH COURT
8
Counsel for the applicant
:
Adv S A Collett
Attorneys for the applicant
:
Messrs Hutton & Cook
King William’s Town
Counsel for the respondent
:
Adv M Jozana
Attorneys for the respondent
:
State Attorney
East London
Date heard
:
17 March 2009
Date Judgment delivered
:
06 April 2009
S E Robain and MEC Department of Health, EC Province Case No 533/2008