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IN THE NORTH WEST HIGH COURT

(MAFIKENG)

CASE NO.: 221/13

In the matter between:

RUSTENBURG MEDICARE PRIVATE

HOSPITAL ........................................................................................APPLICANT

and

KGABANE MOLOTO .................................................................RESPONDENT

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REASONS FOR JUDGMENT

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LANDMAN J:

[1] On 25 February 2013 I struck the application off the roll for lack of urgency and ordered the applicant to pay the costs on an attorney and client scale. I indicated that reasons would follow. These are the reasons.

[2] The applicant, Medicare, operates what is known as a step down hospital in Rustenburg. It is a private hospital. The respondent, Dr Moloto, is a psychiatrist, practising in the same city, who refers patients to the hospital which he treats there.

[3] The applicant launched the urgent application and served it on the respondent on 19 February 2013 at 12:50. The respondent had 10 minutes to file notice of his intention to oppose the application. The applicant sought the following relief:

“3. That, pending the institution of a counter claim in the main application and the finalisation thereof, the Respondent be interdicted from:

3.1 Admitting any patients to the Applicant;

3.2 Making use of the Applicant's facilities;

3.3 causing other parties to admit, on the Respondent's behalf, any patients to the Applicant;

4. That the Respondent pays the costs hereof on an attorney and client scale.”

[4] An answering affidavit had not been filed by 10:00 on Friday when the application served before my sister Kgoele J. The respondent appeared in person and the application was postponed until today 25 February 2013. The respondent was given until 14:00 on Sunday to file an answering affidavit. The costs were reserved.

[5] The applicant alleges that the application is urgent on the grounds set out in para 15 of the founding affidavit. This paragraph reads:

“15.1 The outcome of this application directly affects the wellbeing of other patients admitted to the Applicant. To this end, I reiterate that the patients referred by the Respondent to be admitted can easily cause permanent damage to other patients including the possibility of loss of life and/or severe irreparable harm. If such an incident occurs the Applicant can suffer severe damage, possible law suits and its license can even be revoked. The Applicant employs 210 full time employees. If the Applicant is unable to practice the said employees will lose their employment.

15.2 The Respondent causes constant strife between the employees of the Applicant and himself. I constantly deal with frivolous and baseless complaints made by the Respondent against the employees of the Applicant.

15.3 The Respondent admits patients to the Applicant knowing that they are acute psychiatric patients who are not allowed to be admitted by the Applicant. The ramifications of the Respondent’s action could result therein that the Applicant loses its license to practice as a medical facility.

15.4 The Respondent’s actions already caused the Applicant to lose referrals and, I submit is continuing to do so;

15.5 A real and imminent risk exist that if the Applicant awaits for the normal time periods within which to institute this application and bring it before Court, a serious and sever accident can occur which can, inter alia, cause the loss of life and/or serious harm to patients;

15.6 The referral of acute psychiatric patient to the Applicant, which is not well equipped to deal with them, holds a real and imminent threat in for those patients who clearly need proper and specialised medical treatment and care; and

15.7 Any loss of life and/or serious harm caused to any patient cannot be properly compensated for by a cost order.”

[6] In my opinion the application is not urgent. The applicant admits that the respondent is not treating any patients at the hospital. It was for this reason that the prayer 3.2 was abandoned. As regards prayer 3.1 the applicant states in its replying affidavit that:

“7.2 This urgent application was launched inter alia as a result of a patient being admitted to the Applicant on the Respondent's insistence during 6 February 2013. This said patient was admitted under the false pretences of being a sub-acute psychiatric patient. As per the contents of the founding affidavit it became evident that the said patient was indeed an acute psychiatric patient (of which the Respondent was aware of) whom destroyed one of the Applicant's wards. The Respondent furthermore attempted to admit four more patients on the 18th of February 2013.” (My emphasis)

[7] The applicant has refused to admit the respondent’s patients and as the respondent has no patients admitted in the hospital, he has no business to be there and so cannot do what the applicant alleges he usually does. This is precisely what the applicant sought. Prima facie the applicant has shown that it has sufficient power to achieve the relief it seeks without the assistance of this court. Therefore, even if the applicant desired a court order, there was no reason to launch an application with such inadequate notice. The failure to adapt the time limits in accordance with the degree of urgency, assuming that there is any degree of urgency, constitutes an abuse of the process.

Costs

[8] I have awarded costs on an attorney and client basis because of this abuse.

[9] For these reasons I made the order set out above.

A A LANDMAN

JUDGE OF THE HIGH COURT

Appearances:

date of hearing : 25 February 2013

date of judgment : 25 February 2013

date of reasons : 07 march 2013

counsel for applicant : adv maree

counsel for respondent : in person

attorneys for applicant : nienaber & wissing

attorneys for respondent : motshabi & modiboa

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