Administrator, Transvaal, and Others v Traub and Others

• Jurisdiction: South Africa
• Judge: Corbett CJ, Hoexter JA, E M Grosskopf JA, Kumleben JA, F H Grosskopf JA
• Judgment Date: 24 August 1989
• Hearing Date: 09 May 1989
• Court: Appellate Division

F Corbett CJ:

The Baragwanath Hospital ('the hospital') provides medical and hospital services for the people of Soweto. It also functions as a teaching hospital for the medical faculty of the University of the Witwatersrand. For many years prior to 1987 members of the medical staff at the hospital had complained to the responsible authorities about the conditions prevailing in the wards serving the Department of Medicine. G It appears that the department was housed in halls that were originally built during World War II. Not only were the buildings old, but in addition the ward facilities, such as bathrooms, toilets, etc, were wholly inadequate. The position was further aggravated by an insufficient number of wards, resulting in gross overcrowding in the existing wards. Occupancy, in terms of the number of patients H accommodated in a ward, ranged between 150 % and 300 % of the numbers which the wards were designed to take. Patients who did not have beds were accommodated on mattresses on the floor. It was extremely difficult, if not impossible, under these conditions to provide proper medical and nursing services; the department was understaffed; and, it is alleged, patients were discharged earlier than they should have been I in order to provide beds for incoming patients.

In about September 1987 matters came to a head. On the 5th of that month the South African Medical Journal published a letter signed by 101 doctors, virtually all of whom were employed in the Department of Medicine at the hospital. Signatories included Prof A Dubb, then acting J head of the department, senior specialists, physicians and others. The

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A letter (which I shall refer to as 'annexure M') draws attention to the conditions obtaining in the medical wards at the hospital and emphasises the inaction of the authorities, despite repeated appeals and pleas over the years. The language employed in annexure M is strong and abrasive, as the following extract will show:

B 'The conditions in the medical wards at the hospital are disgusting and despicable. The attitude of the responsible authorities can only be described as deplorable. The state of affairs is inhumane. Facilities are completely inadequate. Many patients have no beds and sleep on the floor at night and sit on chairs during the day. The overcrowding is horrendous. Nurses are allocated according to the number of beds, and not to the number of patients. Ablution facilities are far short of C accepted health requirements, and ethical standards are undoubtedly compromised. Pleas for help have been met by indifference and callous disregard. Patients and their problems are treated with utter contempt by the authorities. Nothing is done to correct this affront to human dignity. Here is human suffering which cannot be portrayed by mere statistics.

D The Administration has reacted in two ways. Firstly, it has been said that improvements cannot be made at the existing hospital, as plans are being made to build a new hospital in Soweto. These statements have proved to be devoid of truth. The passage of time and inquiries at provincial council level have shown that there is no basis or justification for this excuse. Secondly, they say that unfortunately there is no money for new facilities. This answer is utterly E hypocritical. An expensive administration block has been erected at the hospital, and a R300 million hospital mainly for Whites is planned alongside H F Verwoerd Hospital in Pretoria. We have yet to see any evidence of the promised plans to rebuild Baragwanath Hospital. Appeals for help and caring through various channels have been to no avail.

The population of Soweto is very large and resources at Baragwanath F are meagre. Influx control has been abolished. How much greater Baragwanath's burden now is. Has there been planning to anticipate this? The attitude of the administrators to the problem, and to our attempts to give some semblance of a quality service to the people of Soweto, is just unbelievable! Discharge patients, do not admit "unnecessary" patients. Do they understand (or care) that premature discharge is the G order of the day? Even so, the overcrowding worsens. We are of necessity forced to lower our expectations in the quality of care we can offer our patients. The uncaring, uncompromising attitude to the handling of sick human beings is beyond belief.'

The six respondents in this appeal all graduated with the medical H degrees MB ChB from the University of the Witwatersrand, the first and fifth respondents at the end of 1985 and the others at the end of 1986. First and fifth respondents both did their internships at the hospital during 1986. During the first half of 1987 first respondent held the position of senior house officer ('SHO') in the Department of Internal Medicine at the hospital. The position of SHO is held on a six-monthly I basis and appointments are made on application. First respondent applied to serve in the same position during the second half of 1987 and this application was granted. The fifth respondent completed his internship at the end of 1986. Having worked for six months in the Departments of Surgery, Obstetrics and Gynaecology, and Medicine, he occupied the position of SHO in the Department of Paediatrics in the second half of J 1987. The

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A other respondents were, during 1987, interns at the hospital and were due to complete their internship at the end of that year. The respondents were all signatories of annexure M.

In or about September 1987 each of the respondents made application for a SHO post at the hospital for the first six months of 1988, five of them in the Department of Paediatrics and one in the Department of B Medicine. In the case of first and fifth respondents the application was in each case in effect one for an extension of an existing appointment as SHO (though first respondent would be moving from the Department of Medicine to the Department of Paediatrics); in the case of the other respondents the application was in each case one for a new appointment as SHO. In accordance with the existing practice the applications were C forwarded to the head of the department concerned, who submitted them with favourable recommendations to the Director of Hospital Services, Transvaal (second appellant), whose function it was, under delegated powers, to make appointments to the position of SHO. During November 1987 each of the respondents was notified that his or her application D for the post of SHO had not been approved. It is now common cause that the second appellant decided to reject the respondents' applications because they had signed annexure M.

On 30 November 1987 the respondents launched an urgent application in the Witwatersrand Local Division, citing as respondents the Administrator of the Transvaal (first appellant), the second appellant E and the superintendent of the hospital (third appellant), and claiming the following substantive relief, viz an order:

(1)

directing the appellants (respondents below), or any of them, to confirm the respondents (applicants below) in the positions in which they were recommended by the respective departments at the F hospital;

(2)

alternatively, directing appellants, or any of them, to reconsider the applications of the applicants lawfully and in accordance with the provisions of the relevant ordinances and regulations and directing that this be carried out forthwith.

G The application came before Goldstone J on 12 December 1987. Two days later he gave judgment in favour of the respondents with costs and made an order setting aside the decision of the second appellant in not approving the appointment of each of the respondents. He further directed the first appellant to cause the applications of the respondents to be considered either by himself or by any person to whom H he might delegate the duty, other than second appellant and third appellant, as a matter of urgency, and in any event before 31 December 1987, and after the respondents had been afforded the opportunity of a fair hearing. The judgment of Goldstone J has been reported (see Traube and Others v Administrator, Transvaal, and Others 1989 (1) SA 397 (W); I and I shall call this 'the reported judgment'). With leave of the Judge a quo the appellants appeal to this Court against the whole of the judgment and order.

At this point I digress by pointing out that, although the subsequent history of the matter is not referred to in the papers, it is a matter of public record and is briefly to this effect. Pursuant to the order of Goldstone J the first appellant appointed a Mr Badenhorst, the director J of personnel, to

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A consider the applications anew. Written and oral representations were made to him by and on behalf of the respondents. Certain of the respondents thereafter obtained appointments as SHOs at the hospital. One whose application was turned down again took the matter to Court and obtained an order directing that she be appointed to the post for which she had applied (see Traube v Administrator, Transvaal, and Others 1989 (2) SA 396 (T) B ). Consequently, apart from the question of costs, the issues raised by this appeal do not presently have any practical significance. I now revert to the present case.

In the Court a quo the appellants took the point in limine that the respondents had failed to give to them the written notification required C by s 34(2) of the Public Service Act 111 of 1984 ('the Act') and that the application should accordingly be dismissed. This point was overruled by Goldstone J (see reported judgment at 404I - 405E). On the merits the learned Judge held that the decision of the second appellant not to appoint the respondents to the positions applied for by them D (strictly there was a separate decision...