Korf v Health Professions Council of South Africa

• Jurisdiction: South Africa
• Judge: van Dijkhorst J
• Judgment Date: 15 October 1999
• Counsel: HM Barnardt for the applicant IV Maleka for the respondent
• Hearing Date: 05 October 1999
• Citation: 2000 (1) SA 1171 (T)
• Court: Transvaal Provincial Division
• Docket Number: 15388/99

Van Dijkhorst J:

The respondent's file I No MP0 - 20818-3/669/95 (the file) contains documents relating to the investigation of a complaint lodged by the applicant against Dr A C Harmse. The applicant seeks access to the contents of this file, relying on the provisions of s 32 of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution). The respondent refuses access to this file. J

Van Dijkhorst J

The respondent is a legal persona in terms of s 2 of the A Medical, Dental and Supplementary Health Service Professions Act 56 of 1974 as amended.

The applicant alleges that on 19 April 1990 she was approximately five months pregnant when she consulted Dr A C Harmse at a clinic in Witbank. He performed a sonar investigation and told her B that everything was in order. That same evening she realised that things were amiss and on instructions of Dr Harmse she was admitted to Witbank Hospital, which is a State hospital. After a few minutes Dr Harmse arrived, looked at the sonar report of that morning and again told her that there were no problems as the sonar showed that everything was in order. The next moment he told her that the child C would not live and that the foetus had to be removed. This he proceeded to do immediately and having done that put the foetus on a trolley without ascertaining whether there was life and left the room. Applicant's friend, Anita, after a few minutes noticed movement and told Dr Harmse that the child lived. He responded by saying that these D were merely the final spasms. Thereupon Dr Harmse went to the baby, ascertained that there was life and ordered an incubator. At this stage the baby was already blue. It is alleged that this constitutes medical neglect which resulted in the baby becoming a quadriplegic.

The applicant lodged a complaint with the South African Medical and E Dental Council against Dr Harmse on the basis of medical negligence and a committee of that council, after a preliminary inquiry on 18 March 1997, informed her that the explanation by Dr Harmse was noted and that no steps would be taken. The applicant was dissatisfied.

The applicant never received any accounts or correspondence from the Witbank Hospital or Dr Harmse in respect of the birth. Despite numerous F requests and personal visits to Witbank Hospital the applicant could not succeed in obtaining the records of her confinement and treatment. She was informed that all relevant records are at present in the possession of the respondent (who is the successor in title to the previous South African Medical and Dental Council).

The applicant intends to institute an action on behalf of her child G against Dr A C Harmse and Witbank Hospital on the grounds of medical negligence. She alleges that she needs copies of the contents of the file of the respondent on the complaint which she lodged against Dr Harmse for this purpose.

This application was preceded by a strange tug of war between the H applicant's attorneys and the respondent. The attorneys requested copies of the contents of the entire file, whereas the respondent required the attorneys to provide a list of items which they sought in order that this request could properly be considered. This list was not forthcoming as the attorneys' attitude was that they did not know what I was in the file. The hospital records were not specifically requested but, on the other hand, the respondent never denied that it was in possession of the originals or copies of the hospital records which had allegedly gone missing from Witbank Hospital. On the probabilities it must be found that the respondent is in possession thereof as no proper inquiry could have been conducted without at least obtaining them. J

Van Dijkhorst J

Strangely enough the respondent was throughout very cagey about A the contents of its file. It even refused to furnish the applicant with a copy of Dr Harmse's explanation or with its own reasons for not taking any steps against him.

The reasons why the respondent refuses to give access to the file are the following: B

1.

The applicant cannot engage in a fishing expedition without showing the relevance of the documents sought to the civil proceedings contemplated by her against Dr Harmse and Witbank Hospital. In the absence of such relevant and rational connection the applicant is not entitled to indiscriminate access to the contents of the file. C

2.

The respondent is obliged to protect the confidentiality of documents or facts which came before it whenever it conducts or has conducted an investigation in respect of a medical practitioner against whom a complaint of misconduct has been lodged.

3.

The applicant was told by the respondent as long ago as D 26 June 1995 that the documents sought by her were in the possession of Witbank Hospital over whom the respondent had no jurisdiction or control. This statement is incorrect as annexure C to the respondent's answering affidavit, which is the document referred to, contains no reference to these documents at all. E

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