Traube v Administrator, Transvaal, and Others

• Judge: Goldstone J
• Judgment Date: 05 October 1988
• Citation: 1989 (2) SA 396 (T)
• Hearing Date: 05 October 1988
• Court: Transvaal Provincial Division

Goldstone J:

The applicant is a qualified medical doctor. She graduated with the degrees of MB BCh of the University of the Witwatersrand in 1985. She completed her internship at Baragwanath Hospital, Soweto in F 1986. Thereafter she applied for and was granted a post as a senior house officer in internal medicine at Baragwanath Hospital for the first half of 1987. Baragwanath is a provincial hospital and such appointments are required to be made by the Transvaal Provincial Administration. They are appointments made for periods of six months. The applicant made a further application for appointment to the same position for the G second half of 1987. That too was successful. In about September 1987 the applicant applied for a senior house officer post at Baragwanath Hospital in paediatrics for the first half of 1988. By letter dated 18 November 1987 the applicant was informed by the superintendent of the Baragwanath Hospital that the application had not been approved. That H decision in respect of the applicant and in respect of five other medical doctors formed the basis of an urgent application which came before me in the Witwatersrand Local Division in December 1987 [*] . It emerged in that application that the applicant and the five other doctors whose applications had been turned down had not been afforded any hearing by the official who took the decision. On that ground I the decisions were set aside. The present first respondent was directed to cause the applications in question to be considered either by himself or by any person to whom he might delegate that duty other than the present second and third respondents.

Goldstone J

A Such consideration was ordered to proceed as a matter of urgency prior to 31 December 1987 and after the applicants respectively had been afforded the opportunity of a fair hearing.

Pursuant to the terms of the order the first respondent appointed the fourth respondent to give effect to the terms thereof and B more particularly to afford the applicant and the other five persons a fair hearing and thereafter to make a decision on their applications. They and their attorneys and two witnesses appeared before the fourth respondent on 23 December 1987. The fourth respondent is the director of personnel in the Transvaal Provincial Administration. Written and oral C representations were made to him and in consequence, on 30 December 1987, the fourth respondent informed the applicant that her appointment had not been approved.

In the present proceedings the applicant seeks to review and have set aside and corrected that decision of the fourth respondent. She also seeks an order directing the respondents to take all necessary steps to cause her to be appointed to the position of a senior house officer D at Baragwanath Hospital.

It was common cause in the earlier application that there was only one reason for the refusal to appoint the applicant to the post sought by her. That was the signature by her of a letter addressed by a large number of medical practitioners employed at Baragwanath Hospital to E the South African Medical Journal. The letter was published in the edition of 5 September 1987.

It is similarly common cause in this application that the applicant's signature of the letter is the only reason for the fourth respondent having refused to make the appointment sought by the applicant. F The letter is thus a central issue in this application. It reads as follows:

'To the Editor: A letter signed by 70 doctors employed in the Department of Medicine at Baragwanath Hospital was sent on 12 June 1980 to the South African Medical and Dental Council.

The letter was ignored, as were repeated appeals and pleas to the Transvaal Provincial Hospital Administration. As Baragwanath is a G teaching hospital associated with the University of the Witwatersrand, we have also appealed several times to the Faculty of Medicine and to the Principal of the University to support us in our pleas. Years later, the situation has not improved. Indeed it is worse. 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 H 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 the number of patients. Ablution facilities are far short of 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 I by the authorities. Nothing is done to correct this affront to human dignity. Here is human suffering which cannot be portrayed by mere statistics.

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 enquiries at provincial council level have shown that there is no J basis or justification for this excuse. Secondly, they say that

Goldstone J

A unfortunately there is no money for new facilities. This answer is utterly 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.

B The population of Soweto is very large and resources at Baragwanath 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 not understand (or care) that premature discharge is the order of the day? Even so, the overcrowding C 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. We are making this appeal through the SAMJ in the hope that it may evoke enough response from the profession, at least on humanitarian grounds, to bring about urgent relief to an appalling D situation that it rapidly approaching a major crisis.'

The decision which the fourth respondent was required to make after hearing the applicant was one in terms of s 10(1) of the Public Service Act 111 of 1984. It is there provided that:

'(1)

In the making of any appointment or the filling of any post in the Public Service -

(a)

E no person who qualifies for the appointment, transfer or promotion concerned shall be favoured or prejudiced;

(b)

only the qualifications, level of training, relative merit, efficiency and suitability of the persons who qualify for the appointment, promotion or transfer concerned, and such conditions as may be prescribed or as may be directed by the commission for the making of the appointment or filling of the F post, shall be taken into account.'

Prior to the hearing before the fourth respondent an agreement was concluded between the fourth respondent and the attorneys acting for the applicant concerning the basis upon which the hearing would be conducted. The terms thereof appear from para 4 of the affidavit of G the fourth respondent. The following portions of that paragraph are now relevant:

'4 (a)

... die enigste kriterium wat oorweeg moes word gedurende die aanhoor van die geskiktheid was;

(b)

die enigste rede vir die beweerde ongeskiktheid was die applikante se vereenselwiging met die brief gepubliseer in die H Suid-Afrikaanse Mediese Tydskrif van 5 November 1987 onder die opskrif "Conditions at Baragwanath Hospital";

(c)

die applikante mag regsverteenwoordig word;

(d)

die aanhoor sou wees binne die bedoeling van die Hofuitspraak, naamlik dat die individuele applikante geleentheid gegun sou word om hulle geskiktheid vir die aanstellings te I motiveer. Sodanige motivering sou genoteer word en nie in dispuut geplaas word tydens die verrigtinge nie;

(e)

die applikante sou in 'n posisie wees om geskrewe sowel as mondelingse vertoë te rig gedurende die aanhoor.'

The fourth respondent added in his affidavit further that:

'Dit was dus vir my duidelik dat die enigste aspek wat oorweeg moes word was of die applikante geskik was soos vereis vir 'n aanstelling J in die Staatsdiens deur art

Goldstone J

A 10 van die Wet en om te oorweeg tot watter mate die applikante se vereenselwiging met die brief voormeld hulle geskiktheid onder verdenking plaas.'

He also said the following with regard to the affidavits filed in the earlier application and the disputes of facts which emerged thereform:

'7.

Dit was vir my duidelik dat dit nie aangewese was vir my om te probeer vasstel tot watter mate die bewerings in die B eedsverklarings waar of vals was nie. Dit was vir my duidelik dat daar 'n feitegeskil tussen die partye bestaan het. In sekere gevalle was daar dan ook 'n verskil in persepsie tussen die partye. Waar dit egter gemeensaak was dat die brief onwaarhede bevat het, is dit deur my in ag geneem in die totale beoordeling van die aangeleentheid. Wat egter vir my belangrik was was tot welke mate C die applikante se optrede deur hulle self met die inhoud van die brief te vereenselwig 'n invloed gehad het op hulle aansoek vir die aanstellings spesifiek met betrekking tot hulle integriteit, verantwoordelikheid in die...