M M Van Wyk v Unitas Hospital and Dr G E Naudé

The applicant's husband died while a patient at Unitas Hospital (first respondent). The applicant believed her husband's death was caused by negligence of hospital staff and that she had a claim for damages. Dr Naudé (second respondent), a specialist physician who treated her husband, had prepared a report on nursing conditions at the hospital in his capacity as director of the multi-intensive care unit and chairperson of the hospital board. The applicant sought access to this report under section 50(1)(a) of the Promotion of Access to Information Act (PAIA), believing it would help establish negligence. The Johannesburg High Court granted her access to the report, but the Supreme Court of Appeal reversed this decision on appeal by the hospital. Eleven months after the SCA judgment, the applicant approached the Constitutional Court seeking leave to appeal, also applying for condonation for late filing. The application was set down for hearing on 21 August 2007, but the applicant's attorneys failed to appear due to confusion with another case. The matter was struck from the roll and the attorneys were ordered to pay wasted costs de bonis propriis. The applicant then sought to re-enrol the application. By the time the matter reached the Constitutional Court, the report had been discovered under High Court rules relating to discovery of documents and made available to the applicant (on 1 March 2007), and civil litigation had already commenced with a trial date set for 15 March 2007.

• Whether the application for leave to appeal should be re-enrolled for hearing after being struck from the roll
• Whether condonation should be granted for the eleven-month delay in filing the application for leave to appeal
• What the appropriate test is for granting condonation in constitutional matters
• Whether a matter should be heard despite mootness where important constitutional issues concerning access to information are raised
• Whether the Court should exercise its discretion to hear a matter in chambers on written argument only, without oral argument
• The proper application of Rule 11(4) of the Constitutional Court Rules regarding how applications should be dealt with

The application to condone the late filing of the application for leave to appeal was dismissed. The application for leave to appeal was refused. No order as to costs was made, with the Court expressing hope that the hospital's prior offer to abandon its costs order would still stand.

The binding legal principles established are: (1) The test for condonation in the Constitutional Court is whether it is in the interests of justice, considering factors including the nature of relief sought, extent and cause of delay, effect on administration of justice, reasonableness of explanation for delay, importance of the issue, and prospects of success. (2) An applicant for condonation must give a full and reasonable explanation covering the entire period of delay. (3) Even where important constitutional issues are raised, condonation will not be granted where there is inordinate delay coupled with absence of reasonable explanation, particularly where the matter has become moot between the parties. (4) Inordinate delay induces a reasonable belief that an order has become unassailable, and the principle of finality in litigation entitles parties to closure. (5) Under Rule 11(4), the Constitutional Court has discretion to deal with applications summarily in chambers on written argument, in chambers on affidavits only, or by setting matters down for oral argument, depending on the complexity of issues and what is necessary to dispose of the matter. (6) Material facts affecting justiciability (such as subsequent availability of information sought) must be disclosed to the Court even if they arise after the founding affidavit is sworn.

The Court made several non-binding observations: (1) It noted that issues relating to access to information are often "moving targets" because the time taken for court processes means information may be obtained through alternative means (like discovery rules) or become irrelevant by the time appeals are heard, potentially rendering such matters moot. (2) The Court acknowledged the amicus curiae's submission that access to information matters will invariably be moot by the time they reach the Constitutional Court, and accepted these submissions had force. (3) The Court expressed sympathy for the principle that it may be in the public interest to resolve moot constitutional issues concerning access to information, but found it unnecessary to decide this question definitively in this case. (4) The Court criticized the growing trend of litigants disregarding time limits without seeking proper condonation, noting that in the previous term, eight out of ten matters involved non-compliance with time limits or directions, resulting in postponements and matters being struck from the roll. The Court stated this practice "must be stopped in its tracks." (5) The Court specifically stated it gave little weight to prospects of success and expressed no opinion on that issue. (6) The Court expressed hope that the hospital's offer to abandon its costs order against the applicant would still stand, despite dismissing the application.

This case is significant for establishing strict principles regarding condonation applications in the Constitutional Court, particularly where there are inordinate delays. It demonstrates that even where important constitutional rights (such as access to information under section 32 of the Constitution and PAIA) are at stake, the Court will not assist dilatory litigants who cannot provide reasonable explanations for delay. The judgment reinforces the principle of finality in litigation and sends a strong message against the growing trend of non-compliance with time limits and Court rules. It clarifies the Court's discretion under Rule 11(4) to dispose of matters on written argument without oral hearing where appropriate. The case also addresses the intersection between mootness and condonation applications, establishing that while mootness alone may not bar hearing a matter in the public interest, when combined with inordinate delay and poor explanation, it renders condonation inappropriate. The judgment balances access to justice and constitutional adjudication against the need for procedural compliance and respect for opposing parties' rights to finality.