MEC for Health: Gauteng Province v Dr Regan Solomons

The MEC for Health, Gauteng Province issued a subpoena duces tecum against Dr Regan Solomons, a Stellenbosch University professor and medical researcher, seeking documents and data referenced in a published medical article for use in a R29 million medical negligence action against the MEC. Dr Solomons, through his attorneys, asserted that he did not possess or control the requested documents and raised concerns about patient confidentiality under health legislation and ethical rules. Despite being informed that Dr Solomons lacked possession or control of the documents, the MEC launched an urgent application seeking declaratory relief that no privilege existed and compelling production (or disclosure of the whereabouts) of the documents. The High Court found the main relief moot but nonetheless engaged with the merits in the context of costs. The matter proceeded on appeal to a full court and ultimately to the Supreme Court of Appeal.

The appeal was dismissed save for a substitution of the orders of the full court and the court of first instance. The application was struck from the roll. The MEC was ordered to pay the costs of Dr Regan Solomons and the plaintiff from 11 June 2021 onwards, including wasted trial costs and the costs of two counsel, as well as the costs of the appeal.

The case clarifies that South African courts of first instance lack jurisdiction to decide merits where a cause of action has been extinguished before judgment. It reinforces the principle that declaratory relief cannot be granted in a vacuum and that courts should not pronounce on academic issues merely for broader guidance. The judgment is important for civil procedure, particularly concerning subpoenas duces tecum, mootness, and costs, and limits the precedential effect of judgments delivered without jurisdiction.