Member of the Executive Council for Health, Eastern Cape Province v Kirland Investments (Pty) Ltd t/a Eye & Laser Institute

Kirland Investments applied for approvals to establish and operate two private hospitals in Port Elizabeth and Jeffreys Bay under the Health Act 66 of 1977. The Superintendent-General, Mr Boya, initially decided to refuse the applications, but his decisions were never communicated. During his absence, the Acting Superintendent-General, Dr Diliza, approved the applications after being instructed to do so by the MEC, Ms Jajula, allegedly under political pressure. On returning, Boya purported to withdraw Diliza’s approvals without a hearing, asserting they were invalid. Kirland appealed internally to the MEC, who upheld the withdrawal. Kirland then approached the High Court, which set aside the withdrawal and the MEC’s decision, but also (without a proper application) set aside Diliza’s approvals and remitted the matter. Both sides appealed to the Supreme Court of Appeal.

The appeal by the MEC and Superintendent-General was dismissed with costs. The cross-appeal by Kirland Investments was upheld with costs. The High Court order was amended by deleting the paragraphs that set aside Diliza’s approvals and remitted the matter.

This is a leading South African administrative law case affirming that even unlawful administrative decisions exist and have legal effect until set aside by a court in proper review proceedings. It reinforces the functus officio doctrine, the rule of law, and procedural discipline in judicial review under PAJA, preventing administrators from unilaterally undoing their own decisions.