MEC for Health: Gauteng Province v Dr Regan Solomons

On 21 May 2021, the MEC for Health, Gauteng Province issued a subpoena duces tecum against Dr Regan Solomons, a Professor in the Department of Paediatrics and Child Health at Stellenbosch University, requiring him to hand over documentation and recordings identified in the subpoena to the registrar. The information was required for a R29 million medical negligence claim. Dr Solomons was co-author of an article on intrapartum brain injury, and the subpoena sought names, case numbers, judgments, raw data, expert reports, medical records and MRI scans relating to cases referred to in the article. Dr Solomons initially claimed privilege based on confidentiality of patient information and ethical obligations. On 10 June 2021, his attorney stated that Dr Solomons did not have possession or control of the documents sought in the subpoena, but had de-identified data which he was prepared to share. Despite this, the MEC launched an urgent application seeking a declaratory order that Dr Solomons had no lawful basis to claim privilege and directing him to hand over the documents. The MEC persisted with the application even after being informed that Dr Solomons did not possess the documents.

• Whether a court has jurisdiction to determine a matter on the merits when the cause of action ceased to exist before judgment at first instance
• Whether declaratory relief can be granted when the underlying claim has been extinguished
• The distinction between mootness on appeal and the absence of a cause of action at first instance
• Whether costs can be awarded based on which party was responsible for pursuing a matter that was no longer live
• The proper procedure for obtaining patient information in medical negligence cases - whether by way of subpoena or application under s 14(2)(b) of the National Health Act 61 of 2003

The appeal was dismissed save to the stated extent. The appellant was ordered to pay the costs of the appeal. The order of the full court was set aside and replaced with an order dismissing the appeal save to the stated extent, ordering the appellant to pay costs, and replacing the order of the court of first instance with: (1) The application is struck from the roll; (2) The defendant (MEC) is directed to pay the costs of Dr Solomons and the plaintiff from 11 June 2021 onwards; (3) The defendant is directed to pay the plaintiff's wasted costs occasioned by the postponement of the trial, including the costs of two counsel.

Where a cause of action has been extinguished before a matter serves before a court of first instance, that court has no jurisdiction to pronounce on the merits of the matter. This is distinct from mootness on appeal, which concerns whether events after judgment render an appeal academic. The term 'mootness' in appellate jurisprudence is not used where the claim has been extinguished before judgment at first instance - the anterior question is whether there was any cause of action at all before the court at the time it made its order. Courts of first instance are not vested with the same power conferred upon courts of appeal to determine discrete legal issues of public importance where no live cause of action exists. Where there is no cause of action, the proper order is to strike the matter from the roll. Any findings on the merits made by a court lacking jurisdiction cannot have precedential value. Costs should be allocated based on which party was responsible for pursuing a matter after the cause of action had been extinguished.

The Court observed that the question whether patient information may only be disclosed through an application brought under s 14(2)(b) of the National Health Act 61 of 2003, as opposed to simply by way of subpoena, was not the relief sought in the notice of motion and no proper basis had been laid for such declaratory relief. The Court noted that to the extent the full court determined the legislative imposition issue vis-à-vis the subpoena, it erred. The Court commented that the real reason the MEC persisted with the application was for future purposes relating to unserved subpoenas against others, such as Prof Smith, and had nothing to do with Dr Solomons. The Court noted that it did not help that Dr Solomons raised his contingent defence (regarding legislative prohibition on disclosure) as a basis for costs. The Court indicated that declaratory relief cannot be made in a vacuum, requiring a proper factual foundation.

This case is important in South African jurisprudence as it clarifies the fundamental distinction between mootness on appeal and the absence of a cause of action at first instance. It reinforces the principle established in Minister of Justice v Estate Late James Stransham-Ford that courts of first instance lack jurisdiction to determine matters on the merits when the cause of action has been extinguished before judgment. The case emphasizes that courts cannot pronounce on academic issues merely because they might have broader societal implications - such jurisdiction is reserved for appellate courts in limited circumstances. It provides guidance on the proper procedural response when a cause of action ceases to exist during proceedings (striking from the roll rather than determining the merits), and demonstrates how costs should be allocated based on which party was responsible for pursuing a non-existent claim. The judgment also touches on the sensitive issue of the proper procedure for obtaining patient information in medical negligence cases, though it does not definitively resolve this question given the jurisdictional defect.