Nonkululo Dastile v The Superintendent General for the Department of Health, Eastern Cape

The applicant had been injured in a motor vehicle collision on or about 1 June 2023 and was treated at Stutterheim Hospital. She made a PAIA request for medical records from the hospital. After unsuccessful appeals, she launched a PAIA application under case number 639/2024, which the State Attorney filed a notice to oppose. The application was enrolled as an uncontested opposed matter and on 8 October 2024, Stretch J granted an order directing the respondent to provide the medical records within 5 court days. The applicant alleged the respondent failed to comply with this order and launched a contempt of court application under a new case number (1104A/2024). The Order was served on the respondent and State Attorney on 28 October and 11 November 2024 respectively. The contempt application was served on 8 and 20 December 2024 respectively and enrolled for hearing on 28 January 2025.

• Whether the contempt of court application was properly constituted and procedurally compliant
• Whether the original PAIA order was sufficiently clear and detailed to enable compliance
• Whether service of the order and contempt application on the respondent and State Attorney was adequate
• Whether the contempt application was prematurely enrolled for hearing given the recess period provisions in the Uniform Rules
• Whether a PAIA application can compel creation of a document that does not yet exist (RAF1 form)
• Whether deficiencies in commissioning of affidavits affected the validity of the application

1. The application is dismissed. 2. There is no order as to costs.

A contempt of court application based on non-compliance with a PAIA order cannot succeed where: (1) the underlying order lacks sufficient detail and accuracy to enable meaningful compliance; (2) service of the order and contempt application fails to provide adequate information to the respondent and State Attorney to understand what is required; (3) the contempt application is prematurely enrolled without allowing the full period for filing a notice to oppose under the Uniform Rules; and (4) the underlying PAIA order improperly seeks creation of documents that do not yet exist rather than access to existing records. A PAIA application is limited to providing access to records that factually exist and are in possession or under control of a public body, and cannot be used to compel creation of new documents. Contempt applications should be brought as applications incidental to the original proceedings to maintain proper case continuity and procedural coherence.

The court expressed concern about an apparent practice developing in the Eastern Cape Division whereby RAF1 medical report forms (which do not yet exist) are routinely included in PAIA requests for records in anticipation of Road Accident Fund claims, without regard to PAIA's objective of facilitating access to existing records. The court also noted its general concern that commissioning of affidavits in all four related matters before it did not meet the requirements of the Justices of the Peace and Commissioners of Oath Act and relevant regulations, warning practitioners that such shortcomings would not be lightly countenanced. The court suggested (without being prescriptive) that the applicant ought to make use of Rule 42 to remedy the lack of important details in the original order and to serve again before complaining about non-compliance. The judgment also references three related matters with identical issues (Mnyande, Galela, and Sompali) indicating a systemic problem with the approach taken by the applicants' attorneys in PAIA matters.

This case highlights critical procedural requirements for PAIA applications and subsequent contempt proceedings in South African courts. It emphasizes the importance of: (1) maintaining proper case continuity by bringing contempt applications incidental to the original proceedings rather than under new case numbers; (2) ensuring court orders contain sufficient detail and accuracy to enable compliance, particularly in PAIA matters where specific records must be identified; (3) providing adequate notice to the State Attorney with full reference details to enable it to fulfill its statutory mandate under the State Liability Act and State Attorney Act; (4) respecting recess period provisions in the Uniform Rules when enrolling matters; and (5) understanding that PAIA provides access to existing records and cannot be used to compel creation of documents that do not yet exist. The case serves as an important reminder to practitioners about the consequences of procedural shortcuts and the court's insistence on proper compliance with rules of practice, particularly when seeking punitive remedies like contempt orders against state organs.