There has been a growing trend in Review applications where decision makers have refused access to the Record of proceedings (“the record’’)during Review applications launched in terms of Rule 53 on the basis that they are not public bodies subject to the prescripts of the Promotion of Administrative Justice Act(“PAJA”) and their decisions are not subject to review. Consequently, they have no obligation to provide access to the Record.

This stratagem is often deployed to veil a clandestine plan to avoid disclosing material details of the impugned decision like an unlawful and unfair award of a tender to the “successful Bidder”, and further delay the adjudication of the review through a frivolous interlocutory process. Vermeulen AJ closed this door in a well-reasoned judgement on 9 May 2023, in the matter of Metropolitan Health Corporate(Pty) Limited and others V South African Police Service Medical Scheme (“Polmed”) and another (60445/2021)[2023]ZAGPPHC 302 (9 May 2023).
 
He cautioned that courts should be disinclined to entertain challenges to produce the Rule 53 Record directed at the merits of the review application at the early stage where the applicant has not had sight of the Record and had been given an opportunity to supplement its case , as this stratagem will undermine the urgency of and expeditious adjudication of review proceedings. Rule 53 serves an undeniably important purpose and secures the inexpensive and expeditious completion of litigation to further the administration of justice. 

 

In addition, sanctioning such a procedure may create a precedent that can open the doors for potential abuse by respondents in review proceedings who already at this stage, before the delivery of the Rule 53 record would raise defences to the merits of the review application, whether meritless or not, whether by way of opposition to an interlocutory application to compel or whether by way of an application for a declarator and through such actions  that unnecessarily cause a considerable delay in the review proceedings.  It would not be in the interests of justice to sanction such procedure. 

 

The basis for Vermeulen AJ’s decision is found in several cogent reasons supported by Judgements of the Constitutional court and the Supreme Court of Appeal.
Rule 53(1)(b) provides:

53. Reviews
 
(1)   Save where any law otherwise provides, all proceedings to bring under review the decision or proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions shall be by way of notice of motion directed and delivered by the party seeking to review such decision or proceedings to the magistrate, presiding officer or chairperson of the court, tribunal or board or to the officer, as the case may be, and to all other parties affected-
 
(a)       …
 
(b)        calling upon the magistrate, presiding officer, chairperson or officer, as the case may be, to despatch, within fifteen days after receipt of the notice of motion, to the registrar the record of such proceedings sought to be corrected or set aside, together with such reasons as he or she is by law required or desires to give or make, and to notify the applicant that he or she has done so.
 
[Sub-r. (1) substituted by GNR.317 of 17 April 2015.]

 
Rule 53 is intended to facilitate and regulate applications for review. It enables the applicant to gain access to the record of proceedings to ensure that such an application is not launched in the dark. This rule furthers the applicant’s right of access to court by ensuring that both the court, the person challenging the decision and the applicant have all the relevant information to consider the probity or otherwise of the decision. The “quality of arms” between the applicant and respondent ensure that each party has a reasonable opportunity of presenting their case on conditions that do not place them at a substantial disadvantage vis a vis their opponents.

 

Unlike discovery under Uniform Rule 35, rule 53 provides the litigant with information before the case the applicant hopes to present is delineated on affidavit. It allows the applicant to change the scope of its attack on the decision after the receipt of the record of decision without the consent of the opposite party or the leave of the court.

 
The record enables the applicant and the Court fully and properly to assess the lawfulness of the decision-making process.  It allows an applicant to interrogate the decision and, if necessary, to amend its notice of motion and supplement its grounds of review. When the applicant in Review proceedings file its supplementary affidavit, after having had sight of the record, it is , in effect stating its case for the first time.
 

The applicant is entitled to have sight of the record to evaluate its position. Any challenge to the applicants case without the delivery of the record is premature as the applicant is entitled to embellish its case with revelations of a full record .
 
In the judgement of Appellate Justice Brand in Competition Commission v Computicket (Pty) Ltd, Justice Brand reasoned as follows:
 
“[20]  At first sight one could be pardoned for thinking that, in the light of these two concessions the Commission would have no answer to Computicket’s demand for the record which formed the basis of the decision it seeks to challenge.  Nonetheless, the Commission offered not only one, but two answers.  Its first answer was that in order to demand the record, Computicket had to make out a prima facie case for review.  The only basis relied upon for the contention was that Computicket bears the onus of establishing its review grounds.  But as I see it, the basis relied upon amounts to a non sequitur.  I agree with the CAC’s finding that this argument effectively places the cart before the horse.  Not infrequently the ability of an applicant for review to discharge the onus resting on it to make out a case, will depend on considerations appearing – or not appearing – from the record of the material upon which the challenged decision had been made.  Moreover, upholding the Commission’s argument would give rise to a two-stage enquiry on the merits of the case: first, without the record to determine whether the applicant had made out a prima facie case.  If the applicant clears that hurdle, the second stage enquiry then follows to finally determine the merits, this time with the benefit of the record which had now been made available.  The proposed scenario, for which there appears to be no justification in logic, is clearly unsustainable.  Finally, the argument under consideration is not supported by Rule 53.  In terms of this rule, the obligation to produce the record automatically follows upon the launch of the application, however ill-founded that application may later turn out to be.”     

 

The court in Metropolitan was of the view that an adjudication of the merits of the Review application at this stage , is inappropriate and a court should not accede to such a request. A court or applicant, does not know what the record may or may not reveal. Without the record, the applicants Notice of Motion and the Founding affidavit is not finalised.

 

Justice Theron in Mamadi and Another V Premier of Limpopo Province and others(4052/2018)[2020]ZALMPPHC(26 November 2020) held that ,the peremptory language of the rule should be understood against its purpose.Rule 53 is cast in peremptory language and rule would be rendered nugatory if the decision maker is through this step allowed to delay proceedings which are characteristic of trial proceedings. This sort of interlocutory challenge will undermine the urgency of and the expeditious adjudication of Rule 53 proceedings . Sanctioning such a procedure may create a precedent that can open doors for potential abuse by respondents in a review application. The constitutional court in Khumalo V Member of the Executive Council for Education: KwaZulu Natal 2014 (5) SA 579,CC the constitutional court, held that:

 

“In addition, it is important to understand that the passage of a considerable length of time may, weaken the ability of a court to assess an instance of unlawfulness on the facts. The clarity and accuracy of decision-makers’ memories are bound to decline with time. Documents and evidence may be lost or destroyed when no longer requires to be kept in archives. Thus, the very purpose of a court undertaking the review is potentially undermined where, at the cause of a lengthy delay, its ability to evaluate fully an allegation of illegality is impaired.”

 

On this basis Vermeulen AJ  in Metropolitan found that it not in the interests of justice to entertain an attack the competence of the Review application without the provision of a record.

 

Polmed has been refused leave to appeal the Metropolitan decision. The judgement will withstand the scrutiny of the higher courts because its reasoning is underpinned by values enshrined in the Bill of Rights. In a culture of justification, it is unlikely that any court can shelter any administrative decisions which are being reviewed from scrutiny- by refusing access to the record.