THE judge’s introductory remarks make me want to curl up in a comfy chair and read on: ‘The facts of this matter disclose a sorry tale of mishap, maladministration and at least two failures of moral courage.’

Sjoe! It sounds hot, and the contents of the judgment don’t disappoint. If I tell you the dispute arose in the Eastern Cape, hotbed of poverty, corruption and ineptitude, you might guess we’re going somewhere interesting.

The story begins years ago when Kirland Investments asked for approval to build and operate two hospitals in the Eastern Cape.

Such decisions are made by the superintendent-general – at the time, Lawrence Boya – who decided to turn Kirland down. But his decision was never communicated to Kirland thanks to a ‘mishap’. Before Boya signed the letter he was involved in a car accident. During his resulting six weeks’ sick leave things took a new turn under acting superintendent-general, Nandi Diliza: she formally approved Kirland’s application during October 2007.

Back from sick leave Boya found his decision over-ridden and another application from Kirland waiting for him – this time for more hospital beds. He refused the application, and some time later he wrote to Kirland saying he was withdrawing Diliza’s approval for both hospitals.

Kirland tried an internal appeal to the new health MEC, Pemmy Majodina, but when that failed the doctors went off to court. And this point the moral failures became clear. Diliza said in her affidavit that when she had to decide whether to approve Kirland’s application she was put under pressure from the previous MEC, Nomsa Jajula. Jajula made it clear the provincial executive council wanted Kirland given the go-ahead and that the health department was seen as ‘withholding licences from BEE companies to establish private hospitals.’

Jajula told Diliza that she was ‘under political pressure’. Boya’s decision to turn Kirland down had put Jajula ‘in a bad light in the political arena’ and she instructed Diliza to approve the applications, a move leading to the judge’s comment about ‘maladministration’.

Rather than deciding for herself, the compliant Diliza did as she was told. Moral failure #1

Then Boya returned and discovered what had happened. Instead of taking steps to ensure his original decision was implemented he carped at Kirland’s attempts to increase the number of beds. Why didn’t he act? With Jajula still MEC it was virtually impossible to do anything about her instruction to Diliza, he said. Moral failure #2.

Eventually, following the poor legal advice he was given, Boya attempted to revoke Diliza’s decision and informed Kirland that the deal was off. That led to Kirland trying an internal appeal to the new health MEC and when that failed, to litigation in the high court.

There the judge set aside Diliza’s approval and Kirland took the matter to the Supreme Court of Appeal. It is this recently delivered appeal decision that speaks of maladministration and moral failures.

The appeal court had a number of issues to sort. What was the standing of Boya’s decision, taken before his accident, to refuse Kirland?  – No standing at all, said the appeal court. The decision had not been activated; until it was it could be changed.

What was the standing of Diliza’s decision to approve the application? Since the decision was made on Jajula’s instruction it was invalid. But it still had to be treated as valid until it was set aside on review and Boya couldn’t simply revoke it.

What about the MEC’s internal appeal decision? Her decision was wrong as she made a material error of law.

Finally, what was the standing of the high court order setting aside Diliza’s approval? – It had to be reversed. The appeal judges said that in its court application Kirland had not asked for Diliza’s go-ahead to be overturned; obviously the company wanted exactly what Diliza had decided and would never have asked the court to set it aside.

This leaves Diliza’s invalid decision as the current state of play until and unless it is set aside by a court decision. If the new MEC and Boya want it overturned they will have to bring a proper application. If they don’t act they are bound by Diliza’s moral failure.

The judgment’s a magisterial piece of work. All the more noteworthy because it was written by Acting Appeal Court Judge Clive Plasket, with the unanimous support of the rest of the bench. The same Plasket whom the Judicial Service Commission decided didn’t merit a permanent seat on the appeal court.

MEC for Health v Kirland