About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2016
>>
[2016] ZAWCHC 108
|
|
Govender v Health Professions Council of South Africa (The HPCSA) and Others (A535/2015) [2016] ZAWCHC 108 (26 August 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: A535/2015
26
AUGUST 2016
In
the matter between:
DR
H
GOVENDER
...................................................................................................................
Appellant
And
THE
HEALTH PROFESSIONS COUNCIL OF
SOUTH
AFRICA (“THE
HPCSA”)
...........................................................................
First
Respondent
THE
MEDICAL AND DENTAL PROFESSIONS BOARD
OF
THE
HPCSA
.......................................................................................................
Second
Respondent
THE
DISCIPLINARY APPEAL COMMITTEE
OF
THE
HPCSA
.........................................................................................................
Third
Respondent
THE
PRO-FORMA COMPLAINANT OF THE
HPCSA
....................................
Fourth
Respondent
THE
PROFESSIONAL CONDUCT COMMITTEE
OF
THE
HPCSA
..........................................................................................................
Fifth
Respondent
Court
:
Justice A Le Grange et Justice J Cloete
Heard
:
26 August 2016
Delivered
:
26 August 2016
JUDGMENT
CLOETE
J
:
Introduction
[1]
This is an appeal in terms of s 20 of the
Health Professions Act 56 of 1974 against the judgment of the third
respondent (the Disciplinary
Appeal Committee of the HPCSA) upholding
the conviction of the appellant by the fifth respondent (the
Professional Conduct Committee
of the HPCSA). For convenience the
third respondent will be referred to as the Appeal Tribunal and the
fifth respondent as the
Disciplinary Tribunal.
[2]
The appellant, a neurosurgeon at Tygerberg
Hospital (“the hospital”) was initially charged with two
counts of unprofessional
conduct, but during the course of the
proceedings before the Disciplinary Tribunal he was discharged on the
second count.
[3]
The first count faced by the appellant
(relevant for purposes of this appeal), which was amended and also
amplified by further particulars
provided by the fourth respondent
(“PFC”), was that he acted unprofessionally when on
15 June 2008 he failed and/or
neglected to correctly complete an
entire notification of death form in respect of one Jacobus Cornelius
Blomerus (“the deceased”)
who passed away at the hospital
in the early hours of that morning as a result of a brain
haemorrhage. The appellant pleaded not
guilty.
[4]
Two witnesses testified before the
Disciplinary Tribunal, namely the deceased’s father, Mr Jacobus
Zacharias Blomerus, who
was called by the PFC, and the appellant, who
testified in his own defence.
The
evidence before the Disciplinary Tribunal
[5]
Mr Blomerus Snr testified that on 1 July
2008 his wife received a letter from his pension fund notifying her
that he was deceased
and that she should therefore make application
for a widows pension.
[6]
From that date his bank account was closed
and his pension payments and other benefits cancelled. He could no
longer use his identity
document, drivers licence or passport and was
unable to take a scheduled trip to Botswana. It took him weeks to
have the error
rectified by the Department of Home Affairs.
[7]
Upon receiving the patently incorrect
notification of his own death Mr Blomerus Snr immediately attended at
the neurology section
of the hospital in order to investigate how
this had come about. He knew that the appellant was one of the
neurosurgeons who had
attended to the deceased. He had met the
appellant for about 15 minutes on the day his son passed away after
having been notified
by the hospital that he was dying.
[8]
He and his wife travelled to the hospital
from their home in Gansbaai where he met the appellant, who explained
the treatment administered
following his son’s admission via
ambulance from Hermanus Hospital a few days earlier, as well as the
tragic inevitability
of his imminent death.
[9]
Mr Blomerus Snr was unable to make contact
with the appellant to assist him in getting to the bottom of the
matter. Nor was he successful
in making contact with the head of that
section. He spoke to one of the secretaries and, in his words ‘
It
came out after they provided some documents to me where we discovered
that there was a mistake in the certificate that was issued’.
[10]
When asked by the PFC whether he knew ‘
who
issued or signed for the death certificate to be issued’
Mr Blomerus Snr replied that, according to the copy of the death
certificate he received, it was the appellant who had done so.
[11]
Mr Blomerus Snr was referred to a
notification of death form on which sections A to D had all been
completed (Exhibit “G(B)”).
Section A reflected the
particulars of the deceased as Jacobus Zacharias Blomerus with
identity number 4……. and date
of birth 17 August 1968.
[12]
He identified the names and identity number
as his own, but testified that he had not seen this particular form
before giving evidence.
He was asked whether he knew how his
particulars had found their way onto the form and replied that he
presumed they were taken
from another form completed by ambulance
personnel who transported his son to the hospital after he had
supplied his particulars
as the deceased’s next of kin.
[13]
Mr Blomerus Snr had assumed that the
notification of death form was fully completed by the appellant
because it bore his signature.
He conceded that he had not witnessed
the appellant completing the form, nor did he know who had in fact
completed it. He was not
able to dispute the appellant’s
version that when he signed the form it contained only certain
particulars completed by a
member of the administrative staff, which
he then signed after having satisfied himself that they were correct.
He was also not
able to dispute the appellant’s version that it
was only after the appellant signed the form that another
administrative
staff member had inserted the balance of the
information reflected therein. That concluded the case for the HPCSA.
[14]
The appellant’s evidence was that he
had contacted Mr Blomerus Snr when his son’s condition
deteriorated following surgery.
He confirmed what was discussed with
Mr Blomerus Snr on arrival at the hospital and testified that it was
some 14 to 16 hours later,
early on the morning of Sunday 15 June
2008, that the deceased passed away.
[15]
The appellant explained that the standard
procedure in place at the hospital at the time was as follows. When a
patient was admitted
to a ward he arrived with 4 patient stickers and
a file already prepared by administrative staff in the admissions
section. Each
sticker reflected the patient’s forename and
surname, his date of birth, gender, home language and allocated
inpatient (IP)
number. No other personal particulars were provided
whether on the patient’s stickers or in his patient file.
[16]
He was referred to copies of the deceased’s
hospital stickers (Exh “H”) which contained the names
Jacobus Blomerus,
his date of birth of 17 August 1968, his gender,
his home language as Afrikaans and his IP number of 7………….
[17]
The appellant also explained the hospital’s
standard procedure to be followed upon the death of a patient. The
first step
was to identify the patient with reference to the
information contained on his hospital stickers and inpatient number
as it corresponded
to that reflected on the patient’s file.
[18]
The next step entailed entering the
relevant information concerning the date, time and cause of death in
the inpatient folder. This
data was then passed on to the
administration department for a notification of death form to be
generated via a central depot and
returned for the doctor concerned
to sign.
[19]
It was the appellant’s evidence that
upon receipt of the notification of death form he checked the
particulars completed thereon
by one of the administrative staff
against the information contained on the deceased’s hospital
stickers which were returned
with his file for this purpose. This was
the only information which he had available to him to confirm they
were correct. He checked
that it correctly contained the deceased’s
forename and surname, his date of birth, date of death and inpatient
number. He
thereafter signed the form and it was returned to the
administration department. The appellant’s evidence accorded
with what
was contained in Exh “G(A)”, being a partially
completed notification of death form bearing his signature.
[20]
The appellant was referred to a letter he
wrote by hand on the day of the deceased’s death requesting the
hospital’s
pathology unit to conduct a post-mortem examination
at the instance of the deceased’s spouse in which he also
requested them
to re-issue a full death certificate thereafter. He
explained that the deceased’s spouse subsequently changed her
mind and
that no post-mortem examination was in fact carried out.
[21]
It was also the appellant’s evidence
that it was standard procedure, once the notification of death form
was signed by the
doctor concerned, that it was returned to the
administrative section for those staff to complete the remaining
particulars such
as the deceased’s identity number and details
of next of kin (referred to in section B as ‘
particulars
of informant’
). The doctors did
not have access to this type of information which was captured by the
administrative staff at the time of a patient’s
admission and
stored on their computers.
[22]
As it turned out, an unidentified
administrative staff member then erroneously transposed the
particulars of Mr Blomerus Snr with
those of the deceased in the
blank spaces still left on the form. This administrative error
resulted in the final version of the
notification of death form
reflecting the deceased’s identity number as that of Mr
Blomerus Snr (although the date of birth
in the same section was
clearly that of the deceased), and the insertion of Mr Blomerus
Snr’s second name of Zacharias
instead of the deceased’s
second name of Cornelius. It also resulted in the deceased being
reflected as the informant (or
his own next of kin).
[23]
The appellant’s evidence was further
that the particulars of the funeral undertaker and the deceased’s
thumbprints appearing
on Exh “G(B)”, and which thus
formed part of the entire form, would have been attended to by the
undertakers concerned
and the mortuary staff respectively. The doctor
signing the notification of death form did not take the deceased’s
thumbprints
and again would have no information about the undertakers
engaged to attend to the burial or cremation.
[24]
The appellant thus confirmed that he had
not personally completed the entire form (which was the charge that
he faced) and moreover
pointed out that his handwriting was different
to that of the persons who at various stages completed the rest of
the form.
[25]
None of this evidence was challenged in
cross-examination save that the PFC tried to persuade the appellant
to concede that the
number 7, wherever it appeared on the form, had
been written by the same individual. The appellant correctly
responded that they
differed in appearance, given that some were
crossed and others were not. The PFC then asked the appellant to
confirm that when
he signed the form he was verifying that the
particulars of the deceased reflected in section A were correct. When
the appellant
tried to repeat his earlier evidence that at the time
he signed the form the particulars then reflected were correct, the
chairperson
of the Disciplinary Tribunal ruled that he was only
permitted to answer with a yes or a no. When he was thereafter
specifically
asked what information had been included when he signed
the form, the appellant remained consistent in his account.
[26]
Thereafter certain questions were posed by
the chairperson, one other member and the legal advisor of the
Disciplinary Tribunal.
These questions either related to collateral
issues or were answered by the appellant in a manner entirely
consistent with his
earlier evidence. In response to a question by
the chairperson he explained that an inpatient file contained
information of a clinical
nature only, and repeated that particulars
such as a patient’s identity number, telephone number, address
and next of kin
would not be found therein. That concluded the
evidence.
The
findings of the Disciplinary Tribunal
[27]
In its judgment the Disciplinary Tribunal
formulated the issue as follows at para [35]:
‘
The
crux of this inquiry is whether the pro-forma complainant has on a
balance of probabilities proved that the respondent has failed
or
neglected to correctly complete the Notification of Death form…’
[28]
The Disciplinary Tribunal rejected the
appellant’s version on the following grounds. First, although
he alleged that all of
the demographic data of Mr Blomerus Snr
and the deceased was not contained in the clinical file, and was kept
by administrative
staff who refused him access to that information,
he could not explain how and where he got Mr Blomerus Snr’s
details in
order to contact him when his son was dying.
[29]
Second, it found that the appellant was not
a credible witness because he evaded simple questions that required
him to answer with
a yes or a no, and gave long, irrelevant and vague
responses. Third, he materially contradicted himself in relation to:
(a) when
the information of Mr Blomerus Snr and that of the deceased
ought to have been completed on the form; and (b) who precisely it
was who had completed the particulars thereon. The Disciplinary
Tribunal regarded as particularly damning of the appellant that
he
could not explain the presence of two different sets of handwriting
in section A of the form.
[30]
It then proceeded to find by majority that,
because the form requires the person signing it to verify the
accuracy of the information
contained in section A (being the
particulars of the deceased), which information was incorrect, the
appellant was guilty as charged.
The
findings of the Appeal Tribunal
[31]
The appellant advanced 3 grounds of appeal
before the Appeal Tribunal (the same grounds were advanced before
us). They were that
(a) the Disciplinary Tribunal erred in dismissing
an application for the discharge of the appellant at the close of the
HPCSA case;
(b) a proper evaluation of the evidence would have
resulted in the appellant’s acquittal; and (c) there were
irregularities
in the conduct of the chairperson and in the failure
by the Disciplinary Tribunal to disclose in its judgment which
members constituted
the dissenting minority and the reasons for their
dissent.
[32]
For the reasons that follow later I will
only refer to the Appeal Tribunal’s finding on (b) above.
[33]
Although it correctly accepted that it had
not been proven that the appellant completed the entire form (which
of course was the
charge that he faced) the Appeal Tribunal dispensed
with the submissions of the appellant’s counsel in this regard
in the
following way. First, it found that the amplification of the
charge by the PFC to specify that the form was completed in full by
the appellant did not mean that the HPCSA had relied on completion of
the entire form as the unprofessional conduct with which
the
appellant had been charged. It reasoned at para [25] of its judgment
that:
‘
For
instance, it could not have been understood from the reply to a
request for further particulars that the appellant completed
the Form
to mean that the appellant also completed the Section of the Form
that was meant to be completed by the funeral undertaker…’
[34]
Second, it rejected counsel’s
argument, based on the evidence, that when the appellant signed the
form, the information reflected
in section A was correct. It found
that:
‘
This
argument is baffling. It cannot be that the information in Section A
is correct at some point and incorrect at some other point
subsequently.’
[35]
Without embarking on a proper evaluation of
the evidence, the Appeal Tribunal proceeded to conclude that ‘
the
appellant failed or neglected to correctly complete the Notification
of Death Form when he completed Section D2 of the Form’.
It thus dismissed the appeal.
Discussion
[36]
It bears emphasis that what the
Disciplinary Tribunal was called upon to determine was whether the
HPCSA had proven, on a balance
of probabilities, that the appellant
was guilty of unprofessional conduct for having incorrectly completed
all of the particulars
on the notification of death form, because
this was the only charge that he faced.
[37]
The charge, as originally formulated in the
charge sheet, was that:
‘…
you
are guilty of unprofessional conduct or conduct which, when regard is
had to your profession, is unprofessional in that on or
about 15 June
2008, in respect of Jacobus Cornelius Blomerus (hereinafter referred
to as “the deceased”), you acted
in a manner that is not
in accordance with the norms and standards of your profession in that
you:
1.1
failed and/or neglected to correctly complete the Notification of
Death forms with the names of the deceased to be Jacobus
Zacharius
[sic]
Blomerus,
whereas in fact and in truth, the deceased is Jacobus Cornelius
Blomerus…’
[38]
The reference to ‘
forms’
was subsequently amended to ‘
form’
.
In the request for further particulars delivered on behalf of the
appellant the following pertinent questions were asked:
‘
33.
By whom was the information contained in each of the aforesaid
Notification of Death forms allegedly completed and/or filled
in?
34.
Does the pro-forma complainant dispute that the respondent did not
complete and/or fill in Part A in any of the aforesaid forms?’
[39]
In its reply to such request the HPCSA
responded ‘
by Dr H Govender’
and ‘
yes’
respectively. Accordingly, at the commencement of the hearing before
the Disciplinary Tribunal, the case that the appellant was
called
upon to meet was that he had completed all of the information in the
notification of death form, including all of the information
contained in part (or section) A, being all of the particulars of the
deceased. As was held in
Law Society v
Nel
2012 (4) SA 274
(SCA) at para [8]:
‘
[8]
It is self-evident that a charge against a legal practitioner in a
disciplinary enquiry must be formulated with adequate particularity
to enable that legal practitioner to answer the charge, and the
enquiry must be restricted thereto. It also follows that a council
which initiates a disciplinary enquiry is bound by the charge/s which
it prefers against a legal practitioner.’
[40]
In
De La
Rouviere v SA Medical and Dental Council
1977 (1) SA 85
(N) at 97D-G the test in matters of this nature was
formulated as follows:
‘
There
can be no quarrel with an approach that the respondent is the body,
par excellence
,
to set the standard of honour to which its members should conform and
to decide, upon proved facts, whether or not a member’s
conduct
conforms thereto. There are however two legs to an enquiry of this
nature: to establish the facts and then upon those facts
to conclude
whether or not the proved conduct falls short of the required
standard. This also appears from reg. 14 (
c
)
which enjoins the body holding the enquiry (the Council or the
disciplinary committee) to determine, firstly, whether sufficient
facts have been proved to its satisfaction to support the charge and,
secondly, whether the charge so supported constitutes improper
or
disgraceful conduct. The setting of the required standard of honour
is more of a subjective nature and, as it is a function
entrusted to
the respondent, a Court will be slow to interfere with a decision
honestly arrived at. The same consideration does
not necessarily
apply to the first leg of the enquiry which is more an objective one.
The members of the Council are not, by virtue
of their training and
profession, necessarily in a better position to decide whether
certain conduct has as a fact been proved
or not. A Court will
accordingly, depending upon the particular circumstances, be less
slow to interfere with such a factual finding.’
[41]
It will be noted that reference is made in
the above quoted passage to regulation 14 (c), which was one of
the regulations
applicable at the time. The current regulations
(published under GN R 102 in GG 31859 of 6 February 2009) somewhat
inexplicably
have no similar provision. However
De
La Rouviere
is still good law.
[42]
It is trite that an appeal court will be
reluctant to upset the factual findings of a trial court (or, in this
case, a tribunal),
and will only do so if satisfied that there has
been a material misdirection which, broadly speaking, can fall into
one of two
categories. The first is where the findings on the proven
facts are flawed. The second is where the reasons for the tribunal’s
findings may, as far as they go, be satisfactory, but the tribunal
has overlooked certain facts or has failed to properly consider
the
probabilities.
[43]
In
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie SA and
Others
2003 (1) SA 11
(SCA) at para [6]
the Supreme Court of Appeal, referring to certain factual and
credibility findings made by the trial court, held
as follows:
‘
But
this appraisal does not seem to have depended on an analysis of the
various factors enumerated in the previous paragraph but
largely on
the Court a quo’s estimation of the overall probabilities.
If that estimation is shown to be suspect, so
too must be the Court a
quo’s conclusions on credibility.’
[44]
I have certain fundamental difficulties
with the reasoning and findings of the Disciplinary Tribunal. First,
it was wrong to conclude
that the appellant could not explain how and
where he obtained Mr Blomerus Snr’s details in order to contact
him when his
son was dying. There is nothing in the record to
indicate that he was ever even asked this question. In addition,
neither Exhibits
“G(A)” or “(B)” reflect a
contact telephone number for Mr Blomerus Snr, although provision is
made therefor.
Moreover, it was never the appellant’s testimony
that he was refused access to this information by the administrative
staff,
but merely that he, and other doctors, had no direct access to
it. There are thus any number of possibilities as to how the
appellant
was able to make contact, but given the absence of any
evidence adduced in this regard they would be nothing more than
speculation.
[45]
Second, the record reflects that the
appellant neither evaded questions nor did he give long, irrelevant
and vague answers. Indeed,
the Disciplinary Tribunal’s legal
assessor, Adv Singh, remarked when he was questioning the appellant
that ‘
I think you gave your
evidence in a very cogent and clear way’.
That
the appellant was at times inappropriately stifled in giving his
account, and eventually became somewhat irritated by
having to repeat
himself, often more than three times in relation to a single aspect,
cannot redound on his credibility.
[46]
Third, the appellant did not materially
contradict himself on any relevant aspect of his testimony. His
consistent and in fact uncontested
evidence about the standard
operating procedures at the hospital (over which he had no control)
established that he had followed
them meticulously, and there was
simply nothing placed before the tribunal by the HPCSA to gainsay his
version.
[47]
Fourth, there is no merit in the tribunal’s
finding that the appellant could not explain the presence of two
different sets
of handwriting in section A of the form. That is
precisely what he did when explaining the hospital’s standard
operating
procedure. Moreover, even a cursory comparison between his
handwriting contained in Exhibit “J” (being the request
for the post-mortem investigation) and the handwriting appearing on
Exhibit “G” makes it abundantly clear that it was
not his
handwriting in the body of that form. It is now settled law that a
court is itself entitled to compare handwriting specimens,
even where
expert evidence is adduced: see
S v
Boesak
2000 (1) SACR 649
(SCA) at para
[57]. Of course, no expert evidence was adduced in the present
matter.
[48]
Fifth, while it may be that the wording of
the form indicates that the person signing it verifies the accuracy
of the information
contained in section A (being the particulars of
the deceased), the appellant’s uncontroverted evidence was that
when he
signed the form, the particulars then reflected thereon were
accurate according to the information that he had available to him.
It was thus wrong of the Disciplinary Tribunal to find that, because
this was required in terms of the wording of the form, whatever
was
subsequently inserted somehow became the appellant’s
responsibility. Put differently, the hospital’s standard
operating procedure at the time may have been questionable, but that
is not the charge that the appellant faced.
[49]
It follows that the HPCSA failed to prove
sufficient facts on a balance of probabilities to support the charge.
Accordingly, it
failed to pass the first leg of the enquiry referred
to in
De La Rouviere
.
The second leg of the enquiry would only have become relevant had
this been done. Accordingly, the appellant was wrongly convicted.
[50]
As far as the findings of the Appeal
Tribunal are concerned, they were fatally flawed. First, it is trite
that the charge against
the appellant stood to be read as qualified
and restricted by the further particulars provided. Second, it failed
to have any regard
to the evidence before the Disciplinary Tribunal
in reaching its conclusion regarding the completion of the
information in section
A, as is borne out by its finding that ‘(i)
t
cannot be that the information in Section A is correct at some point
and incorrect at some other point subsequently’.
[51]
I will now deal briefly with the other two
grounds of appeal. The first relates to the Disciplinary Tribunal’s
refusal to
discharge the appellant at the close of the HPCSA case. I
do not believe that this ground is well-founded. The Disciplinary
Tribunal
cannot fairly be criticised for requiring the appellant to
furnish an explanation for an incorrectly completed form which, it
was
common cause, bore his signature. The second relates to the
conduct of the Chairperson during the course of the proceedings.
While
we may have dealt with the matter differently, I do not believe
that the conduct of the Chairperson was such that there were any
material irregularities, particularly bearing in mind that these were
not proceedings before a court of law presided over by a
magistrate
or judge. As far as the failure to furnish reasons for the dissent of
the minority is concerned, there is no provision
therefore in the
applicable regulations.
Conclusion
[52]
I would thus make the following order:
1.
The appeal is upheld.
2.
The appellant’s conviction and
sentence are set aside.
3.
The costs of this appeal shall be
borne by the first respondent as well as any other respondents who
opposed, jointly and severally,
the one paying, the other to be
absolved.
J I CLOETE
LE GRANGE J
I agree and it is
so ordered.
A
LE GRANGE