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[2016] ZASCA 36
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Botha NO v The Governing Body of the Eljada Institute & Another (20530/2014) [2016] ZASCA 36 (24 March 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20530/2014
DATE:
24 MARCH 2016
Not
Reportable
In
the matter between:
CHRISTIAAN
HERODEMUS BOTHA NO
(In
his capacity as curator ad litem for
CECILIA
PETRONELLA
POTGIETER)
......................................................................
APPELLANT
And
THE
GOVERNING BODY FOR THE ELJADA
INSTITUTE
........................................................................................................
FIRST
RESPONDENT
BADISA
..........................................................................................................
SECOND
RESPONDENT
Neutral
citation:
Botha NO v The Governing Body
of the Eljada Institute & another
(20530/14)
[2016] ZASCA 36
(24 March 2016)
Coram:
Cachalia, Majiedt
and Willis JJA and Fourie and Baartman AJJA
Heard:
7 March 2016
Delivered:
24 March 2016
Summary:
Application for the reinstatement of a
patient, 30 years old, functioning at the level of a child three
years of age, at a community
mental health facility – patient a
danger to herself, other occupants and staff – institution
lacking resources to
cope – audi principle had been extensively
applied – application dismissed in the high court –
application for
leave to appeal to SCA – dismissed –
no reasonable prospects of success.
ORDER
Application
for leave to appeal from:
Western
Cape Division of the High Court, Eastern Circuit Local Division,
George (Griesel J sitting as the court of first instance):
The
application for leave to appeal is dismissed.
JUDGMENT
Willis
JA (Cachalia and Majiedt JJA and Fourie and Baartman AJJA
concurring):
[1]
The appellant, Mr Christiaan Herodemus Botha, who was the applicant
in the court a quo, applied in terms of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA) for a review and
the setting aside of the decisions (a) by the first respondent,
known
as the Governing Body for the Eljada Institute (the Institute) on 19
April 2012 to terminate the care services provided by
it to Ms
Cecilia Petronella Potgieter (Ms Potgieter) and (b) by the second
respondent, known as BADISA (Badisa),
[1]
on 7 May 2013 that she must vacate her residency at the Institute.
The appellant had previously been appointed as Ms Potgieter’s
curator
ad
litem
by
the high court. The Institute is a care home, operated under the
aegis of Badisa, for mentally disabled persons. It is
registered with the provincial government as a ‘community
mental health facility’ in terms of
s 43
of the
Mental Health
Care Act 17 of 2002
. It receives a subvention, but not a full subsidy
from the provincial government. Further financial details concerning
the Institute
were not put before the court.
[2]
The appellant also sought a further order that Ms Potgieter be
allowed to return to the Institute pending the finalisation and
determination of any process, including disciplinary steps, which may
be taken against her in terms of Badisa’s eviction
and service
termination policy of 8 May 2009. The Western Cape Division of the
High Court, Eastern Circuit Local Division, George
(Griesel J)
dismissed the application in its entirety. It also dismissed the
application for leave to appeal. Consequent
to an application
for leave to appeal to this court, it was directed that the
application should be argued before this court in
terms of
s 17(2)
(d)
of the
Superior Courts Act 10 of 2013
.
[3]
The deponent to the appellant’s founding affidavit was Ms
Potgieter’s father, Mr Hermanus Lambertus Potgieter. Ms
Potgieter, who is now 30 years old, was born on 15 February 1986. She
contracted meningitis at birth. As a result, her intellectual
capacity has been severely diminished. She functions at the level of
a child three years of age. Her parents live on the farm known
as
Buffelskloof, near Calitzdorp, approximately 30 kilometres from
Oudtshoorn. They farm ostriches, sheep, cattle and horses.
Her
parents placed her in the Eljada School in Oudtshoorn where she
received care until she reached the age of 18 years. This school
was
established for children with special needs. This school, unlike the
Institute, was operated by the provincial Department of
Education.
[4]
As a result of her mental disability, Ms Potgieter self-evidently
lacks legal capacity and was unable to participate, in any
legally
recognised manner, in any of the issues that have given rise to this
case.
[5]
Once Ms Potgieter reached 18 years of age, her parents applied for
her admission to the Institute. She was admitted to the Institute
on
19 January 2005. It is one of four privately operated facilities
(also referred to as ‘programmes’) by Badisa. In
addition
to the Institute, Badisa operates some 160 further programmes
catering for the needs of children, the elderly and other
persons
requiring special care. The Institute itself provides a residential
facility at which approximately 100 adult persons having
intellectual
abilities are taken care of. Of these residents, 23 were housed in
the medical care unit and some 75 other persons,
including Ms
Potgieter, in the main building. There are five housemothers
(‘huismoeders’) on duty at the main building
during the
day and two in the evenings. The quality of care is high.
[6]
Although Ms Potgieter was admitted to the Institute in 2005, the
relationship between her parents, acting on her behalf, and
the
Institute was formalised in terms of a so-called Service Level
Agreement entered into between them only on 1 July 2011. The
Institute has no independent legal personality. At all material
times, it has been Badisa that has acted in relation to Ms
Potgieter’s
father, his wife and their daughter, Ms Potgieter.
Very often, Badisa has done so under the rubric or term of
convenience, ‘the
Eljada Institute’. In these
proceedings, reference was more frequently made thereto simply as
either ‘the Institute’
or ‘the first respondent’,
these terms being used interchangeably with one another. These
technicalities of nomenclature
have no bearing, ultimately, on the
issues to be decided in this case.
[7]
Initially, according to both Ms Potgieter’s parents, she
adapted well at the Institute’s care centre and no problems
were experienced with either her functioning or her behaviour during
her stay there. Later the situation changed, the records of
the
Institute showing a long history of disorderly and disruptive
behaviour. A melancholy record follows.
[8]
On 11 June 2009 a meeting of the professional committee of the
Institute minuted that 25 untoward incidents had been recorded
as
having occurred during that calendar year and that Ms Potgieter had
been aggressive, had injured fellow occupiers by throwing
heavy metal
objects at them and stabbing them with knitting needles, had
assaulted a member of staff, Ms Erna Van Rensburg and
had damaged
property. Despite having altered her medication, her condition had
deteriorated. It was recommended , in order to protect
the
inhabitants of the Institute, as well as staff, that she should be
discharged.
[9]
On 18 June 2009 the executive committee of the Institute confirmed
that the development programme of the Institute could not,
at that
time, provide for Ms Potgieter’s special needs by reason of her
levels of aggression, that she did not participate
in the daily
activities scheduled for her and that she ran away. The executive
committee decided that although the professional
committee had
recommended that Ms Potgieter be discharged, her parents should
rather have her evaluated by a psychiatrist and her
medication be
changed in the light thereof.
[10]
On 1 December 2010 the professional committee noted that the entries
in the incident register indicated that Ms Potgieter regularly
ran
out of the gate when it was opened for motor vehicles and that, when
she walked in the street, she cried, screamed and swore.
She broke
windows and framed glass doors, pulled down curtains and
curtain-rails and assaulted staff and patients, causing them
damage
and injury. She also walked on the roof, posing a risk not only to
herself and but also to others. The committee concluded
that Ms
Potgieter was a threat to other patients, the staff and herself.
Other parents had complained that their wards were afraid
of her
behaviour and had become anxious. The housemothers had become
incapable of looking after her, as well as another 95 patients,
over
weekends.
[11]
The committee noted that there were precedents for other patients
having been discharged from the Institute on account of their
disruptive behaviour, the reason being that the Institute was not
equipped to look after them. Holding the view that this policy
should
be consistently applied, the professional committee recommended that
Ms Potgieter’s parents be informed that the Institute
could no
longer cater for her needs. This recommendation was confirmed
by the executive committee on 7 December 2010. It
decided that the
Institute’s services to Ms Potgieter would be discontinued with
effect from 14 January 2014. A letter to
this effect was sent to her
parents. It concluded with an expression of confidence that
alternative arrangements for her care could
be found.
[12]
In response to this letter, Mr Barry, the attorney for her parents,
who was based in Calitzdorp, wrote to the Institute on
their behalf
on 10 December 2010, expressing his clients’ understanding of
the Institute’s problems with Ms Potgieter
but pleaded for
recognition that it would be very difficult to find an expeditious
resolution of the problem. Mr Barry also mentioned
that his clients
had arranged an appointment for Ms Potgieter with a psychiatrist with
a view to finding a long-term solution to
the problem.
[13]
In this correspondence, Mr Barry did, however, draw the Institute’s
attention to his client’s claim that Ms Potgieter’s
remaining there was protected in terms of s 26(3) of the
Constitution, 1996 and that the executive committee had no authority
to make the decision which it had. He claimed, inter alia, that his
clients had been denied the right of
audi
alteram partem
. He nevertheless
concluded his letter with an assurance that his clients did not wish
to complicate matters or drag out a dispute
but requested that his
clients be afforded a reasonable opportunity to find a solution to
the problem.
[14]
The management of the Institute convened a special meeting on 12
January 2011 in order to consider the matter. They noted that
in
November 2010, Ms Potgieter’s mother had been orally informed
that it seemed that the Institute would not be able to continue
with
the care of her ward and had requested her to attend the meeting of
the professional committee of 1 December 2010. She had
not been able
to attend that meeting. Against this background of events, the
management of the Institute decided to hold a meeting
with Ms
Potgieter’s parents and their attorney, Mr Barry, on 13 January
2011 – the very next day.
[15]
At this meeting on 13 January 2011, Mr Barry requested for an
opportunity for his clients to explore alternatives, especially
as it
was the holiday season at that time. He reiterated that the
audi
principle applied – that his clients had a right to be heard
before any decision adverse to either their or their ward’s
interests be taken by the Institute. He requested a three-month
postponement of any final decision concerning Ms Potgieter’s
fate with the Institute.
[16]
At the heart of this case is the tragic problem that there are few
alternative institutions into which Ms Potgieter can be
placed. This
opinion was expressed inter alia, by Dr Johan Fourie, the
psychiatrist, who had treated Ms Potgieter in both 2012
and 2014.
Nevertheless, the Institute has said that there is indeed a similar
institution in the Oudtshoorn area, known as Bellinghanhof,
which has
the advantage of a psychiatric section.
[17]
A positive outcome, albeit temporary, derived from this meeting. Ms
Potgieter returned to the Institute on 14 January 2011.
The executive
committee noted that Ms Potgieter’s medication had been changed
and that she now seemed much calmer. In these
circumstances, the
staff unanimously agreed that her parents should be afforded a
reasonable opportunity to find alternative care
for her. Accordingly,
it was decided that Ms Potgieter could stay at the Institute until 14
April 2011 – for a further three
months – and that a
further meeting would be held with her parents on 13 April 2011 to
discuss ‘the road ahead’.
Furthermore, it was decided
that, in the meantime, a plan for her care would be drawn up and that
her behaviour, as well as her
response to the altered regime of
medication, would be monitored: everything that was relevant should
be carefully recorded and
evaluated in co-operation with her parents.
All of this was done and included a meeting with Ms Potgieter’s
mother on 10
February 2011.
[18]
A further meeting was held on 29 June 2011 at which, among others,
the Reverend Willem Smit attended as an ombudsman and Ms
Louw acted
as chairperson. On this occasion, it was confirmed that Ms
Potgieter’s disruptive behaviour remained a huge problem.
Complaints about her behavior had been received not only from members
of staff but also other patients at the Institute. She had,
for
example, broken a bathroom mirror with her forehead as well as the
reinforced glass in a double-door. Ms Potgieter’s
mother
reported that she had looked around extensively for another place,
suitable for her daughter’s care but had been unsuccessful.
The
Reverend Smit emphasised, however, that Ms Potgieter could not remain
at the Institute if her behaviour continued to be disruptive.
It was
recorded that the meeting had taken place ‘in a good spirit’
and that her parents were deeply mindful of the
dilemma faced by the
Institute and that the Institute was aware of their concerns about
the welfare of Ms Potgieter over the longer
term.
[19]
In the meantime, the Service Level Agreement was signed on 1 July
2011. In that agreement, Ms Potgieter’s father was
defined as
‘the client’, Ms Potgieter as ‘the occupant’
and Ms Potgieter’s mother as ‘the authorised
person’.
This agreement recorded that a three month probation period, from the
date of signature thereto, would be applicable
and that if it
appeared that the Institute was not suitable for Ms Potgieter, the
client would be responsible for alternative care
for her. The
agreement does not stipulate, in clear and direct terms, to whom it
must appear that the Institute was not suitable.
I shall assume, in
favour of Ms Potgieter’s father, that the criterion was
intended to be an objective one.
[20]
The Service Level Agreement also records that the client understood
that basic services, including basic nursing care only,
would be
provided for Ms Potgieter. The agreement stipulates that Ms Potgieter
could be discharged from the Institute in terms
of the second
respondent’s Policy on the Termination of Services, dated 8 May
2009. A copy of this policy was annexed to
the agreement. This
policy pertinently refers to disruptive behaviour on the part of the
occupant as a ground, which among
others, could justify her discharge
from the Institute.
[21]
Clause 11.2 of this Service Level Agreement deals with the grounds
for termination of the service level agreement and the ending
of
services. There are only two subclauses to clause 11.2 that are
relevant and which have absorbed the attention both of this
court and
the high court. These are subclauses 11(2)
(d)
and 11(2)
(e)
.
Sub-clause 11(2)
(d)
provides that termination of services may result where the occupant’s
needs have changed and the person’s profile no
longer meets the
original criteria for admission. Subclause 11(2)
(e)
provides that an occupant may be discharged as a result of misconduct
and contravention of the house rules. It records that
the
provisions of BADISA’s expulsion and Termination of Services
policy of 8 May 2009 apply and refers to an attached annexure.
This
policy is comprehensive. It provides a detailed process for
expulsion, including the holding of a hearing, the exploration
of
alternatives and stipulates that the rules of natural justice, human
rights and relevant legislation (‘relevante Wetgewing’)
must apply to any decision-making process that may end in expulsion.
[22]
The executive committee convened a meeting on 21 July 2011 to
consider the matter. It took note of the discussions that had
taken
place on 29 June 2011, as well as a summary of incidents in which Ms
Potgieter had been involved between 14 January and 20
June 2011,
including entries in the records relating to these incidents, over
the period from 4 to 19 July 2011. This meeting noted
‘with
concern’ that two members of staff had been injured during this
time and that one of them had, as a result thereof,
taken sick leave
from 22 to 27 July 2011. It decided that Ms Potgieter’s parents
should be informed of all these facts and
that, as a result thereof,
it would recommend to the management of the Institute that their
services for Ms Potgieter should come
to an end. As will appear more
fully later in this judgment, the appellant’s central
contention during the appeal was that
the process by which this
decision was made was fatally defective inasmuch as Ms Potgieter had
not been represented at this meeting
and a subsequent one on 14
February 2012
[23]
Management decided, however, on 16 August 2011 that the staff should
have a ‘think-tank’ on how Ms Potgieter could
be treated
differently so that the Institute would, indeed, have the capacity to
take care of her. It was also decided that Ms
Potgieter should be
evaluated by Ms Daniella De Kock, an occupational therapist. This
think-tank took place on 30 August 2011 when
it was resolved that the
Institute could not deal with Ms Potgieter in any other manner that
would produce better results and that
the staff responsible for her
care should submit a written request to management as to how best to
make progress in the matter.
[24]
On 8 November 2011 the council for the management of the Institute
considered the report and recommendations arising from the
convening
of the think-tank and decided that Ms Potgieter should, in the
meantime, remain at the Institute pending the outcome
of the report
from Ms De Kock, the occupational therapist.
[25]
In essence Ms De Kock’s reports, two of which were filed
in 2011 and one in 2012, while recognizing the difficulties
which the Institute faced with regard to Ms Potgieter, pleaded with
the Institute to allow for more time for matters to improve.
Ironically, Ms De Kock considered Ms Potgieter’s regular trips
home to her parents’ farm, Buffelskloof, were disruptive
and
unsettling for her and recommended that they should be reduced. A
report by Ms Charlotte Marais, an occupational therapist,
describes
Ms Potgieter’s life at the farm in almost idyllic terms: she
rides horses, plays with plastic building blocks,
colours in
pictures, bakes (under supervision), sets the table, prepares
vegetables for cooking and makes tea.
[26]
Having received this report, a meeting of the Institute’s
management council decided on 14 February 2012 that the Institute
did
not have either the infrastructure or capacity to accommodate Ms
Potgieter, especially on account of the risk which she posed
to the
other occupants and the staff. It considered that it would not be
fair either to Ms Potgieter or her parents to keep her
at the
Institute in view of its inability properly to take care of her.
It decided that the Institute’s services for
Ms Potgieter had
to be terminated and that it should recommend to her parents that she
be taken care of in a more strictly controlled
environment.
[27]
On 19 April 2012 the Institute addressed a letter to this effect to
the parents and informed them that, as from 19 May 2012,
its services
for Ms Potgieter would terminate. Reacting to a letter from Mr
Barry, the attorney, the Institute confirmed
this decision once again
on 15 May 2012 and relayed to him in a letter dated 18 May 2012. In
that letter, the Institute threatened
to bring an application for a
court interdict, in the event that her parents did not remove Ms
Potgieter from the premises on or
before 19 May 2012.
[28]
In response to further pleas by Mr Barry, on behalf of his clients, a
further round-table conference was held on 25 May 2012
at which
representatives of the Institute as well as Ms Potgieter’s
parents were present. Mr Barry, as well as the
Institute’s
lawyers, also attended. At that meeting Ms Potgieter’s father
and his wife agreed to remove Ms Potgieter
from the Institute. They
claim, however, to have reserved the right for her to be placed back
at the Institute ‘at any time’.
The Institute denies not
only that they said so but also that they have any such right. Ms
Potgieter did indeed leave the Institute
during May 2012, being taken
in the care of her parents. A resolution of the council taken on 6
May 2013 makes clear its decision
that it would no longer supply its
services to Ms Potgieter. On 14 August 2012 the Institute decided to
reconfirm its stance. This
decision of the Institute was conveyed in
a letter to Mr Barry dated 10 September 2012.
[29]
In consequence of the refusal by the Institute to readmit Ms
Potgieter, her father brought an application against it in the
magistrate’s court in Oudtshoorn. The magistrate held that Ms
Potgieter should be a party to the application, acting, if
needs be,
though a duly appointed curator
ad
litem
. The magistrate also found that
the Institute had no legal personality and Badisa should have been
joined in the proceedings. The
magistrate then dismissed the
application without dealing with the substantive merits of the
application.
[30]
Ms Potgieter is currently at the home of her parents’ farm,
Buffelskloof. She had been taken there regularly by her parents
for
weekends and holidays ever since her first admission at the Institute
in 2005. He father contends that it is dangerous
for her to be
at the farm and mentions, by way of example, that she escaped into an
ostrich pen and was attacked by one of them
in that enclosure. Ms
Potgieter’s father is 76 years of age. Her mother is ten years
younger than her father. Concerns have
been expressed in the papers
about the advanced age of both Ms Potgieter’s parents.
[31]
Suggestions by the Institute that Ms Potgieter’s parents could
provide for her round-the-clock care and supervision at
the farm were
met with no direct response from them. Her parents nowhere complain
of a lack of financial resources with which to
take care of her.
[32]
After the answering and replying affidavits in the petition to this
court for leave to appeal had been filed, the parties were
required
to file further affidavits setting out the current medical condition
of Ms Potgieter and proposals concerning the steps
that could
reasonably be taken to ensure the safety of others. In response
thereto, Daniella De Kock, the occupational therapist,
filed a
further affidavit on 21 January 2015 in which she referred to her
three previous reports delivered in 2011 and 2012. She
also referred
to the so-called APOM Baseline Assessment form completed by her and
an Occupational Therapy Report completed by her
on 8 December 2014,
after her assessment of Ms Potgieter. Ms De Kock said in that
affidavit that, in her professional opinion,
Ms Potgieter was not a
danger to the personnel or other inhabitants of the Institute and
that she ‘can and should return
there as soon as possible’.
Ms De Kock expressed the view that the staff of the Institute were
trained to ‘read’
the inhabitants and ‘to notice
when they are about to have a temper tantrum and then to take steps
to prevent or curtail
it, for instance to administer appropriate
medication timeously.’
[33]
Dr Johan Fourie, the psychiatrist who, as we have previously seen,
had dealt with Ms Potgieter as a patient in 2012 and 2014,
also filed
an affidavit in response to this court’s directive. He
expressed the opinion that her behaviour could be modified
and
controlled by the administration of medication which would have a
calming effect upon her. He said that he did not consider
that
Ms Potgieter constituted a danger to the other occupiers at or the
staff of the Institute.
[34]
Ms Julia Pead is the mother of a 40 year-old sufferer from cerebral
palsy, who is also a resident at the Institute. She has
worked as a
volunteer at the Institute for six years, during which time she cared
for Ms Potgieter for a period of six months.
She also filed an
affidavit. In that document she said that she had resigned from her
position at the Institute precisely because
of Ms Potgieter’s
aggression. Ms Pead has nothing but praise for the Institute, which
is ‘doing their utmost best to
cater for every resident’s
needs.’ She expressed the view that the Institute is not
suitable for Ms Potgieter
and that she constitutes a danger to
others. Ms Pead attributes at least part of Ms Potgieter’s
aggression to the fact
that she much preferred being at her parents’
farm than at the Institute.
[35]
The factual outline given above is merely skeletal. It is clear from
the affidavits filed of record, as well as the annexures
thereto,
that the Institute was meticulous and thorough in keeping records of
incidents, attempts to address them, the follow-up
thereof and
meetings related thereto. The Institute was in regular telephonic
contact, throughout this period, with Ms Potgieter’s
mother
about the problems it encountered. Recommendations that Ms Potgieter
be closely attended by specialist caregivers were implemented,
from
time to time, at the expense of her parents, but to no avail. Those
who were appointed gave up within very short periods of
time. There
is clear and consistent evidence that the Institute did its best to
avoid taking a decision which it always saw as
one of last resort:
terminating its responsibility to care for Ms Potgieter.
[36]
The appellant has submitted that, although the respondents (and more
particularly, Badisa, by reason of the fact that the Institute
has no
legal personality) constitute a private organization, whose decisions
relating both to Ms Potgieter’s discharge and
not to re-admit
her are reviewable in terms of PAJA because the Institute exercises a
‘public power or performs a public
function’ in terms of
s 1(i)
(b)
of PAJA. In this regard, the appellant relies, inter alia, on the
facts that the second respondent is publicly funded and acts
subject
to government regulation.
[37]
The appellant claims that the Institute acted unlawfully in
disregarding the right which Ms Potgieter had not only at common
law
but also in terms of its own internal rules and policies, by which it
is contractually bound, to a fair disciplinary hearing
before she was
discharged from the Institute. Put differently, the complaint of the
appellant is that the Institute, in coming
to the decision to
terminate its services to Ms Potgieter, acted in disregard of the
principle of
audi alteram partem
.
[38]
The Institute’s response has been that if regard is had to Ms
Potgieter’s degree of mental incapacity, she having
been
represented in a thorough process of consultation over several years
not only by her parents but also an attorney, Mr Barry,
the principle
of
audi alteram partem
had
been more than adequately met.
The high
court found that, even though the decision by the Institute was not
reviewable in terms of PAJA, that it was reviewable
under common law.
It is not necessary to decide whether PAJA applies in this situation.
The parties agree that the decision is
capable of being reviewed
through the application of the principles of natural justice.
Accordingly, I shall deal with it on this
basis.
[39]
As Gauntlett JA said in Lesotho in
Matebesi
v Director of Immigration & others
:
[2]
‘
The
right to be heard (henceforth "the
audi
principle”) is a very important one, rooted in the common law
not only of Lesotho but of many other jurisdictions…It
has
traditionally been described as constituting (together with the rule
against bias, or the
nemo
iudex in re sua
principle)
the principles of natural justice, that "stereotyped expression
which is used to describe [the] fundamental principles
of fairness
(see
Minister
of Interior v Bechler: Beier v Minister of the Interior
1948 (3) SA 409
(A) at 451). More recently this has mutated to an
acceptance of a more supple and encompassing duty to act fairly
(significantly
derived from Lord Reid's speech in
Ridge
v Baldwin
[1964] AC 40
, particularly in
Administrator,
Transvaal v Traub
[1989] ZASCA 90
;
1989 (4) SA 731
(A) and more recently,
Du
Preez v Truth and Reconciliation Commission
supra
[3]
and
Doody
v Secretary of State for the Home Department
[1993] 3 All ER 92
(HL) at 106d-h).’
This
judgment was referred to with approval by Steyn P in
Commander
of the Lesotho Defence Force & others v Mokoena & others
[4]
and Brand JA, also in Lesotho, in
The
President of the Court of Appeal v The Prime Minister &
others.
[5]
[40]
In
that case
Brand
JA went on to say:
‘
The
principle that procedural fairness is a highly variable concept which
must be decided in the context and the circumstances of
each case and
that the one-size-fits-all approach is inappropriate, has been
explicitly recognised by the highest courts in
England
(see eg
Doody
v
Secretary of State for the House Department and Other Appeals
[1993]
3 All ER 92
(HL) 106d-h) and in South Africa (see eg
Du
Preez & another v Truth and Reconciliation Commission
[1997] ZASCA 2
;
1997
(3) SA 204
(A) 231-3;
Minister
of Health & Another NO v New Clicks SA (Pty) Ltd & others
(Treatment Action Campaign & another as Amici Curiae)
2006
(2) SA 311
(CC) para 152). This means, as I see it, that the strict
rules of the
audi
principle
are not immutable. Where they are not strictly complied with, as in
this case, the question as to whether in all
the circumstances of the
case the procedure that preceded the impugned decision was unfair,
remains.’
[6]
[41]
The high court correctly referred with approval to the observation by
Professor Cora Hoexter in her
Administrative
Law In South Africa
,
[7]
that the courts are wary of ‘over-judicialising’
administrative processes.
[8]
In
Hamata
& another v Chairperson, Peninsula Technikon Internal
Disciplinary Committee & others
[9]
this court referred to ‘the potential tyranny of artful
forensic footwork’.
[10]
[42]
The general requirements for a fair hearing have received much
attention in labour law in recent years.
[11]
As was said in
Thebe
Ya Bophelo Healthcare Administrators (Pty) Ltd v National Bargaining
Council for the Road Freight Industry & another
,
[12]
when it comes to judicial review on the grounds of procedural
fairness, a court must be careful not to take an ‘armchair
view’.
[13]
A mechanical,
‘checklist’ approach is also to be avoided in situations
such as this.
[14]
[43]
In the papers the appellant’s complaint was confined to the
allegation that the Institute’s decision to terminate
its
services to Ms Potgieter had been unfairly made because it was
disciplinary in nature and Ms Potgieter had not been represented
at
any disciplinary proceedings. It was only later that it was argued
that the principle of ‘
audi
alteram partem
’ required that Ms
Potgieter should have been represented at the meetings of the
council, including the think-tanks, on 30
August 2011, 8 November
2011 and 14 February 2012 respectively.
[44]
The high court concluded that Ms Potgieter has not been discharged
for misconduct and that the hearings in question had not
been
disciplinary in nature. The high court came to this conclusion for
two reasons. The first is that Ms Potgieter lacked the
requisite
mental capacity to be guilty of misconduct. This finding is correct.
A useful summary of the state of our law as to whether
a person, not
of normal adult capacity, is
culpae
capax
is to be found in
Eskom
Holdings Ltd v Hendricks
.
[15]
As a matter of logic, a person with a mental age of an
infans
is also
culpae
incapax
even
though her chronological age may be different. The second is that a
plain reading of subclause 11.2(e) of the Service Level
Agreement
made it clear, against the background of events, that it could never
have been understood by either the Institute or
Ms Potgieter’s
parents that the issue was one of discipline. On the contrary, the
parties would have understood the issue
to have related to clause
11.2(d) thereof, which is concerned with a change of the needs of a
resident at the Institute from those
which had lead to her original
admission.
[45]
Insofar as the rules of natural justice, procedural fairness and the
principle of
audi alteram partem
are concerned, the high court observed that when regard is had to the
voluminous record, as a whole, in respect of which a short
summary
has been given above, the reader is struck by the long process that
had been followed and the countless meetings that preceded
the final
decisions that were made. The court noted that Ms Potgieter’s
parents played an active role in this process throughout
and they
were kept fully informed of the precise nature of the problems that
the Institute had been experiencing with her. The
high court
correctly took into account that at no stage had any of the factual
allegations concerning the patient been placed in
dispute, contested
or refuted. The high court found that, against this background, to
expect of the Institute that it appoint a
curator
ad
litem
for her and then to conduct a
formal hearing, with oral evidence, restrictions according to the law
of evidence against hearsay,
legal representation and everything that
goes along with this would not only serve no useful purpose; it would
border on the absurd.
I agree with these reasons too.
[46]
Several hearings did, in fact, take place. As for the adequacy of Ms
Potgieter’s respresentation, it is not without significance
that, although the appellant is Ms Potgieter’s curator
ad
litem
, the deponent to his founding
affidavit is her father. Who could be better, in the circumstances,
to represent her on the issue
of her continuing to receive care at
the Institute than her parents? They were actively involved in the
process, over a protracted
period of time. Moreover, the meetings in
respect of which the appellant’s counsel has complained by
reason of the non-attendance
by representatives of Ms Potgieter were
not only internal to the Institute but also followed an extensive
process of
audi alteram partem.
If one takes an overall conspectus of the facts in this matter, there
can be no question that the Institute acted fairly.
[47]
The application for leave to appeal must fail as there are no
reasonable prospects of success in the event that the appeal
were to
be heard. The parties agreed that, in view of the particular
circumstances of this case, there should be no order as to
costs in
the event that the application for leave to appeal were to be
dismissed.
[48]
The following order is made:
The
application for leave to appeal is dismissed.
N
P WILLIS
Judge
of Appeal
APPEARANCES:
For
the Appellant: A De Vos SC
Instructed
by:
Barry
& Mouton Attorneys, Calitzdorp
Phatsoane
Henney, Bloemfontein
For
the Respondents: AM Breitenbach SC (with him AF Schmidt)
Instructed
by:
Johan
Wagener Attorneys, Oudtshoorn
Webbers,
Bloemfontein
[1]
Badisa,
is a faith-based social welfare organisation that provides
professional social welfare and development services. The
organisation started as the welfare services of the Dutch Reformed
Church (Western and Southern Cape) and the Uniting Reformed
Church
in Southern Africa (Cape). It operates as a registered Non-Profit
Organisation and a Public Benefit Organisation committed
to social
development through 153 community-based programmes in the Western,
Northern and Eastern Cape.
It is a juristic person, ultimately directed and controlled by the
Sinodal Commission for Works of Mercy of the Dutch Reformed
Church
(Western and Southern Cape) and the United Reformed Church (Cape).
[2]
Matebesi
v Director of Immigration & others
[1998]
JOL 4099
(Les A) [1998] LSCA 83 at 7-8.
[3]
Du
Preez v Truth and Reconciliation Commission
[1997] ZASCA 2
;
1997
(3) SA 204
(A) at 231C-D.
[4]
Commander
of the Lesotho Defence Force & others v Mokoena & others
[2002]
LSCA 11 para 5.
[5]
The
President of the Court of Appeal v The Prime Minister & others
[2014]
LSCA 1 para 11.
[6]
Ibid.
para 20.
[7]
2012,
Administrative
Law In South Africa
,
2
nd
ed, Juta’s, p366.
[8]
Hoexter
relies, inter alia, on
Dabner
v South African Railways and Harbours
1920 AD 583.
[9]
Hamata
& another v Chairperson, Peninsula Technikon Internal
Disciplinary Committee & others
2002
(5) SA 449
(SCA)
[10]
Para
5.
[11]
See
for example
Modise
& others v Steve’s Spar Blackheath
2001 (2) SA 406
(LAC), especially the references in paras 14 to 35
thereof.
[12]
Thebe
Ya Bophelo Healthcare Administrators (Pty) Ltd v National Bargaining
Council for the Road Freight Industry & anothe
r
2009 30 (ILJ) 31 (W).
[13]
Paragraph
31.
[14]
Although
the contexts are different, it is instructive to read, in regard to
the undesirability of a ‘checklist approach’:
Johnson
& Johnson (Pty) Ltd v Chemical Workers Industrial Union
(1999) 20 ILJ 89 (LAC) para 29;
S
v Manamela & another (Director-General of Justice Intervening)
2000
(3) SA 1
(CC) para 32;
Chevron
SA (Pty) Ltd v Wilson t/a Wilson’s Transport & others
2015 (10) BCLR 1158
(CC) para 34;
Steenkamp
& others v Edcon Ltd
(supra) para 20.
[15]
Eskom
Holdings Ltd v Hendricks
2005
(5) SA 503
(SCA) paras 15 to 17.