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[2010] ZAGPPHC 246
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Peer v Chairperson: Medical and Dental Professions Board and Others (76888/2010) [2010] ZAGPPHC 246 (24 December 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
number 76888/2010
DATE:
24/12/2010
In
the matter between:
DR
F W PEER
…..........................................................................................
Applicant
and
THE
CHAIRPERSON: MEDICAL AND DENTAL
…............................
First
Respondent
PROFESSIONS
BOARD
THE
CHAIRPERSON: AD HOC APPEAL
…........................................
Second
Respondent
COMMITTEE
OF THE HEALTH PROFESSIONS
COUNCIL
OF SOUTH AFRICA
THE
HEALTH PROFESSIONS COUNCIL OF
….................................
Third
Respondent
SOUTH
AFRICA
THE
REGISTRAR: THE HEALTH PROFESSIONS
.............................
Fourth
Respondent
COUNCIL
OF SOUTH AFRICA
THE
MINISTER OF
HEALTH
....................................................................
Fifth
Respondent
JUDGMENT
BOTHA
J:
This
is an application by a medical practitioner whose name has been
erased from the register of medical practitioners that the
penalty
imposed upon him be suspended pending the adjudication of an appeal
against the penalty.
On
22 October 2007 a professional conduct committee (disciplinary
committee) of the Health Professions Council of South Africa (HPCSA)
found the applicant guilty of submitting 22 false medical claims. An
amount of R 8312, 05 was involved. The applicant had pleaded
guilty.
He attributed the false claims to bad administration in his practice,
for which he accepted full responsibility. The penalty
imposed upon
him by the committee was an erasure from the register.
He
then appealed against the conviction and against the penalty imposed
by the committee to an
ad
hoc
appeal
committee (disciplinary appeal committee) of the HPCSA. The appeal
committee dismissed the appeal and upheld the conviction
and penalty
imposed by the professional conduct committee.
The
appellant then appealed, or purported to appeal, against the findings
of the appeal committee in terms of section 20 of the
Health
Professions Act, 1974 (Act 56 of 1974 (the Act). His notice of appeal
was not in order and when he eventually lodged a proper
notice of
appeal, it was out of time. For the purposes of this application I am
prepared to accept that the applicant can regularize
his appeal by
means of an application for condonation.
The
main obstacle to the applicant's application is section 42(1A) of the
Act, which reads as follows:
"42(1A)
If an appeal is lodged against a penalty of erasure or suspension
from practice, such penalty
shall
remain effective until the appeal is heard.
"
(my underlining). For that reason, no doubt, the applicant asks in
Part B of his notice of motion, that section 42(1A) be
declared
invalid because of unconstitutionality. In Part A he asks the interim
relief to which I have already referred.
Mr
Snyman, who appeared for the applicant, tried to surmount the problem
posed by section 42(1A) by arguing that the word "shall"
in
section 42(1A) should be given a directory, and not a peremptory
meaning. It is well known that the word "shall",
when used
in statutes, often has a directory meaning. Thus, if a particular
step
shall
be taken within a certain period, it does not mean that it will be a
nullity if it is taken after the expiry of the period. I find
it
impossible, however, to read the word "shall" in section
42(1A) in such a sense. One cannot substitute "may"
or
"can" for "shall".
Mr
Snyman also referred me to sections 10(4) and 10(5) of the Act. They
read as follows:
"(4)
A decision of a disciplinary committee, unless appealed against,
shall be of force and effect from the date determined
by the
disciplinary committee.
(5)
Where a matter has been considered by a disciplinary appeal
committee, the decision of the disciplinary appeal committee, unless
appealed against, shall be of force and effect from the date
determined by the disciplinary appeal committee."
I
do not think that these provisions can be used in support of an
argument that section 42(1 A) is not peremptory.
If
sections 10(4) and 10(5) are read together with section 42(1 A), it
is clear that when there is an appeal, whether from a disciplinary
committee to an appeal committee, or from an appeal committee to the
High Court, there resides no power in the disciplinary committee
or
the appeal committee, to suspend or postpone the operation of a
penalty amounting to a suspension from practice or an erasure
from
the register. The words
"unless
appealed against"
in
sections 10(4) and 10(5) make that clear. When there is an appeal,
the provisions of section 42(1A) apply, namely that in the
case of an
erasure or a suspension from practice the decision of the
disciplinary committee or the appeal committee shall be of
force and
effect until the appeal is heard. I may add that it was exactly
section 10(5) that gave the appeal committee the power
to order that
its decision would take effect within a month. The period of one
month was determined in all probability with a view
to the fact that
the applicant had 30 days within which he could note his appeal.
It
seems to me, therefore, that one cannot avoid the issue of the
constitutionality of section 42(1A). In the scheme of the notice
of
motion it has to be considered, because the granting of interim
relief presupposes that there will, when Part B is adjudicated,
be a
finding that section 42(1A) is unconstitutional.
I
was referred to an unreported judgment of Bertelsmann J which I found
very instructive. It is a judgment in the Transvaal Provincial
Division delivered on 16 April 2003 under case number 13598/02 in the
case of
Frederik
de Beer v Die Raad vir Gesondheidsberoepe van Suid-Afrika.
The
judge in that case did grant interim relief of the kind asked in this
application, that is permission to remain on the register
pending an
appeal in spite of a penalty of erasure. The judge considered the
constitutionality of section 42(1A). In fact he raised
the issue
himself. In the end, after argument, he accepted, on the strength of
the judgment of the Constitutional Court in
Metcash
Trading Ltd v Commissioner, South African Revenue Service and Another
2001(1) SA 1109 (CC), paragraphs 43 and 46
that
there was no ouster of the court's right of judicial intervention in
section 42(1 A).
I
beg to differ, with respect, as far as the applicability of the
Metcash
case supra
is
concerned. The
Metcash
concerned
the constitutionality of section 36(1) of the Value Added Tax Act,
1991 (Act 89 of 1991) in terms of which a vendor who
wishes to appeal
against an assessment of the Commissioner, must nevertheless pay the
assessment. In paragraph 46 Kriegler J said
the following:
"
It is therefore clear that any decision of the Commissioner to make a
VAT assessment under s 31 and/or to levy additional
tax under s 60,
and not only a refusal by the Commissioner to grant relief under the
power to do so vested in the office by s 36{1)
of the Act... is
subject to judicial intervention in certain circumstances ... Neither
the injunction to pay first, regardless
of a resort to the Special
Court, nor the non-suspension provision is intended or has the effect
of prohibiting judicial intervention.
Nor is there any hidden or
implicit ouster of the jurisdiction of the courts to be found in s 36
as it stands. That section, therefore,
cannot be said to bar the
access to the courts protected by section 34 of the Constitution."
It
is clear to me that the Constitutional Court relied on the fact that
in terms of section 36(1) the Commissioner could grant relief
against
the harsh regime of "pay first, argue later." That flows
from the fact that section 36(1) provided that
"unless
the commissioner so directs"
the
obligation to pay an assessment shall not be suspended by a pending
appeal. What the judgment says is that the exercise of the
Commissioner's discretion (to suspend payment), is subject to
judicial intervention. That, as I see it, saved section 36(1) from
being unconstitutional.
If
that approach is applied to section 42(1 A) it is clear that the
legislator did not grant the court, or the appeal committee,
or any
official, the power to grant relief from the harsh effect of section
42(1 A) if an appeal is noted against an erasure or
a suspension.
What
is, however instructive from the judgment of Bertelsmann J in the
de
Beer case supra,
is
that he was of the view that section 42(1 A) would not pass
constitutional muster if it is not subject to judicial oversight.
In
my view it is an obvious conclusion. For the reasons already given, I
am of the view that section 42(1A) contains no provision
authorizing
anybody to grant relief against the severity of its provisions. There
is therefore no exercise of a discretion that
can be judicially
reviewed. For that reason I am of the view that there is a reasonable
prospect that if Part B of the notion of
motion is pursued,
appropriate relief may be granted.
For
the same reason this court would be entitled to grant interim relief.
I do not think it is necessary for this court, sitting
on an urgent
application, and being concerned with interim relief, to go through
all the procedures that would be required at the
hearing of Part B of
the notice of motion.
The
only other issue is whether there is a reasonable prospect that the
erasure would be upset on appeal. The
pro
forma
prosecutor
did not press for an erasure. The basis of the conviction remains the
applicant's version that he had failed to exercise
proper control
over his staff. It is true that the chairman of the appeal committee
was not entirely convinced that the applicant
was merely negligent,
but it can be argued that the views expressed by him were
contentious. The personal circumstances of the
applicant were
favourable.
For
all these reasons I am of the view that relief in terms of Part A of
the notice of motion should be granted. I shall also order
that the
applicant should launch a substantive application for condonation and
pursue the relief claimed in Part B of the notice
of motion within a
reasonable time.
In
view of the fact that the relief granted by me is dependent on the
relief claimed in Part B, I shall order that the costs of
this round
of the proceedings be costs in the second round.
The
following order is granted:
1.
An
order is granted in terms of prayers 1,2 and 3 of Part A of the
notice of motion.
2.
The
applicant must lodge an application for the late filing of his notice
of appeal by not later than 28 January 2011 and pursue
it within a
reasonable time.
3.
The
applicant must take all the necessary steps to have Part B of the
notice of motion adjudicated within a reasonable time.
4.
If
the applicant fails to comply with paragraphs 2 and 3 above, the
relief granted in paragraph 1 above shall lapse. 5. The costs
of this
application shall be costs in the adjudication of Part B of the
notice of motion.
C
BOTHA
JUDGE
OF THE HIGH COURT