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[2011] ZAGPPHC 70
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Vambe v Chairperson, Medical & Dental Professions Board and Others (36873/09) [2011] ZAGPPHC 70 (19 April 2011)
IN THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 36873/09
DATE: 19/04/2011
L
VAMBE
.................................................................................................................
APPLICANT
V
THE
CHAIRPERSON, MEDICAL & DENTAL PROFESSIONS BOARD
…
...................................................................................................................
1st
RESPONDENT
THE
HEALTH PROFESSIONS COUNCIL OF SOUTH AFRICA
…
.................................................................................................................
2nd
RESPONDENT
THE
REGISTRAR, THE HEALTH PROFESSIONS COUNCIL OF SOUTH AFRICA
…
..................................................................................................................
3rd
RESPONDENT
JUDGMENT
MABUSEJ:
[1].
In this application the applicant, a major male surgeon, currently
practising as such at 5th Floor Arwyp Medical Centre, Kempton
Park,
Gauteng, seeks the following orders against the Respondents:
1.1
An order interdicting and restraining the First, Second and Third
Respondents from proceeding with the prosecution of the applicant
on
the charges contained in paragraphs 1 and 3 of the second charge
sheet dated 21 November 2006 and with any other prosecution
on any
other charges that might arise out of the same facts. In the
alternative, an order in terms of the decision of the Third
Respondent, alternatively the First Respondent's decision to
prosecute the applicant on the charges contained in paragraphs 1 and
3 of the second charge sheet dated 21 November 2006 be reviewed and
set aside. In addition the applicant seeks further ancillary
relief.
THE
PARTIES:
[2].
The First Respondent is the chairman of the Medical and Dental
Professions Board, a professional body duly established in terms
of
the provisions of section 15 of the Health Professions Act 1974 (Act
NO. 56 of 1974) ("The Act"). He is cited herein
in his
official capacity as the chairman of the Medical and Dental
Professions Board. The First Respondent conducts business at
553
Vermeulen Street, Arcadia, Pretoria. The Second Respondent is a
juristic person established in terms of the provisions of section
2
of the Act and also conducts its business at 553 Vermeulen Street,
Arcadia, Pretoria. The Third Respondent is the registrar of
the
Second Respondent duly appointed as such in terms of the provisions
of section 12(1) of the Act. He also conducts business
at the same
place as the other Respondents.
PURPOSE
OF THE APPLICATION:
[3].
The purpose of this application is to seek and procure an order in
terms of which the First, Second and Third Respondents are
interdicted and restrained from proceeding with a prosecution of
Applicant on charges contained in the amended charge sheet dated
21
November 2006, in the alternative, an order declaring the continued
prosecution of the applicant as unlawful. This application
is seen
against the following background.
[4].
On 7 May 2007 a professional conduct committee of the First
Respondent held an enquiry ("the enquiry") into a charge
of
unprofessional conduct against the applicant in terms of Chapter 4 of
the Act. Prior to the said enquiry and in terms of Regulation
4(a)
and (b) of the Regulations relating to the Conduct of Enquiries Into
Alleged Unprofessional Conduct Under the Health Professions
Act 1974
published in Government Gazette Nr. R765 dated 24 August 2001 ("the
Regulations"), the applicant was served
with a notice of the
enquiry that enclosed a charge sheet as formulated by the pro-forma
complainant. The notice and the charge
sheet were both dated 21
November 2006 and the notice was issued under the hand of the Third
Respondent.
[5].
The charge sheet contained one count of alleged unprofessional
conduct divided into three sub-paragraphs and read as follows:
"That
you are guilty of unprofessional conduct or conduct which when regard
is had to your profession as unprofessional in
that upon or about May
2005 and in respect of Mr. A.R. Mas (your patient), you acted in a
manner that was not in accordance with
the standards of your
profession in that you performed an endoscopy on a patient to remove
food bolus (sic) and:
1.
Caused the perforation in your patient's esophagus (sic); and/or
2.
Delayed in consulting a thoracic surgeon when it was clear to you
that there was a free perforation into the right pleural cavity;
and/or
3.
Performed a jujenostomy on your patient in an inappropriate manner."
[6].
On receipt of the said charge further particulars to the charge sheet
were sought and furnished from and by the pro-forma complainant
in
pursuance of the Regulations 5(1) and (2) of the Regulations. A copy
of the relevant request for further particulars from the
applicant to
the pro-forma complainant and the pro-forma complainant's further
particulars are attached to the application.
[7].
On 4 May 2007 the applicant's attorney and counsel attended a
pre-inquiry discussion as contemplated by Regulation 6 of the
Regulations. No minutes of the said pre-inquiry discussion were
prepared. However, in terms of the provisions of Regulation 6(b)
of
the Regulations, the pro-forma complainant was advised, on the
applicant's behalf, that the applicant intended pleading guilty
to
the amended charges and furnished the pro-forma complainant with a
plea-explanation containing the guilty plea which would be
tendered
on the applicant's behalf and an exposition of his explanation
concerning the plea. The applicant has attached a copy
of his
plea-explanation to the application.
[8],
The plea that was tendered on his behalf and as formulated in the
plea-inquiry was accepted by the pro-forma complainant as
well as the
facts contained in the plea-explanation. As proof of the confirmation
of the acceptance of the plea-explanation by
the pro-forma prosecutor
the applicant thought it necessary to annex to his papers a verbatim
transcript of the proceedings at
the enquiry of 7 May 2007 and
contends that page 1 of the said verbatim transcript of the
proceedings at the enquiry of 7 May 2007
commencing at 09:14 and
ending at page 2 line 20 where the following was said:
"CHAIRPERSON:
...Are there any preliminary announcements before we come to the plea
or not.
MR
NKUNA: Yes there are. On the charge sheet you will note that there is
one count with three paragraphs, 1, 2 and 3.
CHAIRPERSON:Yes.
MR
NKUNA: I am not proceeding with paragraph 1 and 3.
CHAIRPERSON:You
are not proceeding with 1 and 3?
MR
NKUNA:Yes, and the accused is to plead to paragraph 2.
CHAIRPERSON:
To paragraph 2 only?
MR
NKUNA:Yes.
MR
STRAUSS:Mr Chairman, may I ask through you, Mr Nkuna, do you then
formally
withdraw 1 and 3?
MR
NKUNA: Yes I do.
CHAIRPERSON:
So that is a matter for the record then. So count 2 is the only
remaining one? MR NKUNA: Yes. Just paragraph 2 ...
(intervenes).
CHAIRPERSON:Yes,
does that conclude your preliminary remarks? MR NKUNA:Yes.
CHAIRPERSON:Mr
Farrell, any remarks from you?
MR
FARRELL: Thank you, Mr Chairman. Mr Chairman, my learned friend is
correct, by agreement he is withdrawing paragraphs 1 and 3
of the
charge. The proceedings will only be in respect of paragraph 2 of the
charge.
The
plea in respect of paragraph 2 will be one of guilty as formulated in
a plea explanation which we will be handing up to you
and if I might
just read it into the record. The plea is as follows:
"I
am guilty of unprofessional conduct in that on or about 19 May 2005
and in respect of Mr A.R. Was I failed to timeously
consult a
cardiothoracic surgeon after a chest X-ray demonstrated the presence
of an uncontained esophogeai perforation."
That
is the paragraph to which he pleads guilty and we provide an
explanation in respect of that plea in the document which we will
hand up to you momentarily.
9.2.2
Page 3 of the record commencing at line 22 and ending on page 4 line
6 where the following was stated:
MR
STRAUSS:But I do have a question to address to Mr Nkuna. Mr Nkuna, as
you are aware of the plea of guilty is not strictly in
accordance
with the wording of the remaining count 2. We have a different,
rather different plea. Different plea, worded plea,
that is to say it
Is worded differently from exact wording of the existing charge 2.
Now does that in effect mean you accept it?
That is my first
question. Through you Mr Chairman, do you accept the plea of guilty
as preferred and do you accept the implication,
that it really then
changes count 2?
MR
NKUNA:Yes I do.
9.2.3
Page 4 of exhibit "E" commencing at line 14 and ending at
line 18 where the following is stated:
MR
FARRELL: Possibly just for the record I should indicate that by
agreement between my learned friend and I this is the only document
that will serve before this honourable committee for purposes of
adjudication of the finding of guilty. Thank you.
CHAIRPERSON:
Right, thank you."
[9].
The applicant contends that the facts recorded in annexure "F"
and to which he has referred this court were a culmination
of a
plea-bargain agreement entered into between the pro-forma
complainant, acting personally and in his said capacity, and the
applicant himself, represented herein by his attorney and counsel, on
4 May 2007 which plea-bargain agreement had the following
salient
express terms:
1.
The applicant would tender and the pro-forma complainant would accept
an amended plea as formulated in the plea-explanation in
respect of
count 2 of the charge.
2.
The pro-forma complainant would withdraw paragraphs 1 and 3 of the
charge sheet; and,
3.
that only the facts contained in the plea-explanation would serve
before the professional conduct committee and no further evidence
would be adduced by the pro-forma complainant and himself.
[10].
According to the applicant the withdrawal of paragraphs 1 and 3 of
the said Charge sheet was a material and integral term
of the
plea-bargain agreement and was understood to constitute a final
withdrawal of those charges.The pro-forma complainant, when
concluding the agreement, was or should reasonably have been aware of
the provisions of Regulation 7(t) of the Regulations which
read as
follows:
Yours
Faithfully
Mr.
CM Nkuna Legal Adviser"
[12].
Following the verdict of the disciplinary committee of the First
Respondent, on 6 May 2008 the family of the late Mr. Ilias,
the
patient, instituted civil proceedings against the applicant before
this court under Case Number 21844/08 arising out of the
incidence of
May 2005. The legal representative of the applicant then delivered to
the Plaintiff's attorneys a notice in terms
of Rule 36(4) of the
Uniform Rules in the said action. The Plaintiff's attorneys duly
replied thereto. Included in the documents
that were delivered in
reply, the Plaintiff's attorneys made available to the applicant's
attorneys the following documents:
12.1
The notice, dated 14 May 2008, addressed to Dr. L Vambe at PO Box
1399, Fourways
2055 and given under the hand of the Third
Respondent which state that:
"You
are hereby given notice in terms of provision 4(a) of the Regulations
published under Government Notice Nr. R765 of 2001
(copy of which is
enclosed), that an enquiry into your conduct will be held by a
Provisional Conduct Committee of the Medical &
Dental Board at
Council Chambers Health Professions Council of South Africa, 553
Vermeulen Street, Arcadia, Pretoria on 30 and
31 July 2008 at 10h00.
The Charge sheet as formulated by the pro-forma complainant is
enclosed. As you will notice from the attached
regulations, you may
be legally represented in the act enquiry. You should, however,
timeously make arrangements in this regard.
Given
under the hand of the Registrar of the Counsel on 14 May 2008.
Signed,
Adv. Boyce Mkhize Registrar"; and
12.2
A charge sheet dated 21 November 2006 which was again annexed as "I".
The said
charge sheet read as follows:
"Charge
sheet
That
you are guilty of unprofessional conduct or conduct, which when
regard is had to your profession is unprofessional in that
upon or
about May 200s and in respect of Mr. A.R. llias ("your
patient"), you acted in a manner that was not in accordance
with
the standards of your profession in that you performed an endoscopy
on your patient to remove food bolus and:
1.caused
the perforation in your patient's esophagus; and/or
2.performed
a jejenostomy on your patient in an inappropriate manner"
[13].
It is clear that the said documents constitute a notice as
contemplated in Regulation 4(a) of the Regulations and a charge
sheet. The notice confirmed that a professional conduct enquiry would
be held into the applicant's conduct by a professional conduct
committee of the Second Respondent on 30 and 31 July 2008 at 10h00.
In the circumstances this would have been the second enquiry
into the
conduct of the applicant arising out of the events of May 2005 albeit
on different bases.
[14].
Towards the end of June 2008 the applicant's attorneys telephoned the
pro-forma complainant who confirmed firstly that he
was the pro-forma
complainant in the second enquiry and furthermore that the second
enquiry had been set down for hearing on the
dates stipulated in the
said notice. On 22 July 2008, as required by the provisions of
Regulation 6 of the Regulations, a discussion
was held prior to the
enquiry. The discussion was attended by one Mr. Nkuna who in his
capacity as the pro-forma complainant for
the second enquiry as well
as the applicant's attorney and counsel. The events were recorded in
a letter from the applicant's attorney
to the Third Respondent of the
same date. The said letter dated 22 July 2008 from the applicant's
attorneys to the First Respondent
reads as follows:
"1.
Paragraphs 1 and 3 of the Charge sheet dated 21 November 2006 were
withdrawn by the pro-forma complainant in terms of an
admitted
plea-bargain agreement In this regard the pro-forma complainant's
attention is specifically drawn to the verbatim transcript
of the
professional conduct enquiry of 7 May 2007 and specifically page 2
lines 8 to 11.
2.
The charge sheets dated again 21 November 2006 and attached to the
notice of disciplinary enquiry of 14 May 2008 is a precise
repetition
of the withdrawn charges 1 and 3 of the first charge sheet.
3.
The persistence with the prosecution is in breach of the admitted
plea-bargain agreement, is mala fides in addition to which
it is
unlawful in that it is in breach of the provisions of the Health
Professions Act 47 of 1974 and the provisions of the Promotion
of
Administrative Justice Act.
4.
The Respondent formally notifies the pro-forma complainant that his
repudiation of the plea-bargain agreement is not accepted
and/or his
rights are reserved, including his right and intention in the event
of the court proceedings becoming necessary, to
request a cost order
de bonis propiis against the pro-forma complainant.
5.
In addition to the aforegoing the Respondent does not admit the
jurisdiction of the Professional Conduct Committee to entertain
the
current proceedings and asserts that the proceedings are unlawful.
6.
The Respondent expressly requests the pro-forma complainant to
respond the above recordal.
We
confirm that Mr. Nkuna indicated that he will respond to the above
recordal upon receipt of further sections from his superiors
and by
not later than 23 July 2008."
[15].
On 23 July 2008 the pro-forma complainant responded as follows to the
said letter from the applicant's attorneys:
"We
confirm that at the hearing held on 7 May 2007 paragraphs 1 and 3 of
the Charge sheet were withdrawn in terms of the plea
agreement
according to which your client pleaded guilty to paragraph 2.
We
further confirm that the Charge sheet attached to the notice dated 14
May 2008 is a repetition at (sic) the withdrawn charges.
We
however do not agree with the assertion that the reinstatement of the
charge amounts to repudiation of the plea-bargain agreement
We submit
that there is nothing in law that precludes the pro-forma complainant
from reinstating withdrawn charges or whatever
the circumstances and
that is his prerogative to this effect is not overridden by a
plea-bargain arrangement
We
are therefore of opinion that the proceedings are lawful and within
parameters of our Act
Yours
faithfully,
Mr.
C Nkuna Legal Adviser."
[16].
On 29 July 2008 the applicant's attorneys dealt with the pro-forma
complaints as follows. In the said letter the applicant's
attorneys
stated that:
"2.
The attitude encapsulated in your letter and the reply is legally
unsustainable. In fact your letter demonstrates that
the resumed
prosecution into the conduct of Dr. Vambe is unlawful and in bad
faith.
3.
Our client intends bringing the High Court proceedings in terms of
which he will seek an order:
3.1
directing you, the Registrar and the Medical & Dental
Professions Board to comply with the admitted plea bargain agreement;
and
3.2
interdicting and restraining you, the Registrar and the Medical &
Dental Professions Board from proceeding with the prosecution
of our
client on the charges upon which he previously stood, and currently
stands, arraigned as well as from proceeding with any
other
prosecution on any other charges which might raise of our client's
management of the late Mr. AR liias; and
3.3
You are to pay the costs of the application on a punitive and
appropriate scale.
4.
To the aforegoing, we request that the professional conduct inquiry
set down for Y on 30 July 2008, be postponed, pending final
adjudication of the court proceedin foresaid. Failing such agreement,
we shall request the Professional Conduct Comr to grant our
client a
postponement to enable him to bring the proceedings aforesaic
5.
In the circumstances, we request that the professional conduct
enquiry into the con of our client be postponed by agreement
pending
final adjudication of Court proceedings, in terms of which our client
seeks to stay this and related prosecution.
Yours
faithfully
MACROBERT
INC;"
It
is for this reason that this matter is now before this court.
Accordingly, pending th< decision of this court, the matter
did
not proceed on the appointed dates.
The
applicant has attached to his application as annexure "M" a
schedule of professional conduct enquiries dealt with
by his attorney
in which plea-bargain agreements were concluded. According to the
applicant plea-bargain agreements are a virtually
daily occurrence at
the professional conduct enquiries held by the committees of the
First Respondent in terms of chapter 4 of
the Act. The applicant
submits that it is an entrenched, accepted and part of quasi judicial
proceedings before the disciplinary
tribunal held in terms of chapter
4 of the Act and furthermore that in not one of the matters listed in
the said annexure "M"
has the prosecution been recommended
in respect of charges withdrawn pursuant to plea-bargain agreements.
The
applicant contends that he tendered an altered plea of guilty in
respect of count 2 of the charge as an act of self-conviction,
in
exchange of the following official concessions by the pro-forma
complainant:
1.
that paragraphs 1 and 3 of the said charge sheet would be withdrawn;
and l that only the facts embodied in the plea-explanation
would
serve as evidence before the provisional conduct.
[19].
He contends that had it not been for the fact that a plea-bargain
agreement had been entered into, he would not have tendered
the plea
as he did. In his letter of 23 July 2008 the pro-forma complainant
did not deny his capacity or his authority to enter
into the
plea-bargain agreement. The applicant submits that in any event the
pro-forma complainant was in a similar position to
that of a
prosecutor in criminal proceedings and is in law possessed of the
capacity to enter into plea-bargain agreements and
was not precluded
in law or by virtue of the provisions of the Act from validly
entering into a plea-bargain agreement.
[20].
According to the applicant it was, if not express, certainly implied
or tacit that the withdrawal of paragraph 1 and 3 of
the charge sheet
would be final and that the net effect of the agreement would be
tantamount to a stopping of the prosecution against
the applicant,
inter alio the withdrawal of paragraphs 1 and 3 of the charge sheet
was unconditional in terms of the agreement
and is confirmed as such
in the transcript and this was confirmed in writing by the pro-forma
complainant in a letter of 5 June
2007 in which the pro-forma
complainant confirmed the finalisation of the matter in its entirety
and the fact that he was closing
his file.
[21].
The applicant contends accordingly that the plea-bargain agreement is
a legally valid and enforceable agreement to which the
pro-forma
complainant and the respondents are bound. On that basis the
applicant submits that the attempts to prosecute him in
respect of
the charges which were formally withdrawn against him on 7 May 2007
in terms of a plea-bargain agreement are unlawful
and should be
properly stayed.
[22].
The applicant contends furthermore that the decision to proceed with
his prosecution in breach of a solemn and binding plea-bargain
agreement constitutes an administrative action which is unlawful and
procedurally unfair. It constitutes an administrative action
in
breach of section 3 of the Promotion of Administrative Justice Act 3
of 2000 (Paja) and consequently should be reviewed and
set aside in
terms of section 6 of that Act. The putative attempt to prosecute him
in breach of the plea-bargain agreement is also
a prosecution neither
contemplated nor authorised by the provisions of chapter 4 of the Act
of the Regulations. According to him
the said putative prosecution is
as a result ultra vires the Act and Regulations and accordingly
unlawful.
[23].
The Respondents admit that the applicant faced disciplinary
proceedings before a professional conduct committee of the Board
for
his role in contributing to the death of one of his patients as a
serious charge. They contend however that the applicant pleaded
guilty to one of the three counts in the charge against him whilst
conceding his actions in some respect had amounted to unprofessional
conduct. The Committee of the Board however did not accept his plea.
The Board consequently recharged the applicant with the relevant
two
counts. It is this decision that is an issue in this application.
[24].
According to the Respondents the applicant's attempts to have the
Board interdicted from persuading the two counts in the
charge sheet
against him are essentially an attempt to escape liability for his
actions. The Respondents contend furthermore that
the Board is no
ordinary body. It is the custos morum of the profession and as such
has, in law, the duty to pursue allegations
of unprofessional conduct
against any practitioner who starts to practise in its field. It is
therefore also dominis litis in any
disciplinary process against such
practitioners.
[25].
According to the Respondents, various Committees of the Board are
involved in pursuing allegations of unprofessional conduct
and these
are separate entities constituted differently, each playing a
distinct role in any disciplinary process. A Committee
of
Professional enquiry first decides whether or not an allegation must
be pursued or, to use the applicant's words, whether a
prosecution
must take place. A Professional Conduct Committee then decides on the
guilt of an accused practitioner and therefore
acts as an
adjudicatory body. These Committees of the Board perform duties or
exercise powers granted to the Board and delegated
to them.
[26].
When dealing with allegations of unprofessional conduct against a
registered practitioner, the Board is both a form of plaintiff
and a
judge. In its appointment of a pro-forma complainant to represent the
complainant it does not transfer to him its prerogative
to decide
whether or not allegations of unprofessional conduct it has looked
into warrant a disciplinary enquiry. The Respondent
contends that the
applicant is not entitled to the relief sought for the following
reasons: the plea agreement on which the applicant
relies is invalid
as the pro-forma complainant entered into it without having being
expressly authorised by the Act or Regulations
promulgated in terms
thereof. At any rate the Board is not bound by the plea-bargain
agreement. Nothing the pro-forma complainant
does, as a
representative of the complainant, binds the Board. There was no
decision of the Board or any of the Committees to withdraw
charges 1
and 3 against the applicant and only the Board could withdraw these
charges.
[27].
An enquiry only takes place if the committee of preliminary enquiry
decides it should, having determined that the allegations
warrant
such further enquiry. The pro-forma complainant merely represents the
complainant in the process initiated by the committee
of the
preliminary enquiry. According to the Respondent if the
plea-agreement is considered valid it contains two implied terms,
firstly, that the committee accepts it and finds the applicant guilty
and that one of the penalties available to the committee
be imposed
on the applicant. The Committee's decision to find the applicant not
guilty meant the plea-agreement was not accepted
by the committee. He
was not sanctioned at all for his actions. The pro-forma complainant
was therefore no longer bound by the
plea-agreement and in these
circumstances was able to formulate charges against the applicant
based on the original complaint and
according to the still standing
resolution of the committee of preliminary enquiry.
[28].
The Respondents state that the applicant cannot, in all fairness,
expect to walk away scot-free as granting him the relief
sought would
entail, after acknowledging at least in part that his actions led to
the death of one of his patients. In their answering
affidavit the
respondents raised a point in limine on the basis that the
application is defective for non-jointer of the complainant.
[29].
The Board is a statutory body established in terms of the provisions
of section 15(1) of the Act. It exercises certain powers
including,
in terms of section 41, the power to hold enquiries into allegations
of unprofessional conduct against registered practitioners
and, where
such registered practitioners are found guilty, to impose the
penalties prescribed in section 42(1). Only when a case
forms or is
likely to form subject of a criminal case in a court of law can the
Board postpone the holding of an enquiry until
the criminal case has
been disposed of. Furthermore the Board has a legal duty to pursue
complaints of unprofessional
conduct
made against practitioners registered under the Act. Neither this
legal duty nor the power granted to it under section 41
may be
usurped by any person or body.
[30].
Only a committee to which the Board has duly delegated its powers can
perform this duty legally. The Board has the powers
in terms of the
regulations relating to the functions and functioning of the
Professional Board published under Government Gazette
Number R979 in
Government Gazette 20371 of 13 August 1999, as amended, to establish
professional conduct committees consisting
of as many persons as it
determines, all of whom are appointed to such committees by the Board
and necessarily include one member
of the Board who acts as the
committee's chairperson. Regulation 3 of the Regulations provides
that such committee's decisions
are of force and effect from the date
determined by the committee.
[31].
The Regulations define a "pro-forma" complainant as a
person appointed by the Board to represent the complainant
and
present the complaint to the committee. The first step in addressing
allegations of unprofessional conduct, which must be contained
in a
written document sent to the Council or the Registrar or the Board,
is to hold a preliminary enquiry. The committee of the
preliminary
enquiry looks at the information before it, including the complaint,
the explanation provided by the registered practitioner,
which he
invited to provide in terms of Regulation 3(i)(D) and any other
relevant information to make a determination whether or
not
sufficient grounds exist for the holding of an enquiry.
[32].
If the committee of the preliminary enquiry so decides, it directs
the registrar to arrange for an enquiry to be held in terms
of
Regulation 3(4). For this purpose the Registrar must ensure a
pro-forma complainant, tasked with the formulation of the charge
sheet based on the complaint and on the resolution of the committee
of the preliminary enquiry, is appointed. The pro-forma complainant
acts on the basis of the committee of preliminary enquiry's
resolution and derives his mandate from it. However, he takes no
further
instructions from the committee of preliminary enquiry or any
other committee or member of the Board. In conducting the enquiry
the
pro-forma complainant has no discretion in the institution of the
enquiry. He acts because a resolution of an enquiry requires
that
both parties, the applicant and the complainant, be before the
committee that will decide whether the applicant is guilty
of the
allegations against him.
[33].
The position of a pro-forma complainant is not akin to that of a
prosecutor in a criminal court. On the contrary he has no
discretion
on whether or not to pursue allegations of unprofessional conduct
against a registered practitioner. The Respondents
contend that
comparing the process by which it is alleged a plea-bargain agreement
was concluded in this case with criminal proceedings,
is misleading.
In criminal proceedings it is indeed appropriate that the prosecutor
is properly authorised to enter into such agreements
as he or she is
dominis litis. Furthermore where a Court does not accept a
plea-agreement in terms of
section 105(A)
of the
Criminal Procedure
Act 51 of 1977
, the trial begins de novo into the allegations against
the accused. The plea-agreements are inherently agreements in which
the
accused accepts a responsibility for his actions and accepts that
he or she will be sanctioned for these and does so in order to
minimize such possible sanction not to escape it entirely.
[34].
The duty of the Third Respondent in such circumstances is to notify
the said practitioner of the date and time of the enquiry
and to
provide him with the charge sheet which would have been formulated by
the pro-forma complainant. It is thereafter the duty
of the Board to
appoint members of the Professional Conduct Committee who will hear
the matter. Accordingly nothing in the Regulations
empowers the
pro-forma complainant to enter into plea-agreements nor is there
anything in his appointment or mandate that grants
him any such
discretion. In addition the actions of the pro-forma complaint bind
him not the Board or any of his Committees.
[35].
It is the Respondents' case that before any enquiry can be held
Regulation 6
provides for the discussion to be held between the
parties. At this stage the issues in dispute are identified and
admissions are
dealt with, as are any issues relating to the
discovery of documents or expert evidence. The various steps of the
hearing are set
out in
Regulation 7
which include that the accused
practitioner is asked to plead; the hearing of evidence from both
parties and a finding being made
by the committee as to the guilt of
the accused practitioner. In this respect
Regulation 7(t)
of the
Regulations, as it applies at all relevant times, grants the
committee the power to find the accused not guilty even if
he has
pleaded guilty. The committee may therefore not accept the
applicant's plea of guilty. Once guilt is
established
further evidence is led with respect to the appropriate sentence to
be handed down.
[36].
Regulation 8
provides for an internal appeal proceedings. It is
available to both the accused and the pro-forma complaint. A further
committee
of the Board is tasked with deciding the appeal.
[37].
1 now turn to the point in limine raised by the Respondents against
the application. The Respondents have raised a point in
limine for
non-joinder of the complainant on the ground that the complainant has
a direct and substantial interest in the result
of any disciplinary
proceedings against the applicant and specifically in the relief
sought in his application. It is the complainant's
father who has
died and it is the complainant's father's death which is essentially
an issue. The complainant has conveyed his
dismay at the result of
the disciplinary proceedings against the applicant. The respondents
state that it appears from his letter
that the complainant understood
the plea of the applicant to mean that only sentencing would be the
issue. The complainant formally
sought an appeal of the Committee's
decision. He has indicated his desire to pursue other avenues of
redress he might have against
the applicant or other relevant parties
such as the Respondents.
[39].
On 21 May 2008 the Second Respondent was informed by the
complainant's attorneys of his civil claim against the applicant.
The
complainant had requested information pertaining to the enquiry held
into the allegations made against the applicant. According
to the
respondents, the issues that had arisen between the complainant and
the respondents involved substantially the same issues
of fact and
law as those raised in this application. Furthermore the applicant
relies on an agreement between himself and the pro-forma
complainant
who represents the complainant in the disciplinary proceedings
against him. Accordingly, so contend the Respondents,
the
complainant's joinder is therefore warranted and this application is
defective for want of such joiner.
[40].
The dispute in this case turns on the validity of the plea agreement
that the applicant, then represented by his counsel and
attorney, and
the pro forma complainant, then one Nkuna, concluded on 4 May 2007.
That the applicant and the pro-forma complainant
concluded a plea
agreement on 4 May 2007 is not in dispute. What is in dispute is
firstly, whether or not the pro-forma complainant
had the necessary
authority in terms of the Act or Regulations to conclude the plea
agreement in dispute. Should the court find
that the pro-forma
complainant did not, in terms of either the Act or the regulations,
have any authority to conclude this agreement,
it must still
investigate, on the basis of all the evidence before it, whether or
not the second respondent had not tacitly or
by conduct authorised
the pro-forma complainant to conclude the plea agreement or whether
or not Regulation 6 of the Regulations
does grant the pro forma
complainant implied authority to enter into plea agreements.
[41]
The applicant contends that the said plea agreement is valid and that
the respondents are bound by it. The thrust of the applicant's
case
is that in the past the pro forma complainant concluded at least nine
such plea agreements and that the respondents never
called into
question the pro forma complainant's authority to conclude them.
[42].
By referring the court to the nine matters in which the pro-forma
complainant had concluded piea agreements whose validity
the
respondents never challenged and by unwaveringly holding onto the
view that the plea agreement that is in dispute in this matter
is
valid for all intents and purposes and that the respondents are bound
by it, I understand the applicant's case to be, in principle,
that
the respondents should not be allowed to aver that, at the time the
pro-forma complainant concluded the disputed plea agreement,
he did
not have the necessary authority.
[43].
Although this was not expressly stated in the papers, the applicant
could only have relied on estoppel. It is the applicant's
case, as I
understood it, that the respondents should be estopped from disputing
the authority of the pro forma complainant to
conclude the disputed
plea agreement. The applicant can only succeed to prevent the
respondent from averring lack of authority
on the part of the
pro-forma complainant if he satisfies the court:
(a)
that the respondents had previously by words or conduct held out the
existence
of a certain state of facts; (b) that the respondents had led him or
his legal representative, to believe in the existence
of a certain
state of fact;
(c)
that he, the applicant, has by reason of such belief acted to his
prejudice.
(d)
that the person who made the representation could bind the
respondents by
means
of the representation.
[44].
In Arris Enterprises (Finance) Pty Ltd v Protea Assurance Co Ltd
1981(3) SA 274 A at page 291, Corbett CJ stated the following;
"The
essence of the doctrine of estoppel by representation is that a
person is precluded, i.e. estopped from denying the truth
of the
representation previously made by him by another if the latter,
believing in the truth of the representation , acted thereon
to his
prejudice (see Joubert The Law of South Africa vol 9 para 367 and
authorities there cited). The representation may be made
by in words
i.e. expressly, or it may be made by conduct, including silence,
inaction, i.e. tacitly (ibid para 371); and in general
it must relate
to an existing fact, (ibid para 372)"
[45].
At the pain of repetition, the respondents' position with regard to
the said plea bargain is clear. According to the respondent,
the plea
bargain on which the applicant relies was invalid and that its
invalidity arises from the fact that neither the Act nor
the
Regulations authorised the pro forma complainant to conclude such an
agreement. It is correct, and I agree with the respondents'
argument,
that the pro forma complainant was not expressly authorised by either
the Act or Regulations to conclude any plea bargain.
On the face of
it, it would appear that it was irregular and unlawful for the pro
forma complainant to conclude the plea agreement
with the applicant.
This however does not necessarily imply that he had no implied
authority to conclude the relevant plea agreement.
[46].
But then if it is the respondents' case that the pro forma
complainant did not have the necessary authority whatsoever to
conclude the relevant plea agreement, the crucial question is why did
the second respondent not react against such previous plea
bargains
the same as it did against the plea bargain concluded on 4 May 2007,
by recharging, as it purports to do with the applicant,
all the
accused practitioners involved in those other matters? The second
respondent admits that plea agreements have been entered
into by the
pro forma complainants and the accused registered practitioners. The
second respondent's admission is phrased as follows:
"50.1
I admit that plea arguments have, to my knowledge been entered into
between pro forma complainants and the accused practitioners".
[47].
After admitting that plea agreements have in the past been entered
into between the pro forma complainant and accused registered
practitioners, the second respondent brazenly denies that those nine
plea agreements were any more valid than the plea agreement
at the
heart of the current matter. It is important, in my view, to observe
that although the Second Respondent does not dispute
the pro-forma
complainant's authority to conclude the plea agreements in those
other matters it fails to indicate the basis on
which it states that
they were no more valid than the plea agreement in dispute.
[48].
It is, in my view, no excuse for the second respondent to state that
it had no knowledge of the inquiries in which the applicant's
attorney was involved in any plea agreements that may have been
completed by the applicant's attorney or, for that matter, any
other
attorneys. That is not the issue. After all the applicant had
furnished, in the said annexure "M", the respondents
with a
list of nine matters in which his very same attorneys had concluded
plea agreements with the pro forma complainant.
[49].
The purpose of furnishing the respondents with such a list was
clearly to enable them to easily identify the relevant files;
secondly to refer to and study those files for the purpose of
enabling the respondents to establish the reasons for the conclusion
of such plea bargain agreements; to establish the circumstances under
which such plea agreements were entered into those matters
and apply
their mind to the facts of the current case to establish whether or
not the circumstances that prevailed at the conclusion
of the plea
agreements in those nine matters were not present in the current
matter.
[50].
The respondents state that in its appointment of pro forma
complainant to represent the complainants the complaints, it does
not
transfer to him its prerogatives to decide whether or not conclude
the pre agreements; that nothing empowers the pro forma
complainant
to enter into plea agreements and that only the Board could withdraw
the charges. This is in direct contrast to the
plea agreements that
were concluded in all those nine matters and to which the second
respondent did not object.
[51].
The respondents tacitly concede that a plea agreement may, under
certain circumstances, be invalid and not binding on the
pro forma
complainant, especially if the disciplinary committee finds the
accused practitioner not guilty and does not sanction
him at all
after such accused practitioner has pleaded guilty. This contention
does not, in my view hold any water for, at the
conclusion of the
disputed plea agreement, the relevant pro forma complainant was aware
of what section 7(t) of the Act provided.
It states that;
"the
professional conduct committee may make a finding of not guilty even
if the accused has pleaded guilty."
Accordingly,
acting in terms of the powers vested in it by the provisions of
section 7(t) of the Act, the Professional Conduct Committee
found the
applicant not guilty of the charge he had pleaded guilty to and
acquitted him. The said acquittal was consequently the
natural
consequence of section 7(t). The effect of the respondents'
contention as set out above would be to emasculate the purpose
of the
said section.
[52].
It is, in my view, irrelevant whether or not the disciplinary
proceedings in terms of the Act may be likened to a criminal
case in
which the public prosecutor is a dominis litis. What is of paramount
importance with regards to this matter, in my view,
is the admission
by the second respondent that plea agreements have in the past been
concluded between the pro forma complainant
and the registered
practitioners and that such plea agreements remained for all intents
and purposes legally binding on the second
respondent. What of is of
utmost importance furthermore is the admission by the second
respondent that such plea agreements are
valid and considered to be
binding once completed between the pro forma complainant and the
registered accused practitioners despite
the fact that their
conclusion is not, according to the Respondents, sanctioned either by
the Act or the Regulation. The lasting
impression that the second
respondent has done by its conduct is that it has created a
convention that has become well established
and accepted precedent
that has now crystallised into an integral part of the process of
dealing with matters of this nature.
[53].
By its conduct, the second respondent has given the pro forma
complainant a revocable authorisation to conclude plea agreements.
It
has, over a period and in nine other matters, given the applicant to
believe that such an authorisation had been given to the
pro forma
complainant. As a consequence the applicant has, to his detriment,
concluded the plea agreement.
[54].
In the circumstances, the pro forma complainant's powers were
modified. There was, in my view, a duty on the respondent, as
a
custos morum, to act in respect of the nine matters in which the pro
forma complainant had concluded, with the applicant's attorneys,
plea
agreements. By their conduct the respondent had represented to the
applicant and his legal representative that authorisation
had been
granted to the pro forma complainant to conclude plea agreements. In
the result the respondent is estopped from averring
that the pro
forma complainant did not have the necessary authority to conclude
the plea agreement, or, that permission or authorisation
to conclude
plea agreements had not been given to the pro forma complainant. See
Garlick v Phillips 1949(1) S A 121 AD. Although
this authority was
more concerned with the law of landlord and tenant, it is the
following principle,
"In
the present case there was a very long continued failure by the
lessee both under the lease of 26th September, 7946, and
under
previous leases to pay his rent on due date and no objection was
taken thereto, consequently an application of the above
principle
revocable permission to respondent to pay his rent late or led
respondent to believe that such permission had been given
and in
consequence thereof respondent continued to pay his rent late, if the
first be the true legal position the tenant's obligation
to pay rent
in advance was temporarily modified or suspended by the permission to
pay late given by appellant. If the second be
the true legal position
then something in the nature of an estoppel arises which precludes
appellant form denying that he had given
such permission" that,
in my view, is of crucial importance. 1 see no reason why I should
not apply the above principle in
this particular case.
[55].
In this application, reference was made to a long list of matters in
which the pro forma complainant had concluded that the
valid pre
agreements with the applicants attorneys; the pro forma complainant
who should have known better never informed the applicant's
legal
representative on 4 May 2007 when they concluded a plea agreement
which is in dispute the he lacked the necessary authority
to conclude
plea agreements; the failure of the second respondent to challenge,
on the basis of lack of authority, the pro forma
complainant's plea
agreements concluded in other matters; the fact that the respondents
only seemed to recharge the applicant after
a complaint by a family
member of the deceased in this matter, all support the applicant's
contention that the respondents' attempts
to recharge him constitute
an unlawful and procedurally unfair administrative action.
[56].
It is clear from the letter dated 8 May 2008 by the second
respondent's legal adviser that the decision to recharge the
applicant
in this matter was only taken after a complaint had been
received, as I indicated earlier, from one Mr Naushad Elias, the
deceased's
family member. The said letter, and I wish to quote
copiously from it, reads inter alia as follows:
"COMPLAINT:
DR L VAMBE
We
refer to previous correspondence in this regard and wish to respond
as follows to your complaint.
Prior
to the hearing, a meeting was held between the pro forma complainant
and the defence Counsel. Such meetings are required by
our
regulations with a purpose of insuring all issues that are in dispute
are dealt with thus enable the actual hearing to run
smooth.
Upon
considering all documentation from both parties including the expert
summaries, an agreement was reached in terms of which
Dr Vambe was to
plead guilty to the charge that he delayed referring the deceased to
a thoracic surgeon resulting in the consequences
that followed. A
detailed plea explanation was complied and played before the
Committee.
We
may add that in the event an accused pleads guilty to a charge and
his Counsel enters a written plea into the record, no oral
evidence
is led and the requirement to call witnesses falls away. This is the
reason that why you were informed that you were no
longer required to
testify at the hearing.
Having
considered the Plea, the Committees was not entirely satisfied with
the Plea and returned a finding of not guilty.
We
understand your disappointment of the outcome of the matter but wish
to point out that the manner in which the case was concluded
is
entirely within the provisions of the relevant Regulations.
We
also noted that some of the charges were, as part of the Plea
bargain, not pursued. Due to the fact Dr Vambe did not plead to
those
charges that the outcome on the main charge was not favourable one,
we have instructed the pro forma complained to reinstate
those
charges. You will be notified once a notice and Charge sheet is
finaised.
We
trust that you will find this in order
Yours
faithfully
MR
CM NKUNA LEGAL ADVISER"
[57].
It is only apposite at this stage to consider the position of the
Second Respondent
vis-a-vis
the pro forma complainant. The powers of the second Respondent are
circumscribed in Regulations 3 of the Regulations.
According to the
said regulation, it is the duty of the Committee to decide whether or
not any grounds for holding an inquiry exist,
if the committee should
decide that an inquiry should be held, it directs the Third
Respondent to arrange for the holding of the
inquiry. The Committee
does not formulate the charge sheet nor does it give any prescription
as to how a charge sheet against a
registered practitioner should be
framed. In Tucker & Another v. S A Medical and Dental Council and
Others 1980(2) SA 207 at
page 212 the court held the following;
"
The Committee of the preliminary inquiry, as its name indicates, is
there purely to
determine
whether a prima facie case exists against the practitioner
concerned........ It is
not
concerned to establish whether the charge sheet will actually be
proved eventually. It is concerned only with the question whether
there ought to be an inquiry at all". See also Veriava and
Others v. President, S A Medical and Dental Council and Others
1985
(2) SA 293(T)
at page 309, where the court emphasised that the
Committee has not been bestowed with any powers in terms of the
Regulations to
formulate a charge. The court stated as follows:
"The
inquiry committee merely does the preliminary investigation, the type
of work for which it was appointed. If the preliminary
investigation
shows that evidence furnished in support of the complaint discloses
prima facie evidence improper or disgraceful
conduct in respect of
the practitioner's profession, then there is a complaint to be
inquired into by the council or the disciplinary
committee............ If this reasoning is correct, which I believe
it to be, then the only function of the inquiry committee is
to
conduct a preliminary investigation to determine whether the evidence
furnished in support of the complaint discloses prima
facie evidence
of improper or disgraceful conduct in respect of the profession of
the practitioner". [58] As indicated earlier,
it is clear from
the provisions of Regulation 6 that the prerogative to formulate a
charge sheet has been bestowed on the pro forma
complainant. Apart
from formulating the charge sheet against the accused practitioner,
the pro firma complainant receives requests
for further particulars
and responds to such requests; see Reg. 5(2); he is in charge of the
formulation such further particulars;
he attends, with the accused
practitioner's legal representative, a pre-inquiry conference where
exceptions, objections or points
in limine to the charges are raised;
he discusses the pleas to the charge or charges; he furnishes to the
other party copies of
all the documents, reports, notes and X-ray and
other exhibits to the party who intends using them at the inquiry; in
turn he himself
peruses such documents; more importantly he makes
admissions with regards to the allegations of the charge or exhibits;
he consults
with expert witnesses; in terms of Regulation 7 he
prosecutes at the inquiry and he is defined as a person who has been
approved
by the Board to represent the complainant and to present the
complaint to the Professional Conduct Committee and to consult
witnesses,
where necessary.
[59].
There are, in my view, further areas of evidence that indicate beyond
any shadow of doubt that the pro-forma complainant is
bestowed with
the powers to formulate a charge against the accused practitioner.
Regulation 4 (a) state as follows: "On receipt
of the directive
referred to in Regulation 3 (4), the registrar shall issue a notice,
which is attached hereto and essentially
in the form of annexure A
and addressed to the accused, stating where and when the inquiry will
be held and enclosing the charge
sheet as formulated by the pro forma
complainant"
That
the formulation of the charge sheet is the prerogative of the pro
forma complainant it is also clear from annexure "A"
to the
Regulations, which is a Notice To appear Before a Professional
Conduct Committee of The Professional Board. It states, among
others,
that;
"..........
is hereby given notice that an inquiry into your professional conduct
will be held by the Professional Board for,.......
at............
(place)............... on............. (date and time) the charge
sheet as formulated by the pro forma complainant
is enclosed".
[60].
Relying on the above authorities I find that the respondents'
contention that a
decision
of the Board or of any of the committees to withdraw the charges is
required cannot be true. Equally I find no merit in
the respondents'
contention that only the Board can withdraw the charges. It is as
clear as crystal that the Board does not have
such powers it purports
to have and that any attempt by it to dictate to the pro forma
complainant how he should formulate the
charges or to withdraw any
allegation of professional misconduct against a practitioner would
amount to the usurpation of the pro
forma complainant's powers by the
Board.
[61].
The pro forma complainant, as a functionary of the Board, is bestowed
with the powers not only to decide on the formulation
of the charges
against the practitioner but also to decide whether or not to proceed
with any allegation of unprofessional conduct.
Accordingly I find
that the pro forma complainant was authorised not only to conclude
the plea bargain in dispute but also to withdraw
allegations of
unprofessional conduct against the applicant.
[62].
The respondent's contention that the application is defective for
non-joinder of the complainant does not have merit, in my
view.
Firstly the Regulations of the respondents do not accommodate the
complainant. The complainant is not part of the process
of making a
decision on whether or not a particular registered practitioner
should be hauled before a professional Conduct Committee
or is he a
pro forma complainant. Respondents have already admitted that the
complainant's interests are taken care of by the pro
forma
complainant. The pro forma complainant represents the complainant and
presents the complainant's case to the committee. Apart
from
complaining to the second respondent about the conduct of a
particular practitioner, the Regulations do not require the
complainant
to do anything. Accordingly there is no merit in the
contention that the complainant should have been joined.
I
am satisfied that the applicant has made a good case an accordingly I
make the following order:
1.
The decision of the Third Respondent to prosecute the applicant on
the charges contained in paragraphs 1 and 3 of the second
charge
sheet dated 21 November 2006 is reviewed and hereby set aside.
2.The
First Second and Third Respondents are hereby interdicted from
proceeding with the prosecution of the applicant on the charges
contained in paragraphs 1 and 3 of the second charge sheet dated 21
November 2006 and with any prosecution on any other charges
that
might arise out of the same facts.
3.
The First, Second and Third Respondents are jointly and severally
ordered to pay the costs of this application, the one paying
and the
others to be absolved.
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
Appearances:
Applicant's
Attorneys: Macrobert Inc.
Applicant's
Counsel: Adv. Farrell
Respondent's
Attorneys: Gildenhuys Lessing Malatji Inc.
Respondent's
Counsel: Adv. NJ Jele
Date
Heard:7 September 2010
Date of Judgment:2011 April 19