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[2019] ZAECPEHC 18
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Munir v Chairperson of the Medical and Dental Professions Board and Others (1918/2018) [2019] ZAECPEHC 18 (2 April 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case No.:
1918/2018
Date
Heard: 28 March 2019
Date
Delivered: 2 April 2019
In
the matter between:
DR
HAMID MUNIR
Applicant
and
THE
CHAIRPERSON OF THE MEDICAL AND
DENTAL
PROFESSIONS BOARD
First Respondent
THE
HEALTH PROFESSIONS COUNCIL
OF
SOUTH
AFRICA
Second Respondent
MEMBER
OF THE EXECUTIVE COUNCIL FOR
HEALTH
AND SOCIAL DEVELOPMENT OF THE
EASTERN
CAPE
Third Respondent
JUDGMENT
BEYLEVELD
AJ:
[1]
This is a review in which the Applicant seeks an order reviewing and
setting
aside the decision of the First Respondent acting under the
auspices of the Second Respondent which decision was communicated to
the Applicant in a letter dated 8 August 2017.
[2]
The essence
of such decision was that the First Respondent (“
the
Board
”)
accepted a resolution of the Education and Registration Committee of
the Second Respondent (“
HPCSA
”)
that the Applicant be placed under supervised practice for a period
of 2 years and that the Applicant provide quarterly
progress reports
and be directed to cease working in private practice until completion
of the 2 years supervisory period.
[1]
[3]
The Applicant in additional relief claimed, seeks an order directing
HPCSA
to issue the Applicant with an unqualified certificate of
registration.
[4]
Besides a
customary claim for costs
[2]
the
Applicant, in terms of the provisions of Section 7(1) read with
Section 9 of the Promotion of Administrative Justice Act
[3]
(“
PAJA
”)
seeks an indulgence in the form of condonation for the late filing of
the application and for an extension of the time
period of 180 days
as stipulated in PAJA.
[4]
[5]
The salient events leading up to the present review application are
set
out hereafter.
[6]
The Applicant, who is a medical practitioner and who holds the
position
as Master of Medicine (“
MMED
”) in
Cardiothoracic Surgery is registered as such by the HPCSA.
[7]
In 2004 the Applicant was appointed as a Senior Specialist in the
Department
of Cardiothoracic Surgery at the Port Elizabeth Hospital
Complex where he is still employed. The Applicant also
practiced
in private practice as a Thoracic Surgeon on an after-hour
basis.
[8]
During 2006
the Applicant was subjected to an internal departmental peer
assessment and upon recommendation attended a one-year
fellowship
program
[5]
at the National Heart
Institute in Kuala Lumpur.
[6]
[9]
Upon his return to the Port Elizabeth Hospital Complex he continued
to
function in his position as a Senior Specialist.
[10]
During
December 2012 the Applicant received a written communication from the
Legal Department of HPCSA
[7]
.
[11]
This written communication informs the Applicant,
inter alia
,
as follows:
(i)
That a
complaint had been received against him and that such complaint would
be placed before the committee of preliminary inquiry
for
consideration
[8]
.
(ii)
That the
matter would be dealt with in terms of the Regulations Relating to
the Conduct of Inquiries into alleged Unprofessional
Conduct under
the Health Professions Act
[9]
.
(iii)
That the
Applicant was called upon to furnish an explanation to the complaint
alternatively he could exercise his right to remain
silent.
[10]
[12]
The
Applicant elected to exercise his right to remain silent.
[11]
[13]
After receipt of the complaint, the hospital management directed that
the Applicant cease
performing open heart surgery as a principal
surgeon, but he continued to perform thoracic surgeries.
[14]
More than a
year after receipt of the complaint, and in January 2014
[12]
the Applicant was called upon to attend a consultation with a
committee of HPCSA in Durban on the 5
th
June 2014.
[13]
[15]
Shortly
thereafter Applicant received a further communication from HPCSA on
29 April 2014 wherein he was informed that it had been
resolved that
the Sub-Committee for Post-Graduate and Education and Training
(Medical)
[14]
intended to
assess the Applicant’s clinical competency and that this test
would be conducted on 6 June 2014 at his place
of employment.
[16]
The Applicant retorted that he would be unable to attend the
assessment as it was one day
following the consultation with the
Third Medical Committee referred to above and the Applicant, through
is attorneys, once again
requested details of the basis, under the
particular circumstances, the Clinical Competency Assessment was
required.
[17]
Noteworthy, no response was forthcoming from the relevant committee
of the HPCSA and the
written communication by Applicant’s
attorney was followed by a further communication on 19 May 2014
recording that no response
had been received.
[18]
After the
Applicant had attended the meeting with the Third Medical Committee
he was informed, through his attorneys
[15]
,
that “
the
Preliminary Committee of Inquiry of the Medical and Dental Board
resolved
”
to refer Applicant’s matter to the PTEM in order for his
clinical competency to be assessed. He was further
informed
that the planned Clinical Competency would be conducted on 23 July at
his place of employment and he was informed of the
names and identity
of the two specialists in Cardiothoracic Surgery who would undertake
the assessment.
[19]
The
competency assessment referred to above resulted in a report which
was prepared by the specialists, such report being prepared
on the
basis of a personal interview and not based on the observance by the
specialists of the Applicant’s surgical skills.
[16]
[20]
Such report is dated 1 August 2014.
[21]
The
contents of the report by the specialists was not conveyed to the
Applicant at the relevant time which report ended off with
the
following recommendation: “
Finally
my recommendation would be to appoint a surgeon to undertake a series
of operations together with each of these surgeons
[17]
and then make a final assessment on their clinical competence
”.
[22]
On 25
November the HPCSA informed the Applicant
[18]
that the complaint was reconsidered by the Third Medical Committee of
Preliminary Inquiry on 20 and 21 November 2014 and that the
committee
resolved that the matter be “
closed
”
and that the recommendations of the PTEM be accepted.
[23]
Thereafter, on 10 December, Applicant was advised that the PTEM had
met in September 2014
and that the sub-committee noted that:
(i)
The peer
review assessment of the Applicant was conducted on 24 July by
the specialists who had submitted their report.
[19]
(ii)
The specialists recommended that Applicant requires comprehensive
remedial
work and requires to work under supervision until a
substantive competency assessment has been undertaken.
(iii)
Initially the report was only signed by one specialist but
subsequently signed
by both.
(iv)
A verbal report from the Chairperson that Applicant’s matter
should not
be treated in isolation to that of the other surgeon who
was also subject to the interview assessment by the two specialists
referred
to.
[24]
The PTEM,
inter alia
, resolved that a surgeon should be
appointed to undertake a series of operations together with both the
Applicant and the other
doctor involved and then make a final
assessment on their clinical competency.
[25]
It was
further resolved that the hospital management at the Port Elizabeth
Provincial Hospital be requested to lift the suspension
of the
Applicant
[20]
and that the
Applicant be allowed to conduct surgical procedures under supervision
and keep a logbook for six months. The
supervisory surgeon was
to write a report and recommendations to be submitted to the
HPCSA.
[21]
[26]
The PTEM sub-committee would then make a final ruling based on the
report of the final
assessment relating to clinical competency of the
Applicant.
[27]
During August 2015 the Applicant temporarily relocated to
Johannesburg to complete six
months supervised service and, on his
return in February 2016 he resumed his position at the Port Elizabeth
Hospital Complex as
Senior Specialist and heard nothing further and
received no feedbacks or any other communication for a period over of
a year and
a half.
[28]
One of the specialists who had assessed the Applicant during this
aforesaid six-month period,
Dr Patel, prepared a report which is
dated 19 February 2016. His report is complimentary and he
concludes with the recommendation
that the Applicant be allowed to
operate independently without any supervision.
[29]
A
report
[22]
was also prepared
by Professor Chauke who recommends that Applicant needs to operate
under supervision for six months to a year
when undertaking major
cardiac operations but that he is able to operate unaided in surgery
related to major thoracic operations
as well as minor cardiac and
thoracic operations.
[30]
A third report was prepared by a Professor Du Plessis which report,
inexplicably, even
at this stage, has not been made available to the
Applicant.
[31]
All three
reports are alluded to in a written communication from the Acting
Senior Manger Medical Services of the Department of
Health Eastern
Cape
[23]
in a written
communication addressed to the Board on 26 October 2016.
[32]
The communication by Dr Mbulawa-Hans as well as the reports of the
three assessors briefly
summarised in such written communication were
not at the relevant time made available to the Applicant for his
comment or response.
[33]
Dr Mbulawa-Hans summarises the opinions of the three assessors as
follows:
“
(1)
One assessors (sic) has assessed Dr Munir as excellent.
(2)
The other two assessors are not comfortable with Dr Munir (sic)
competency as
a Cardiothoracic Surgeon
.”
[34]
I already
indicated that two of the reports, namely that of Dr Patel and
Professor Chauke, differ substantially.
[24]
[35]
Professor Du Plessis’ views are summarised as follows:
“
Knowledge
– continuous reading and active participation in discussion
forums is essential to ensure that decision making is
good.
Interaction
with patients and colleagues was good.
Technical
skills are adequate for most of the common procedures in
cardiothoracic surgery.
His
conclusion is:
Dr
Munir is adequate to function as a Specialist in Cardiothoracic
Surgery.
He
should not attempt to be an expert in all the different
sub-categories in the speciality, but rather strengthen his expertise
in dealing with the more general and common pathologies encountered
.”
[36]
Presumably, Dr Mbulawa-Hans in summarising the opinions, categorized
Professor Du Plessis’
assessment on the same level as that of
Professor Chauke.
[37]
It is extremely difficult to appreciate the essential import of the
views expressed by
Professor Du Plessis as his report has not been
made available. At best, and relying on the accuracy of the
short summary
of his assessment, his views on Applicant’s
competency is at best ambivalent.
[38]
Thereafter
the PTEM considered the assessors reports and resolved that the
matter be referred to the Education and Registration
Committee to
recommend that the Applicant be placed under supervision practice for
two years.
[25]
[39]
The
Education and Registration Committee considered the assessors’
reports and the recommendation of the PTEM
[26]
and resolved that the Applicant be placed in supervised practice for
a period of two years during which period he should submit
quarterly
reports and that he should cease to work in private practice until he
has completed his supervision period.
[40]
Pursuant to
the aforegoing, the Board, resolved at its meeting on 9 June
2017, to approve the resolution of the Education and
Registration
Committee.
[27]
[41]
On 8 August 2017 the Applicant received the written communication
dated 8 August 2017 which
he seeks to have set aside in these
proceedings.
[42]
He is informed that a decision had been taken by the Education and
Registration Committee
which was endorsed by the Board, that he:
(i)
Be placed under supervised practice for two years.
(ii)
Be required to provide quarterly progress reports.
(iii)
Cease working in private practice until he has completed the two-year
period
of supervision.
[43]
Thereafter
on 5 September 2017
[28]
the
Applicant was issued with a qualified Certificate of Registration for
the category Supervised Practice Specialist in Cardiothoracic
Surgery
and, on 6 September he was placed on special leave by his
employer.
[29]
[44]
The Applicant seeks to impugn the decision of 8 August essentially on
the basis that it
is procedurally flawed and in contravention of the
relevant legislative framework. It is contended that he has not
been subjected
to fair and just administrative action.
[45]
The essence
of the Applicant’s contentions are that on a broad analysis of
the provisions of the Act together with the Regulations
relating to
inquiries the manner in which he was dealt with, resulted in
non-compliance by the Respondents with the procedural
requirements
laid down in the Regulation resulting in the process being flawed by
a list of irregularities.
[30]
[46]
On the
other hand, the Applicant contends that having regard to the powers
of the Board
[31]
and having
regard to the objects of the Board as set out in Section 15A of the
Act, the Board is possessed of the power to do all
such things as is
deemed necessary to achieve the objects of the Act.
[47]
Essentially what the Respondents contend is that inquiries which do
not relate to discipline
and unprofessional conduct are not covered
by the Regulations and accordingly the HPCSA has inherent powers to
deal therewith outside
the provisions of the Regulation.
[48]
In this regard the Respondents argue that the Board has a
discretion as to the manner
in which it should deal with complaints
or allegations relating to the health profession.
[49]
It seems to me that the Respondents’ argument is based on the
proposition that compliance
with the Regulation insofar as set down
procedures for inquiries are concerned, are not apposite under
circumstances where poor
performance and/or lack of competence are to
be evaluated and dealt with.
[50]
It is not in dispute that the procedures set out in the Regulations
were not followed in
the present instance.
[51]
Although it
is conceded by the Respondent that the commencement of the
proceedings
[32]
commenced with
a complaint and a communication to the Applicant in which his rights
in terms of the Regulation were pointed out
to him, this, during the
course of time, changed into a process of assessing the Applicant’s
competency outside the provisions
of the Regulations, such powers
being exercised in terms of the broader principles enunciated in the
Act.
[52]
In this regard the Respondent contends for instance that annexure
“HM14”, the
letter of 10 December 2014, wherein
Applicant’s attorneys are advised of the resolution by the
PTEM, unequivocally indicates
that a different process is being
embarked upon. This process, as I understand the Respondents’
argument, is separate
and distinct from any process contemplated in
terms of the Regulations and separate and distinct from the process
of performance
assessment contemplated for instance in Regulation
9(21) which follows upon a finding by a Professional Conduct
Committee.
[53]
Furthermore, and so the argument is advanced, the assessment of poor
performance is not
an assessment in terms of Regulation 9(23) which
sanctions the committee imposing practice restrictions in respect of
findings
of poor performance.
[54]
In short,
the Respondents contend that the process that was followed is not a
process whereby a medical practitioner, upon a finding
by the
committee of poor performance, is entitled to “
address
the committee on the appropriateness of the full or partial referral
of the matter to a performance assessment committee
to inquire into
the performance of
”
a medical practitioner and “
make
a determination on the appropriate management thereof
”.
[33]
[55]
As indicated, the Respondent relies on the provisions of Sections 15A
and 15B read with
the provisions of Section 49 for advancing the
proposition that the Regulations are not applicable in the present
instance as the
Board had decided in its discretion that the conduct
was not unprofessional conduct and therefore not requiring the strict
procedures
laid down in the Regulations.
[56]
There can
be no doubt that the Respondent is correct in asserting that
professional bodies such as the Respondents are better equipped
than
a court to decide whether ethical and professional standards have
been breached.
[34]
[57]
In my view, however, the present instance is not a situation where I
am called upon to
substitute my own opinion for the opinion and
conclusion of HPCSA, the Board or any of its committees.
[58]
The
question is rather whether or not the Applicant’s right to a
fair hearing and treatment has been infringed and whether
or not he
has been prejudiced as a result.
[35]
[59]
The Respondents’ argument is based on the contention that in
respect of the alternative
process undertaken, the Respondents have
“
the implied power to do so by virtue of the express powers
conferred upon them by the provisions of Section 15B of the Act
”.
[60]
The
interpretation of documents, including statutory provisions are
well-established.
[36]
[61]
One cannot, in the context of the present matter, ignore the fact
that the entire process
commenced by virtue of a complaint.
Section 3(n) of the Act provide that the objects and functions of a
council are to ensure
the investigation of complaints concerning
persons registered in terms of the Act. This power is designed
to serve as a protection
of the public interest at large.
[62]
Regulation
4 relates to preliminary inquiries which commences with a fact
finding sifting process.
[37]
[63]
Section 15(5) provides for Regulations relating to the constitution,
functions and functioning
of a professional board.
[64]
Section 15(f)(A) relates to Regulations in respect of professional
conduct committees.
[65]
The objects of professional boards as set out in Section 15A are
generalised and broad
whilst the powers of the Board as recorded in
Section 15B are similarly broad and all encompassing.
Section 15B(1)(a)
however, provides that in “…
circumstances as may be prescribed, or where otherwise authorised
by this Act, remove any name from a register or, upon payment of
the
prescribed fee, restore thereto, or suspend a registered person from
practising his or her profession
pending the institution of
a formal inquiry in terms of Section 41
”.
[66]
The aforegoing read with Chapter IV of the Act, in particular
Sections 41 and Section
41A indicate the nature of inquiries by
a professional board into the unprofessional conduct of a medical
practitioner.
[67]
The argument that as we are in the present instance not dealing with
unprofessional conduct,
these provisions, as well as the Regulations,
are not applicable, cannot be sustained.
[68]
Just as
much as the Respondents contend that the Respondent acted in terms of
the general implied powers and objects of the Act
in dealing with
this matter, just as much can one in contradistinction thereto, argue
that the exercise of power to investigate
professional competency and
to effectively impose a sanction as a result of a finding, should be
in accordance with procedures,
which afford the ultimate recipient of
the sanction, a fair hearing
[38]
.
This must surely be implied from the general powers which must be
understood and read in conjunction with Constitutional
imperatives.
[69]
In my view, and in any event, the Applicant has, set out a sufficient
factual basis in
the founding affidavit to lay the foundation for a
contention that procedurally fair administrative action did not occur
in the
present instance, more particularly as the Applicant was not
afforded an opportunity to make any representation regarding the
assessments
which only came to his knowledge later and to make any
representations regarding the ultimate sanction that was imposed on
him
on 8 August 2017.
[70]
The Respondents’ powers would not be rendered nugatory as
contended for by the Respondents
and not disentitle them to
effectively discharge their duties towards the public should the
Applicant have been afforded a fair
hearing.
[71]
In this
regard it is contended by the Respondent that issues of a fair
hearing outside the strict parameters of the Regulation was
only
raised in the replying affidavit and accordingly should be
ignored.
[39]
[72]
The rule
relating to new matter in the replying affidavit is based on a trite
principle but the rule is not absolute and the present
tendency is to
permit greater flexibility with regard to admissions of new matter,
particularly in the absence of prejudice, and
for the application of
the rule with a fair measure of common sense.
[40]
[73]
Similarly,
in
Lagoon
Beach Hotel (Pty) Ltd v Lechane NO and Others
[41]
it was stated that in applying the rule “
practical
common sense must be used
”.
[74]
In any
event, I am satisfied that a factual basis has been made out in the
founding affidavit read with the averments in reply.
[42]
In this regard, the Applicant contends that the performance
assessment was improper, irregular, unlawful and invalid
and
in contravention with the legislative framework. The Applicant
expressly and specifically relies on the common law principle
of
audi
alteram partem
[43]
and submits that in terms of Paragraph 6 of PAJA he is entitled
to an order for judicial review.
[75]
In the circumstances, I am of the view that the decision as
communicated to the Applicant
on 8 August 2017 is unlawful as it
failed to have regard to the Applicant’s constitutional and
common law rights to a fair
hearing.
[76]
As to the remedy available to the Applicant, I will revert to that
issue hereunder.
[77]
The Respondents contend that the application is in any event doomed
to failure as the decision
was not challenged within a period which
does not constitute an unreasonable delay and in event not later than
180 days after the
date that the Applicant was informed of the
decision.
[78]
The Respondents contend firstly that the decision of August 2017 is
rooted in the Board’s
decision of 10 December 2014 wherein it
was decided that the Applicant should be placed under supervision for
a period of six months
where after a final decision would be made
based on a final assessment.
[79]
Accordingly, and so it is argued, one should look, insofar as delay
is concerned, at the
decision of December 2014 as the commencement
date. I do not believe that there is any merit in this
suggestion.
[80]
The decision of 10 December 2014 was not a final decision and it is
recorded as such and,
in any event, the time period that lapsed in
between could only have given the Applicant the impression that
nothing further was
being done and that he was no longer subject to
competency evaluation.
[81]
Insofar as the decision of 8 August 2017 is concerned, it is correct
that the jurisdictional
threshold of 180 days has expired as the
application was launched on 24 May 2018. The 180 period as
provided in PAJA would
have expired in March 2018 with the result
that the application is some two months late.
[82]
The factors
to be taken into account in considering an application for an
extension of time in terms of Section 9 of PAJA are well-known.
[44]
[83]
I have considered all these factors including the nature of the
relief, the extent and
cause of the delay, the effect of the delay on
the administration of justice and the other litigant, the
reasonableness of the
delay, the importance of the issue and the
prospects of success.
[84]
I do not believe that the Applicant’s explanation for the delay
is unreasonable and
in particular, a portion of the delay justifiably
can be placed at the doors of the Respondents who failed to furnish
on request
relevant documentation to enable the Applicant to assess
his claim. As previously indicated, even at the stage of the
hearing
of this application, a vital document such as the assessment
report by Professional Du Plessis has not been made available.
[85]
For the
reasons advanced, I am also of the view that the Applicant has
prospects of success
[45]
and I
have also weighed up the question of any potential prejudice to the
Respondents as against the prejudice suffered by the
Applicant.
[86]
I am of the view that it cannot be said that the Respondents were
unduly prejudiced by
the relatively short delay of approximately two
months.
[87]
The Respondents also contend that the Applicant acquiesced in the
process by acquiescing
in the decision taken in December 2014 and
agreed to the process that ensued thereafter. This
argument loses sight
of the fact that the Applicant was not privy to
all the communications and exchanges between the various committees
and the HPCSA
and at no stage was the Applicant specifically informed
as to the nature and content of the investigation and under which
prescripts
it was being conducted.
[88]
To say, as the Respondents do, that the Applicant waived any
entitlement as it was apparent
from the communications to him, more
particularly with the commencement letter of December 2014, what the
process going forward
entailed, is without merit.
[89]
The onus rests on the Respondents who rely on waiver / acquiescence
to prove on a balance
of probabilities that the Applicant has waived
his rights to claim a reliance on fair administrative action.
[90]
A court, in
assessing the probabilities, must have regard to the factual
presumption that a party is not likely deemed to have waived
any
rights and that clear evidence of such a waiver is required.
[46]
[91]
If one has regard for instance to the request from Applicant’s
attorneys as to the
nature and content of proceedings, it cannot be
said that the Applicant with a full understanding of all his rights,
waived the
entitlement to rely thereon. This is particularly so
where one is dealing with a contended for waiver of a Constitutional
right.
[92]
I am therefore of the view that the 180-day time period should be
extended in terms of
Section 9 of PAJA.
[93]
This then brings me to the question of the suitable remedy.
[94]
In
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer, South African Social Security Agency, and
Others
[47]
Froneman J stated as follows:
[48]
“
Once
a ground of review under PAJA has been established there is no room
for shying away from it. Section 172(1)(a) of the
Constitution
requires the decision to be declared unlawful. The consequences
of the declaration of unlawfulness must then
be dealt with in a just
and equitable order under section 172(1)(b). Section 8 of PAJA gives
detailed legislative content to the
Constitution’s “just
and equitable” remedy
.
”
[95]
As was
stated by Plasket J in
Joubert
Galpin & Searle Inc. and Others v Road Accident Fund and
Others
[49]
“
Appropriate
relief is relief that effectively remedies the breach of the
right.
It
is relief that fits the injury: it must be ‘fair to those
affected by it yet vindicate effectively the right violated’
and be ‘just and equitable in the light of the facts, the
implicated constitutional principles, if any, and the controlling
law’
.”
[96]
Although a
court retains a discretion to refuse to award a remedy when
unlawfulness is found, the default position remains that
the
principle of legality should be upheld and vindicated.
[50]
[97]
Firstly, in the circumstances of this particular case, I am unable to
issue an order that
the Second Respondent issue the Applicant with an
unqualified certificate of registration.
[98]
Besides the fact that a setting aside of the decision of 8 August
2017 does not ineluctably
lead to the issue of an unqualified
certificate of registration, it would clearly not be in the public
interest for me to do so
where the competency of the Applicant to
perform all forms of cardiothoracic surgery is still an issue which
would have to be determined.
[99]
Formulated differently, the fact that the decision of 8 August 2017
is set aside does not
lead to a finding that it is a foregone
conclusion that the Applicant is entitled to an unqualified
certificate of registration.
[100]
This is
also not a case where I am enjoined to exercise my discretion to
determine whether exceptional circumstances exist to make
a
substitution order.
[51]
[101]
I believe the Applicant will be sufficiently vindicated should I
simply make an order that the decision
of 8 August 2017 be set aside.
[102]
If this is
done, the Respondents may initiate whatever lawful proceedings are
available to them to finalise and/or regularize the
Applicant’s
registration. It must also be borne in mind that if the
decision of August 2018 is set aside, and as argued
on behalf of the
Respondents, there still remains the decision of 10 December
2014.
[52]
[103]
Under the circumstances I am of the view that the Applicant is
entitled to substantial relief and is therefore
entitled to the costs
of this application.
[104]
The following orders are made:
(i)
The 180-day period referred to in Section 7 of PAJA is extended
to
the date upon which this application was served on the Respondents.
(ii)
The decision of the First Respondent acting under the auspices of the
Second Respondent contained in the written communication dated 8
August 2017 (annexure “
HM1
” to the founding
affidavit) is reviewed and set aside.
(iii)
It is declared that such decision is null and void and of no force
and effect.
(iv)
The First and Second Respondents are ordered to pay the Applicant’s
costs
of this application jointly and severally, the one paying the
other to be absolved.
A
BEYLEVELD
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Applicant:
Adv T Rossi instructed by BLC Attorneys
For
First and
Second
Respondents: Adv L Kutumela
instructed by Attorneys Gildenhuys Malatji Inc. c/o
Joubert Galpin &
Searle
For
Third Respondent: No Appearance
[1]
The
written communication details additional information which is to be
furnished by the Applicant.
[2]
In
this particular instance on the scale as between attorney and client
[3]
3
of 2000
[4]
In
terms of Section 7(1) of PAJA all proceedings for judicial review
must be instituted without unreasonable delay and not later
than 180
days after the events listed in Section 7(1)(a) and (b) of PAJA.
In terms of Section 9(1)(b) of PAJA the
period of 180 days may
be extended on application of an applicant in review proceedings.
[5]
For
the period July 2007 to July 2008
[6]
After
completing such program he received positive reviews from his peers
[7]
Such
letter is dated 18 December 2012
[8]
The
complaint is said to have been contained in a letter dated 26
November 2012 which was not enclosed in the communication to
the
Applicant
[9]
Health
Professions Act 56 of 1974 as amended (“
the
Act
”)
[10]
In
terms of Regulation 4(1)(b)(ii) of the Regulations relating to the
Conduct of Inquiries into alleged Unprofessional Conduct
published
under Government Notice R102 in Government Gazette 31859 of
6 February 2009.
A
proper response may consist of a written communication that the
particular medical practitioner invokes the right to remain
silent.
[11]
In
terms of Regulation 4(3)
[12]
And
after the Applicant had elected to remain silent
[13]
The
committee was the Third Medical Committee of Preliminary Inquiry
[14]
(“
PTEM
”)
[15]
Via
the HPCSA
[16]
Or
lack thereof.
[17]
The
report also related to another surgeon
[18]
Once
again through his attorneys
[19]
The
report which was not made available to the Applicant and which was
done on an interview basis only
[20]
Which
related to the conducting of surgical procedures
[21]
It was also resolved that the
registration
category of the Applicant be changed to the category of Specialist
Public Service and that the registration be revised
in six months
after the assessment report had been submitted. As previously
indicated the recommendations by the two specialists
which formed
the subject matter of the above resolutions, were not made available
to the Applicant who only received a copy of
the report in November
2017
[22]
Undated
[23]
Dr
B Mbulawa-Hans
[24]
The
one positive with the other partially negative
[25]
It
is apparent from the papers that Applicant was not afforded an
opportunity to make any representations regarding the resolution
by
PTEM
[26]
Once
again
sans
any representations by Applicant
[27]
Which
recommended the two year period and cessation of private practice
referred to above
[28]
With
effect from 9 June 2017
[29]
The
Department
[30]
For
instance the contention that the election by the Applicant to remain
silent obligated the preliminary inquiry to issue a directive
calling for a formal inquiry and that Applicant should have ben
furnished with a notice formulated in accordance with annexure
“A”
of the Regulation. Furthermore, it is contended that as no
formal inquiry was initiated, no lawful finding
was made or could
have been made and that it was not open to the Preliminary Committee
of Inquiry to refer the matter to the
PTEM for assessment of
Applicant’s clinic competency which in terms of the Regulation
is dealt with in Regulation 9(23)
which only occurs after a formal
inquiry. The Applicant was deprived of the benefit of the
process in terms of the Regulation
which includes a right to an
appeal.
[31]
As
contained in Section 15B of the Act
[32]
As
far back as 18 December 2012
[33]
Regulation
9(21)
[34]
Thuketana
v Health Professions Council of South Africa
of
SA
628 TPD more particularly at para 26.6 and
Roux
v Health Professions Council of SA and Another
[2012] 1 All SA 49 (SCA)
[35]
It
hardly behoves any further debate that the Applicant is indeed
prejudiced if one has regard to the restrictions on his ability
to
practice medicine
[36]
See
Natal
Joint Municipal Pension Fund v Ndumeni Municipality
2012 (4) SA 593
(SCA) at para 18. See also
Sakhiwo
Health Solutions v MEC of Health, Limpopo
908/2013
[2014] ZASCA 206
(28 November 2014);
Swart
v Cape Fabrix (Pty) Ltd
1979 (1) SA 195
(A);
North
East Finance (Pty) Ltd v Standard Bank of South Africa
2013
(5) SA 1
(SCA);
Bothma
-
Batho
Transport v S Bothma en Seun Transport
2014 (2) SA 494
(SCA);
X-Procure
Software (Pty) Ltd v Sutherland
(882/13) [2014] ZASA 196 (28 November 2014);
Mass
Stores (Pty) Ltd v Murray and Roberts Construction (Pty) Ltd and
Another
[2008] ZASCA 94
;
2008 (6) SA 654
(SCA);
KPMG
Chartered Accountants (SA) v Securefin Ltd and Another
2009 (4) SA 399
(SCA) and
Ekurhuleni
Municipality v Germiston Municipal Retirement Fund
2010 (2) SA 498
(SCA);
Shakawa
Hunting
&
Game
Lodge
(
Pty
)
Ltd
v Askari Adventures CC
(
44/2014
)
[
2015
]
ZASCA
62
(
17
April 2015
);
Novartis
v Maphil
(20229/2014)
[2015] ZASCA 111
(3 September 2015);
Educated
Risk Investments 165 (Pty) Ltd v Ekurhuleni Metropolitan
Municipality
[2016] 3 All SA 18
(SCA);
Annual
Survey of South African Law
2014
Interpretation
of Written Agreements - Basic Approach to Interpretation
,
at 502 to 505;
City
of Tshwane Metropolitan Municipality v Mitchell
[2016] 2 All SA 1
(SCA);
Padayachee
v Adhu Investments
(2016) 2 All SA 555
(GJ) and
G4S
Cash Solutions v Zandspruit
2017 (2) SA 24
(SCA)
;
South African Law Journal 2017 Volume 134 Part 3 at 514 and
Trinity
Asset Management (Pty) Ltd v Grindstone Investments
132
(Pty) Ltd
2018 (1) SA 94
(CC) at paras 52, 53, 54 and 55;
Centriq
Insurance Company Limited v Oosthuizen and Another
(237/2018)
[2019] ZASCA 11
(14 March 2019) at paras 17 and 18
[37]
See
for instance
Roux
v Health Professions of South Africa supra
at para 21
[38]
Similar
to the procedures as set out in the Regulation
[39]
In
this regard reliance is placed on
Director
of Hospital Services v Mistry
1979 (1) SA 626
(A) and
Tao
Ying Metal Industry (Pty) Ltd v Pooe NO and Others
2007
(5) SA 146
(SCA)
[40]
Nkengana
and Another v Schnetler and Another
[2011]
1 All SA 272
(SCA) at para 10
[41]
2016
(3) SA 143
(SCA) at para 16
[42]
It
remains unexplained why the Applicant elected not to file a
supplementary affidavit in terms of Rule 53(4) after the record
was filed.
[43]
Also
a constitutional imperative
[44]
City
of Cape Town v Aurocon South Africa (Pty) Ltd
2017
(4) SA 223
(CC) particularly at para 46
[45]
See
Squid
Packers (Pty) Ltd v Ollemans
[2003] 1 All SA 98
(SCA) at para 48
where
condonation was more readily granted where the prospects of success
are favourable
[46]
Feinstein
v Niggli
1981
(2) SA 684 (A)
[47]
2014
(1) SA 604 (CC)
[48]
At
para 25
[49]
2014
(4) SA 148
(ECP) at para 96
[50]
Joubert
Galpin & Searle supra at para 97 with reference to Bengwenyama
Minerals (Pty) Ltd and Others v Genorah Resources (Pty)
Ltd and
Others
2011
(4) SA 113 (CC)
[51]
Trenco
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd and Another
2015
(5) SA 245
(CC) at 255 and further
[52]
“
HM14
”.
That decision also constituted administrative action and remains
valid until set aside (which has not been done).
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA);
MEC
for Health, Eastern Cape, and Another v Kirland Investments (Pty)
Ltd t/a Eye and Laser Institute
2014
(3) SA 219
(SCA);
MEC
for Health, Eastern Cape, and Another v Kirland Investments (Pty)
Ltd t/a Eye and Laser Institute
2014 (3) SA 481
(CC)