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[2023] ZAGPPHC 399
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Member of the Executive Committee: Health - Limpopo Provincial Government v Health Professions Council of South Africa and Another (B2150/2023) [2023] ZAGPPHC 399 (2 June 2023)

IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case No. B2150/2023
(1)  REPORTABLE:
YES/
NO
(2)  OF INTEREST TO
OTHER JUDGES: YES/
NO
(3)  REVISED
DATE: 2 June 2023
In the matter
between:
MEMBER OF THE
EXECUTIVE COMMITTEE:

APPLICANT
HEALTH - LIMPOPO
PROVINCIAL GOVERNMENT
And
HEALTH PROFESSIONS
COUNCIL OF

FIRST RESPONDENT
SOUTH AFRICA
DR T PINKOANE
N.O

SECOND RESPONDENT
Coram:
Millar
J
Heard on:
30 May
2023
Delivered:

2 June 2023 - This judgment was
handed down electronically by
circulation to the parties' representatives by email, by being
uploaded to the CaseLines system of
the GD and by release to SAFLII.
The date and time for hand-down is deemed to be 10H00 on 2 June 2023.
Summary:
Application
for an interim interdict
pending review against the holding of an
inquiry into allegations of professional misconduct – attempt
to draw distinction
between applicants status as MEC for Health and
medical practitioner to obviate jurisdiction of professional body
contrived
and self-serving – all defences available to
applicant may be raised at the inquiry – application dismissed
with costs
JUDGMENT
MILLAR J
[1]
On 22 August 2022, the applicant, the MEC
for Health in the Limpopo Province, Dr. Phophi Ramathuba, also a
medical practitioner,
conducted a visit to the Bela Bela Hospital.
During the visit, a conversation took place between the applicant and
a patient in
the hospital. What was said during the conversation has
sparked controversy.
[2]
For purposes of the present application
neither repetition nor consideration of the contents of the
discussion are necessary. It
suffices to state that complaints of
unprofessional conduct were laid against the applicant in her
capacity as a medical practitioner
with the first respondent, the
statutory body responsible for the regulation of medical
practitioners. The complaints are refuted
by the applicant, both in
her capacity as the MEC for Health and as a medical practitioner.
[3]
When this application was brought, it was
brought in two parts – Part A and Part B. The substantive
relief sought in Part
A is an order  that “
The
professional misconduct inquiry instituted by the first respondent
against the applicant, set down for 25 to 27 July 2023 and/or
any
other further dates falling within a period prior to the
determination Of the application be interdicted, pending the
finalizing
of Part B of this application.”
and
in Part B that for an order “
declaring
the decision of the first respondent ("HPCSA") issued
against the applicant on 09 February 2023 as unconstitutional,

unlawful and invalid.”
And
“
declaring that the HPCSA lacks
jurisdiction over the conduct of the applicant as a member of the
executive arm of government ("the
executive") and whilst
performing her duties and responsibilities as such.”
[4]
The present application is for the orders
sought in Part A. The applicant seeks to interdict the holding of the
inquiry on 25 to
27 July 2023 pending a review which if successful
would absolve her of accountability to the HPCSA for anything done by
her in
her capacity as the MEC.
[5]
The
HPCSA was established in terms of section 2(1) of the Health
Professions Act.
[1]
Amongst its objects and functions is to:
“
to
serve and protect the public in matters involving the rendering of
health services by persons practicing a health profession”
[2]
and
“
to
exercise its powers and discharge its responsibilities in the best
interests of the public and in accordance with national health
policy
determined by the minister;”
[3]
and
“
to
be transparent and accountable to the public in achieving its
objectives and when performing its functions and when exercising
its
powers
;”
[4]
and
“
to
uphold and maintain ethical standards within the health
professions
;”
[5]
and
“
to
ensure the investigation of complaints concerning persons registered
in terms of this Act and to ensure appropriate disciplinary
action is
taken against such persons in accordance with this Act in order to
protect the interests of the public
;”
[6]
and
“
to
ensure that persons registered in terms of this Act behave towards
users of health services in a manner that respects their
constitutional rights to human dignity, bodily and psychological
integrity and equality, and that disciplinary action is taken against

persons who fail to act accordingly
;”
[7]
[6]
It
is not in issue that the applicant has at all material times been
registered as a health professional
[8]
and remains so. The HPCSA is the
custos
morum
of the medical profession and also “
the
guardian of the public interest insofar as members of the public are
affected by the conduct of members of the profession.
”
[9]
A number of  complaints were lodged with the HPCSA
[10]
against the applicant relating to the conversation on 22 August 2022.
[7]
The
complaints procedure at the HPCSA is a two stage one – first
there is a preliminary inquiry. Once a complaint is received
it is
submitted to the practitioner for response. Once the response is
received, both it and the complaint are submitted to a preliminary

committee of inquiry for consideration. The complaint may be resolved
at the preliminary inquiry stage.
[11]
If the complaint is not resolved at the preliminary inquiry stage,
then it is referred for a formal inquiry.
[12]
[8]
In the present instance, the complaints
were sent to the applicant on 4 November 2022 for her consideration
and response. A response
was sent on 2 December 2022 and a
preliminary committee of inquiry considered them at a meeting held on
23 to 24 January 2023.
It was decided at this meeting that
although the applicant had made herself guilty of unprofessional
conduct, it was only a “
minor
transgression.
”
[9]
In consequence, the HPCSA in a letter on 9
February 2023 informed the applicant of its finding that:
“
In
January 2023 the Committee RESOLVED that: -
(i)
'There is evidence of
unprofessional conduct on Dr Ramathuba in terms Of Regulation 4(9) of
regulations relating to conduct of inquiries
into alleged
unprofessional conduct under the Health Professions Act; and
(ii)
Impose as a penalty a caution and
reprimand to the practitioner in terms of Section 42(1)A of the
Health Professions Act 1974 for
unprofessional behaviour and
unbecoming of a medical profession to be shouting al a patient's
bedside as the patient was vulnerable
at the time.”
[10]
This was followed by a further letter on 13
February 2023 in which it was stated:
“
The
acceptance of the penalty and the payment of the fine will not
constitute a conviction and will not be reflected against your
name
as a previous conviction. The matter will thus be regarded as a
finalised.
If
the penalty is rejected or no response is received within 14 days of
receipt of this Notice, the penalty so rejected or not responded
to
may no longer be applied to the matter and the Registrar will arrange
for an inquiry into your conduct to be held in terms of
the
Regulations….”
[11]
Properly construed, the letters of 9 and 13
February 2023 both communicated the decision of the preliminary
committee of inquiry
and so the 14-day period began to run on 14
February 2023 and expired on 28 February 2023.
[12]
The
applicant wrote  to the HPCSA on 18 February 2023, challenging
the finding on the basis that the HPCSA had no jurisdiction,
and that
the finding ought never to have been made. At no stage was the
finding either accepted or rejected.
[13]
On 9 March 2023, the HPCSA responded to the letter and disavowed the
contention that it did not have jurisdiction or that the finding
had
not been properly made. The applicant was informed that the matter
would be referred to an inquiry.
[13]
On 29 March 2023, the HPCSA then proceeded
to notify the applicant of the holding of  a formal inquiry to
be held from 25 to
27 July 2023.
[14]
The applicant does not want the inquiry to
proceed or to attend it and hence the present application for an
interim interdict pending
the review of the finding.
[15]
The
requirements for the granting of an interim interdict were expressed
in in LF Boshoff Investments (Pty) Ltd v Cape Town Municipality
[14]
as follows:
“
Briefly
these requisites are that the applicant for such temporary relief
must show –
(a)
That the right which is the subject
matter of the main action and which he seeks to protect by means of
interim relief is clear
or, if not clear, is prima facie established,
though open to some doubt;
(b)
that, if the right is only prime
facie established, there is a well-grounded apprehension of
irreparable harm to the applicant if
the interim relief is not
granted and he ultimately succeeds in establishing his right;
(c)
that the balance of convenience
favours the granting of interim relief; and
(d)
that the applicant has no other
satisfactory remedy.”
[16]
I intend dealing with each of the
requirements in turn.
[17]
Firstly, what is the  right which the
applicant seeks to assert? The applicant’s case is that by
virtue of the fact that
she holds office as MEC, she is not subject
to the jurisdiction of the HPCSA. It is her assertion that she
conducted the conversation
with the patient on 22 August 2022 in her
capacity as MEC and not as a medical practitioner and for that reason
it is not subject
to the HPCSA’s scrutiny.
[18]
The
applicant also asserts that the finding of the preliminary committee
of inquiry infringed her Constitutional
[15]
rights. The rights affected are said to be her right to equality
[16]
,
freedom of expression
[17]
,
political right to participate in political activities of the
political party of her choice
[18]
,
the right to fair administrative action
[19]
and the right of access to court.
[20]
[19]
Despite
asserting the infringement of the rights, no basis was laid for this.
The crisp question is this – Is the applicant
in her capacity
as MEC a separate persona from the applicant as a medical
practitioner? The office of the MEC is a political one
whereas the
applicant’s status as a medical practitioner is a professional
one
[21]
.
[20]
It is not in issue that the applicant was
registered as a medical practitioner and subject to the HPCSA before
she was appointed
to the office of MEC. The holding of the political
office and remaining registered as a medical practitioner are not
mutually exclusive.
The one hallmark of both the political office and
the professional standing as a medical practitioner is that in both
fields of
endeavour the individual concerned accepts that they are,
and subject themselves, to being accountable for their actions.
[21]
Insofar
as the office of MEC is concerned, when assuming the office, the
applicant took an oath in which she undertook to “
obey
respect and uphold all other law of the Republic
”
and to conduct herself in the office of MEC with “
honour
and dignity
”.
[22]
[22]
The oath of office  as MEC stands
alongside the Act and with the provisions of section 3(o). It seems
to me to be a wholly
contrived and self-serving assertion that
conduct is to be determined depending upon “which hat a person
is  wearing
at the time”. This is simply not consistent
with our Constitutional values or the law. There is to my mind no
distinction
to be drawn between the different offices a person holds
and their conduct.
[23]
The
applicant simply has no right, let alone a prima facie right
[23]
to avoid the jurisdiction of the HPCSA in circumstances where she has
maintained her registration in terms of the Act. The position
would
have been different if she had de-registered as she is entitled to
do.
[24]
Secondly,
is there a well-grounded  apprehension of irreparable harm? The
applicant’s failure to accept the finding of
the preliminary
committee of inquiry means that the entire matter will serve before a
new different committee and be considered
afresh. The applicant will
have the opportunity to raise whatever challenges she wishes to at
the inquiry, and each will be considered
on its merits. The finding
of the preliminary committee of inquiry is neither binding upon nor
does it in any way affect the rights
of the applicant. It was in its
terms an olive branch which the applicant was free to either accept
or not. In the present matter
there is simply no apprehension of
irreparable harm, well-grounded or otherwise.
[24]
[25]
Thirdly,
does the does the balance of convenience favour the granting of an
interdict? In my view, in the present matter it does
not. The HPCSA
is enjoined
[25]
by the Health Professions Act to investigate complaints. Delaying the
matter unnecessarily pending a review, does not serve the
interests
of any of the parties.
[26]
[26]
Lastly, is there no other satisfactory
remedy? The holding of the inquiry is in and of itself where the
remedy lies. The applicant
can then at the inquiry raise any
defence available to her, place in issue and rebut any allegations
made against her.
[27]
It does not behoove the applicant to refuse
to accept the finding of the preliminary inquiry committee that she
had committed a
minor transgression for which there was no sanction
beyond a reprimand that would not stain her professional record and
to then
assert that the
de novo
inquiry at which she would have the opportunity to vindicate herself
does not provide her with a satisfactory remedy.
[28]
Accordingly, I find that the applicant has
failed to make out a case for the granting of the relief sought in
Part A of the application.
The costs will follow the result.
[29]
In the circumstances, I make the following
order:
[29.1]
The application (Part A) is dismissed with costs.
A MILLAR
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
HEARD ON:
30 MAY  2023
JUDGMENT DELIVERED ON:
2 JUNE 2023
COUNSEL FOR THE
APPLICANT:
ADV. M RAMAILA SC
ADV.
D MADIBA
INSTRUCTED BY:
THE STATE ATTORNEY,
PRETORIA
REFERENCE:
689/23/RA
COUNSEL FOR THE
RESPONDENTS:
ADV. LUBBE
INSTRUCTED BY:
NKOPODIMPHAHLELE
INCORPORATED
REFERENCE:
MPHAHELE/MUTHAMBI/00031
[1]
56
of 1974.
[2]
Ibid
section 3(j).
[3]
Ibid
section 3(k).
[4]
Ibid
section 3(l).
[5]
Ibid
section 3(m).
[6]
Ibid
section 3(n).
[7]
Ibid
section
3(o).
[8]
A
prerequisite to practice as a health professional within the
Republic is registration  in terms of section 17(3) of the
Act.
Persons may also voluntarily cancel their registration in terms of
section 19(1)(c) of the Act provided that there is no
pending
professional misconduct or anticipated criminal proceedings against
them. This is to be confirmed on oath. The consequence
of removal
from the register is that the person may not, in terms of section
18(3), practice as a health professional.
[9]
Veriava
and Others v President, SA Medical and Dental Council and Others
1985 (2) SA 293 (T).
[10]
The
conduct of inquiries into alleged unprofessional conduct in terms of
the Act is governed by regulations published in GN R102
of 2009 (GG
31859 of 6 Feb. 2009).
[11]
In
terms of regulation 4(9).
[12]
In
terms of regulation 4(8).
[13]
De
Beer v Health Professions Council of South Africa
2005 (1) SA 332
(T).
[14]
1969
(2) SA 256
(C) at 267A-F; see also Setlogelo v Setlogelo
1914 AD 221
at 227.
[15]
The
Constitution of the Republic of South Africa 1996.
[16]
Ibid
section 9.
[17]
Ibid
section 16.
[18]
Ibid
section 19.
[19]
Ibid
section 33.
[20]
Ibid
section 34.
[21]
Health
Professions Council of South Africa and Others v Grieve
(1356/2019)
[2021] ZASCA 6
(15 January 2021) at para 17.
[22]
The
oath taken by the applicant as MEC is set out in Schedule 2 Part 5
of the Constitution.
[23]
South
African Informal Traders Forum and Others v City of Johannesburg and
Others
2014
(4) SA 371
(CC) at para [25]. The finding of the preliminary
committee of inquiry was neither final nor binding upon the
applicant and for
that reason the review lacks prospects of success.
[24]
Free
State Gold Areas Ltd v Merriespruit (Orange Free State) GM Co Ltd
1961 (2) SA 505
(W) at 518
[25]
Mapholisa
v Phetoe NO and Others
2023
(3) SA 149
(SCA) at paras [24] – [25].
[26]
Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton & Another
1973 (3) SA 685
(A) at 691D-E.