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[2011] ZASCA 135
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Roux v Health Professions Council of South Africa and Another (786/2010) [2011] ZASCA 135; [2012] 1 All SA 49 (SCA) (21 September 2011)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 786/2010
In the matter between:
LYNETTE
MARY ROUX
…............................................................
Appellant
and
HEALTH
PROFESSIONS COUNCIL
OF
SOUTH AFRICA
…........................................................
First
Respondent
OLIVER
MICHAEL POWELL
…..................................
Second
Respondent
Neutral
citation:
Roux v Health Professions Council of SA
(786/2010)
[2011] ZASCA 135
(21 September 2011)
Coram
: Navsa, Lewis,
Ponnan, Mhlantla and Malan JJA
Heard
: 17 August 2011
Delivered
: 21 September
2011
Summary
:
Health
Professions Act 56 of 1974 and regulations ─ interpretation and
application of provisions dealing with disciplinary
inquiries ─
principle of legality ─ council obliged to act in accordance
with its statutory powers ─ decision
of pro forma complainant
to add additional charge not sanctioned by Health Professions Council
and not sourced in law ─ additional
charge set aside.
___________________________________________________________
ORDER
___________________________________________________________
On appeal from:
North
Gauteng High Court, Pretoria (Tuchten J sitting as court of first
instance):
1 The appeal is upheld with
costs.
2 The order of the court below is
set aside and replaced with the following:
'(a) Count 1 of the charge sheet
dated 4 September 2009 is set aside.
(b) The first respondent is
ordered to hold an inquiry into the appellant's alleged misconduct
solely in respect of Count 2, within
two months of the date of this
judgment.
(c) The first and second
respondents are ordered jointly and severally, the one paying the
other to be absolved, to pay the costs
of the application.'
___________________________________________________________
JUDGMENT
MHLANTLA JA
(
NAVSA,
LEWIS, PONNAN and MALAN JJA)
concurring):
[1] This appeal, with leave of
the court below, turns on the interpretation and application of the
provisions of the Health Professions
Act 56 of 1974 dealing with
disciplinary enquiries. It also implicates the regulations relating
to the conduct of inquiries into
alleged unprofessional conduct,
promulgated in Government Notice 765 dated 24 August 2001 and
published in Government Gazette 22584,
made under the Act. The
specific provisions will be referred to in due course. The events
leading up to the litigation that culminated
in the present appeal
are set out hereafter.
[2] The appellant, Ms Lynette
Mary Roux, a clinical psychologist, was appointed to conduct forensic
work and furnish a report to
the office of the Family Advocate in
Johannesburg, regarding litigation between the second respondent, Mr
Oliver Michael Powell
and Ms Linda Petzer about access to a minor
child Byron, born of the relationship between them. The appellant
furnished the Family
Advocate with her report on 19 March 2004. She
thereafter assumed the role of a therapeutic psychologist and began
treating Byron.
During March 2005, and while still treating Byron,
the appellant supplemented her March 2004 report.
[3] On 11 April 2005 Powell,
through the registrar, submitted a complaint to the first respondent
against the appellant which he
supplemented in September 2005. The
first respondent, the Health Professions Council of South Africa
(HPCSA), was established in
terms of s 2 of the Act and has as its
objects, amongst others, to promote and to regulate interprofessional
liaison between health
professions in the interest of the public and
to control and exercise authority in respect of all matters affecting
the profession.
The HPCSA must, in terms of s 3(j) of the Act, serve
and protect the public in matters involving the rendering of health
services
by persons practising a health profession. Importantly for
this case, one of the functions of the HPCSA is set out in s 3(n) of
the Act, which is:
'
to
ensure the investigation of complaints concerning persons registered
in terms of this Act and to ensure that appropriate disciplinary
action is taken against such persons in accordance with this Act in
order to protect the interest of the public.'
[4] In essence, Powell’s
first complaint was that the appellant had acted unprofessionally
when she assumed multiple relationships,
that is, that of being an
investigator appointed by the Family Advocate and then also a
therapist to Byron. Secondly, Powell complained
that the appellant
had misdiagnosed his condition and had labelled him a liar. Powell
requested the HPCSA to investigate these
allegations and institute an
inquiry into the conduct of the appellant. Acting in terms of
regulation 3(1)b)
1
the registrar forwarded a copy of
the complaint to the appellant requesting her to respond. The
appellant submitted a written response
in February 2006.
[5] Thereafter, in terms of
regulation 3(2),
2
the matter was placed before the
committee of preliminary inquiry of the professional board for
psychology (the committee). The
committee obtained an opinion from
Professor Charl Vorster, a clinical psychologist, in regard to the
allegations of unprofessional
conduct. His view was that the
appellant should be prosecuted only on the allegation of multiple
relationships. It is common cause
between the parties that the
committee accepted Prof Vorster's opinion. On 18 May 2007 the
committee resolved, in terms of regulation
3(3) and (4), that an
inquiry into the conduct of the appellant should be held.
[6] The pro forma complainant
3
prepared a draft charge sheet
which referred to the multiple relationships charge only. This draft
charge sheet was submitted to
the chairman of the committee for final
approval and was approved by the latter on 18 July 2007 – this
procedure is not statutorily
prescribed but appears to be established
practice. The registrar, acting in terms of regulation 4(a),
thereafter issued a notice
enclosing the charge sheet to the
appellant specifying the date, time and place where the inquiry into
this lone charge would be
held.
[7] The inquiry was postponed on
numerous occasions for various reasons. The charge sheet was also
amended on at least three occasions.
First, it was amended by the pro
forma complainant, without reference to the professional committee,
after Powell insisted that
the pro forma complainant also prefer the
misdiagnosis charge against the appellant. In this regard Powell
relied on an opinion
from Professor D A Louw, a clinical
psychologist. Second, the pro forma complainant withdrew the charge
sheet after Vorster advised
him that the evidence before the
committee of preliminary enquiry revealed only one count of
misconduct, that is, the multiple
relationships charge. A new charge
sheet was served upon the appellant. The third occasion is referred
to in para 9 below.
[8] As the inquiry was repeatedly
postponed, the appellant launched an application in the North Gauteng
High Court, Pretoria for
declaratory and interdictory relief against
the HPCSA and Powell. She sought an order that the inquiry instituted
against her in
terms of s 41 of the Act be declared unlawful,
unreasonable and/or procedurally unfair and directing that the
inquiry be permanently
stayed.
[9] Following what is set out in
para 7 Powell was even more insistent that the misdiagnosis charge be
added. He placed reliance
on an opinion from another expert, Dr
Louise Olivier, a clinical and counselling psychologist. This stance
by Powell led to the
pro forma complainant withdrawing the old charge
sheet and supplanting it with a new one containing two charges, the
multiple relationships
and misdiagnosis charges. This charge sheet
was served on the appellant on 4 September 2009.The parties were at
this stage exchanging
affidavits in preparation for the hearing of
the application in the court below.
[10] This caused the appellant to
file an amended notice of motion in which she sought additional
relief, inter alia, a declarator
that the charge sheet dated 4
September 2009 be set aside; alternatively, that count 1 thereof (the
misdiagnosis charge) be set
aside, and that the HPCSA be directed to
hold an inquiry only into the alleged misconduct in respect of count
2 (the multiple relationships
charge).
[11] In the court below the
appellant submitted that the charges be set aside due to the delays
caused in bringing the matter to
finality as well as the fact that
the pro forma complainant had exceeded his authority when he
preferred the misdiagnosis charge.
The HPCSA and Powell, on the other
hand, contended that it was premature for the appellant to approach
the court as the actual
inquiry had not been conducted and that the
pro forma complainant had acted within his statutory authority.
[12] Tuchten J in the court below
held that there was insufficient evidence to support the claim for
the undue delay in conducting
the inquiry. Furthermore, the learned
judge held that the committee had not authorised an inquiry into
specific conduct, but merely
considered the material placed before it
and decided, in general terms, that an inquiry should be held.
According to the judge,
once the committee had decided that the
complaint had merit, its function was complete. He held that the
ambit of the inquiry was
rightly determined by the pro forma
complainant. He thus dismissed the application with costs. He later
granted leave to this court.
[13] Before us, the litigation
between the parties has been reduced to a single issue: whether a pro
forma complainant has the authority
to prefer charges against a
health practitioner which were not authorised by the committee of
preliminary enquiry?
[14] As in the court below,
counsel for the appellant contended that the pro forma complainant
had exceeded his authority when he
included the misdiagnosis charge
in the charge sheet as he was restricted to formulating a charge as
determined by the committee.
Put differently, the question concerned
the principle of legality. The submission advanced on behalf of the
respondents was that
the relief sought by the appellant was not
competent because the matter was not ripe for review, since the
disciplinary enquiry
had not even begun and that the pro forma
complainant in any event had the requisite authority to determine the
nature and extent
of the charges to be brought against a health
practitioner.
[15] As indicated earlier in this
judgment, the answer to this issue depends on the interpretation and
application of the provisions
of the Act and the regulations. It is
thus apposite at this stage to consider the scheme of the Act.
The relevant provisions of s 15
of the Act provide:
'15.
Establishment
of professional boards
:
(1) The Minister
shall, on the recommendation of the council, establish a professional
board with regard to any health profession
in respect of which a
register is kept in terms of this Act, or with regard to two or more
such health professions.
. . .
(5) Regulations
relating to the constitution, functions and functioning of a
professional board shall at least provide for─
. . .
(f) the
establishment by a professional board of such committees as it may
deem necessary, each consisting of so many persons appointed
by the
board as the board may determine, but including at least one member
of the board who shall be the chairperson of such committee,
and the
delegation to any person or any committee so established, such of its
powers as it may from time to time determine, but
shall not be
divested of any power so delegated.'
Section 41 provides:
'41.
Inquiries
by professional boards into charges of unprofessional conduct:
(1) A professional
board shall have power to institute an inquiry into any complaint,
charge or allegation of unprofessional conduct
against any person
registered under this Act, and, on finding such person guilty of such
conduct, to impose any of the penalties
prescribed in section 42(1).
(2) A professional
board may, whenever it is in doubt as to whether an inquiry should be
held, in connection with the complaint,
charge or allegation in
question consult with or seek information from any person, including
the person against whom the complaint,
charge or allegation has been
lodged.'
[16] As stated above, s 3(n)
empowers a council to investigate complaints against health
practitioners and to ensure that appropriate
disciplinary action is
taken against such persons in terms of the Act. Section 41(1) confers
on the professional board the power
to institute inquiries into
complaints, charges or allegations of unprofessional conduct. A board
may in terms of s 15(5)f) establish
committees comprising such
persons as the board may deem fit, and shall include at least one
member of the board. It may delegate
to such committee such of its
powers as it may determine.
[17] In terms of s 61(h)(i) of
the Act, the Minister is empowered, after consultation with the
council, to make regulations relating
to the manner in which
complaints, charges or allegations brought against a registered
person shall be lodged. The regulations
promulgated in terms of the
Act deal with the manner in which the complaints of alleged
unprofessional conduct are to be dealt
with. Regulation 2(1) states:
'A complaint shall
be in writing and be addressed to the registrar or to the council or
to a professional board.'
[18] Regulation 3 sets out the
procedure to be adopted upon receipt of a complaint. The registrar
may either call for further information,
or within seven days forward
the complaint to the affected person, calling upon him or her to
respond to such complaint or allegations.
For present purposes the
critical provisions are regulation 3(3) and (4) and regulation 4(a)
and (b) and these provide:
'(3) If a committee
of preliminary inquiry decides, after due consideration of the
matter, that there are no grounds for an inquiry,
it shall direct the
registrar to communicate in writing its decision to the complainant
and the accused stating the reason(s) for
such decision.
(4) If a committee
of preliminary inquiry decides, after due consideration of the
matter, that an inquiry must be held into the
conduct of the accused,
it shall direct the registrar to arrange for the holding of an
inquiry.
4(a) On receipt of a
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
a charge sheet as formulated by
the pro forma complainant.
(b) The notice
referred to in paragraph (a) shall be served on the accused or mailed
to him or her at his or her registered address
by registered mail at
least one month prior to the date of the aforesaid inquiry.'
[19] The primary rule in the
interpretation of statutes is to give effect to the object or purpose
of the statute. The nature of
the statute and the purpose for which
it was enacted are important when it comes to matters of
interpretation. This court has embraced
the purposive approach,
whereby statutory words must be interpreted in the context of the
statute as a whole including its purpose.
4
In
Stopforth
v Minister of Justice;
Veenendaal
v Minister of Justice
5
this court confirmed that 'even
where the language is unambiguous, the
purpose
of the Act and other wider
contextual considerations may be invoked in aid of a proper
construction'. It follows therefore that
the Act and regulations must
be given a purposive construction to give effect to their principal
aims and purposes.
[20] Before us, the parties were
agreed that the committee's role as referred to in sub-regulations
(3) and (4) was to ensure that
only sustainable complaints were
proceeded with ─ a sifting function.
[21] It was contended on behalf
of Powell that the sifting process was not one in respect of which a
specific charge or charges
was or were to be considered but rather
where the committee decided whether all the information before it
should form the basis
of the charge or charges to be formulated by
the pro forma complainant.
[22] In my view the submission on
behalf of Powell is fallacious. The very basis of having a committee
to conduct a preliminary
inquiry, is to decide, with the skills
available to it, which of the complaints put before it were
warranted. The committee consists
of health professionals who possess
skills relative to the regulated profession.
They
are best
suited to decide whether there are grounds on which to conduct an
inquiry into unprofessional conduct. It is that committee's
function
to specify the conduct to be the subject of inquiry.
[23] The pro forma complainant in
this case is a person legally trained whose task, in my view, is to
ensure that the circumscribed
conduct is accurately encapsulated in
an intelligible form by way of a formal charge sheet. If this were
not so, the wrong professionals
would be charged with tasks beyond
their expertise.
[24] That this is how the scheme
of the Act is understood by the HPCSA, is borne out not only by what
transpired in this case before
the aggressive intervention by Powell,
but also by how the process of inquiries is described in general
terms by Mr Janzen, who
was employed by the HPCSA as a pro forma
complainant.
[25] In the present case the
committee had authorised only the bringing of the multiple
relationships charge. This it did in terms
of regulation 3(4).
Janzen, who deposed to the answering affidavit and the supplementary
answering affidavit on behalf of the HPCSA,
stated that the committee
had resolved that an inquiry be held in regard to the complaint of
the appellant's multiple relationships.
In consultation with Vorster,
a draft charge sheet was prepared and approved on 4 July 2007. This
charge sheet was later submitted
to the chairman of the committee for
final approval, who approved it on 18 July 2007. The new charge sheet
dated 4 September 2009
which included two charges was never submitted
to the chairperson of the committee for approval, nor were the
reports by Olivier
and Louw presented to the committee for its
consideration.
[26] It was submitted on behalf
of Powell that the words 'an inquiry must be held into the conduct of
the accused' meant that all
that the committee was required to do was
to decide whether an inquiry should be held into the conduct apparent
from the information
placed before the committee, without the need
for specificity. In my view, this latter submission falls to be
rejected. It renders
the sifting process nugatory. Furthermore it is
at odds with fundamental principles of administrative law, namely
that decisions
'affecting individuals' should be based on
substantiated information and that the person at the receiving end of
disciplinary action
should be clearly apprised of the nature of the
charges he or she has to face to enable a proper defence to be
mounted.
6
[27] The pro forma complainant
accordingly did not have the authority to include the misdiagnosis
charge in the charge sheet. He
was furthermore not entitled to accept
expert opinions sourced by the second respondent and formulate the
misdiagnosis charge based
on such opinions. He had a duty to act in
accordance with the instructions of the committee. In the result the
high court erred
in finding that the pro forma complainant had the
power to determine the ambit of the inquiry, including the specific
charges to
be preferred.
[28] Counsel for the HPCSA and
Powell submitted that the formulation of the charge sheet did not
constitute 'administrative action'
as defined in section 1 of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA) and
therefore that there were no grounds
to review the decision.
[29] Administrative action is
defined in s 1 of PAJA as:
'any decision taken,
or any failure to take a decision, by ─
(a) an organ of
state, when ─
(i) exercising a
power in terms of the Constitution or a provincial constitution; or
(ii) exercising a
public power or performing a public function in terms of any
legislation; or
(b) a natural or
juristic person, other than an organ of state, when exercising a
public power or performing a public function in
terms of an
empowering provision,
which adversely
affects the rights of any person and which has a direct, external
legal effect . . . .'
7
In my view, Janzen (however
misguided), acting on behalf of the HPCSA, in deciding on and
proceeding to add the additional charge,
was engaging in
administrative action. His decision clearly falls within the
definition of 'administrative action' and is in the
ordinary course
subject to review for lack of statutory authority in terms of s 6 of
PAJA.
[30] Even if this were not so,
the committee and the pro forma complainant exercised public power,
purportedly in terms of the provisions
of the Act and the
regulations. In
Fedsure
Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council
the following
was said in para 40:
8
'It is not necessary
in the present case to attempt to characterise the powers of local
government under the new constitutional
order, or to define the
grounds on which the exercise of such powers by an elected local
government council itself can be reviewed
by the Courts. The exercise
of such powers, like the exercise of the powers of all other organs
of State, is subject to constitutional
review which, . . . includes
review for "legality" . . .'.
[31] The principle of legality is
implicit in our Constitution and applies to every exercise of public
power, thus providing an
essential safeguard even when action does
not qualify as 'administrative action' for purposes of PAJA or the
Constitution. As stated
by Sachs J in
Minister
of Health NO v New Clicks South Africa (Pty) Ltd (Treatment Action
Campaign as
amicus
curiae)
9
'The constitutional principle of
legality is of application even when the action in question is an
exercise of public power that
does not qualify as "administrative
action" . . .'. The principle of legality requires that 'power
should have a source
in law' and 'is applicable whenever public power
is exercised. Public power . . . can be validly exercised only if it
is clearly
sourced in law'.
10
[32] The principle of legality
dictates that administrative authorities such as the HPCSA cannot act
other than in accordance with
their statutory powers. The decision of
the pro forma complainant to include the misdiagnosis charge was not
'sourced in law' and
has offended against the principle of legality.
The decision has to be reviewed and nullified for want of statutory
power. It follows
that the misdiagnosis charge has to be set aside.
The inquiry, if it continues, can relate only to the multiple
relationships charge.
[33] It is necessary briefly to
consider the respondents' submission that the matter was not ripe for
review as the inquiry had
not been held. This contention cannot be
sustained. A person is not prevented from applying to court for
relief where his very
complaint is the illegality or fundamental
irregularity in respect of the decision he seeks to challenge or
impugn.
11
There is no reason why a person
such as the appellant should first subject herself to an unauthorised
inquiry which would entail
costs and wasted time before challenging
its legality. This is not the kind of case where the question of
ripeness arises as the
challenge relates to the source of power and
the principle of legality. The appellant was entitled to a
declaratory order in that
regard.
[34] Finally, there is a
disturbing aspect of this case that I am constrained to address. The
purpose of establishing the HPCSA
was to protect the public interest.
The complaint was lodged in April 2005. The inquiry is yet to be
heard, six years later. Such
a state of affairs reflects badly on the
HPCSA and affects public confidence in it.
[35] For the reasons stated above
the appeal succeeds. The following order is made:
1 The appeal is upheld with
costs.
2 The order of the court below is
set aside and replaced with the following:
'(a) Count 1 of the charge sheet
dated 4 September 2009 is set aside.
(b) The first respondent is
ordered to hold an inquiry into the appellant's alleged misconduct
solely in respect of Count 2 within
two months of the date of this
judgment.
(c) The first and second
respondents are ordered jointly and severally, the one paying the
other to be absolved, to pay the costs
of the application.'
_______________
N Z MHLANTLA
JUDGE OF APPEAL
APPEARANCES
For Appellant: P Beltramo SC
Instructed by:
Bowman Gilfillan Inc,
Johannesburg
Symington & De Kok,
Bloemfontein
For 1
st
Respondent: E
B Clavier
Instructed by:
Matabane Incorporated, Pretoria
EG Cooper & Majiedt Inc,
Bloemfontein
For 2
nd
Respondent: F
A Snyckers
Instructed by:
Darryl Furman & Associates,
Johannesburg
Matsepes, Incorporated,
Bloemfontein
1
Regulation
3(1)(b) reads:
'3(1)
The registrar may ─
.
. .
(b)
within seven working days after he or she received a complaint,
notify the accused of the complaint or forward particulars
of the
complaint to him or her –
(i)
requesting a written response from him or her within 21 working days
after receipt of such notification or particulars, failing
which the
complaint will be forwarded to the preliminary inquiry committee
without such written response; and
(ii)
warning him or her that the written response referred to in
subparagraph (i) may be used in evidence against him or her.
.
. .'
2
Regulation
3(2) reads:
'
On
receipt by the registrar of further information or a written
response referred to in subregulation (1)(a) or (b), the registrar
shall submit such further information or written response to the
committee of preliminary inquiry and if no further information
or
written response is received, the registrar shall report this to the
committee of preliminary inquiry.'
3
Regulation
1 defines a pro forma complainant as 'a person appointed by a
professional board to represent the complainant and to
present the
complaint to a professional conduct committee'.
4
See
Bastian Financial Services (Pty) Ltd v
General Hendrik Schoeman Primary School
2008
(5) SA 1
(SCA) paras 16-19.
5
Stopforth
v Minister of Justice; Veenendaal v Minister of Justice
2000
(1) SA 113
(SCA) para 21.
6
Lawrence
Baxter
Administrative Law
(1984)
at 546. See also Cora Hoexter
Administrative
Law in South Africa
(2007) at 334.
7
In
Grey's Marine Hout Bay (Pty) Ltd v Minister of Public Works
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) para 24 Nugent JA summarised administrative
action as 'the conduct of the bureaucracy (whoever the bureaucratic
functionary
might be) in carrying out the daily functions of the
State, which necessarily involves the application of policy, usually
after
its transition into law, with direct and immediate
consequences for individuals or groups of individuals'.
8
Fedsure
Life Insurance Ltd v Greater Johannesburg Transitional Metropolitan
Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC). See also
Gerber v MEC for Development Planning &
Local Government, Gauteng
2003 (2) SA
344
(SCA) para 35 and
Senwes Ltd v
Competition Commissioner of South Africa
(118/2010)
[2011] ZASCA 99
para 51.
9
Minister
of Health v New Clicks South Africa (Pty) Ltd
2006
(2) SA 311
(CC) para 613.
Premier,Western
Cape v Overberg District Municipality
2011
(4) SA 441
(SCA) paras 37-38.
10
AAA
Investments (Pty) Ltd v Micro Finance Regulatory Council
[2006] ZACC 9
;
2007 (1) SA 343
(CC) para 68.
11
Welkom
Village Management Board v Leteno
1958 (1) SA 490
(A) at 503A-D.