Brief Summary

Disciplinary Proceedings — Recusal — Application for recusal of tribunal members — Dr. W. Basson challenged the refusal of the Tribunal Committee to recuse itself from his disciplinary hearing on grounds of potential bias due to a member's affiliation with an organization petitioning for his removal from the medical roll — The High Court found that the refusal to recuse was irregular and that Basson had sufficient grounds for his application, allowing him to pursue recusal within a specified timeframe.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an application to review and set aside a decision taken during professional disciplinary proceedings conducted under the auspices of the Health Professions Council of South Africa (HPCSA). The particular decision under review was the refusal by the disciplinary tribunal committee to recuse themselves from further participation in the proceedings.

The applicant was Dr Wouter Basson, a medical practitioner facing disciplinary charges of unprofessional conduct. The first and second respondents were Professor J F M Hugo and Professor R E Mhlanga, members of the Tribunal Committee that presided over the disciplinary hearing. The third respondent was the HPCSA. (A retired judge, Judge Eloff, also sat on the committee to regulate legal aspects during the hearing, but had since passed away by the time of this judgment.)

The matter had a significant procedural history. Basson had previously brought a review application in the High Court; that application was dismissed by Unterhalter AJ (as he then was) on the basis that Basson had to exhaust internal remedies in terms of section 7(2) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). On appeal, the Supreme Court of Appeal set aside that order, holding that the proposed internal remedy was ineffective because the relevant appellate structure lacked the power to grant the relief sought, and remitted the matter to the High Court to decide the review. This judgment is the High Court’s determination of the remitted review application.

The general subject-matter of the dispute was procedural fairness and impartiality in disciplinary proceedings, specifically whether the committee’s conduct (including non-disclosure of relevant associations and how the proceedings were managed) gave rise to a reasonable apprehension of bias, requiring recusal.

2. Material Facts

The court treated as common cause that Basson faced six charges of unprofessional conduct arising from events in the 1980s. He was acquitted on two charges and portions of a third, but on 18 December 2013 he was found guilty on the remaining charges. The matter then proceeded to the sanction phase of the disciplinary enquiry.

A key sequence of events arose from the evidence of Mr Haywood, called on 26 November 2014. Haywood acted as the conduit through which two petitions were placed before the committee. The petitions sought to agitate for Basson’s name to be removed from the medical roll. The second petition in particular was supported by a number of organisations, including the South African Medical Association (SAMA) and the Rural Doctors Association of South Africa (RUDASA). Although Basson’s counsel objected to Haywood’s evidence, including on the basis that it constituted hearsay, the committee allowed it, indicating that probative value would be assessed later. Haywood testified, among other things, that SAMA had governance structures through which it endorsed the petition, and that he was not aware of any SAMA member who had objected to participation in the petition campaign.

On 19 January 2015, the proceedings were set to continue with the prosecution calling Professor Mark Blockman as an expert witness in the sanction phase. This was contentious because the parties had agreed that each side would call only one expert on sanction, but the prosecution sought to call Blockman after the prosecution’s chosen expert (Professor Benator) had made concessions favourable to Basson under cross-examination.

By January 2015 Basson had obtained information suggesting that Professor Hugo might be a member of SAMA, one of the organisations supporting the petition for Basson’s removal from the roll. Basson could not initially confirm whether the “Hugo” on the SAMA membership information was the committee member, but his counsel raised the issue at the hearing on 19 January 2015 and asked whether Hugo was a member of any organisation supporting the petition. Hugo indicated that he was a SAMA member but did not provide further information or explanation at that stage. Acting on advice from Judge Eloff, the committee merely noted the request and proceeded with the hearing.

Basson’s counsel requested that the matter be stood down to obtain instructions and, if necessary, to approach the High Court urgently. The committee refused a postponement. Basson’s counsel then left to approach the High Court. In the absence of Basson and his legal representatives, Professor Blockman testified, and a request that Basson reserve the right to cross-examine Blockman later was refused on the basis that Basson had had the opportunity.

Later on 19 January 2015, Baqwa J granted an interim interdict restraining the committee from proceeding pending the finalisation of an urgent application. On 23 January 2015, Bam J heard the urgent application and held that, given the contents of the petition and Hugo’s relationship to SAMA, the committee members were obliged to furnish a proper explanation of possible involvement and/or knowledge of the petition; their refusal was held to be unjustified and irregular. Bam J granted Basson leave to institute a recusal application within 10 days, and ordered costs against the respondents in that urgent application.

Basson’s recusal application was argued on 12 March 2015 and refused on 13 March 2015. The present proceedings concerned the review of that refusal.

In addition to the SAMA issue, the court recorded that the committee members had an association with RUDASA which had not been disclosed when the petition evidence was introduced. The court also recorded that, although further review grounds existed on the papers, the key grounds argued were those relating to (i) non-disclosure and failure to distance from the petition, and (ii) the procedural conduct surrounding the refusal to postpone and the reception of evidence in the absence of Basson’s counsel.

3. Legal Issues

The court was required to determine whether the committee’s refusal to recuse themselves was reviewable and should be set aside on the basis that Basson had established a reasonable apprehension of bias. This primarily involved the application of legal principles to established facts, coupled with an evaluative judgment about how a reasonable, objective, and informed person would perceive the committee’s conduct and associations in context.

Before reaching the merits, a procedural issue arose concerning whether the court should entertain the review midstream (after a guilt finding but before sanction), given the principle against piecemeal reviews (in medias res). The HPCSA argued that the review was premature and should only follow finalisation of the tribunal process. The court had to determine whether it was nevertheless appropriate to hear the review at this stage, particularly in light of the Supreme Court of Appeal’s remittal order and its discussion of fairness and exceptional circumstances.

A further legal question concerned the relationship between the nemo iudex principle (a person may not be a judge in their own cause) and the South African test for bias. Basson argued that Hugo’s SAMA membership created an automatic disqualification. The court had to decide whether South African law recognises such automatic disqualification in the circumstances, or whether the matter remained governed by the established reasonable apprehension of bias test.

4. Court’s Reasoning

Entertaining the review at this stage (in medias res)

The court noted the HPCSA’s reliance on authority discouraging judicial intervention in ongoing tribunal proceedings, including in the context of disciplinary hearings. However, it treated the matter as falling within the category of “rare instances” where intervention is warranted, especially where the complaint is bias, described as an issue of elementary justice.

Central to the court’s approach was the Supreme Court of Appeal’s prior decision in the same litigation, which held that exceptional circumstances existed because the internal remedy was ineffective and because fairness is required at every stage of disciplinary proceedings. The court regarded the Supreme Court of Appeal as having justified immediate judicial consideration of the bias complaint, and it also relied on the express remittal order directing the High Court to decide the review application. On that basis, the preliminary objection was not upheld.

The applicable test for recusal and bias

The court reaffirmed that the cornerstone of a fair legal system is impartial adjudication, applying equally to quasi-judicial and administrative proceedings. It identified the governing test as whether a reasonable, objective and informed person, on the correct facts, would reasonably apprehend that the decision-maker has not or will not bring an impartial mind to the matter, being a mind open to persuasion by evidence and argument. The court located this test in the Constitutional Court’s formulation in President of the Republic of South Africa v South African Rugby Football Union.

Basson advanced an argument that Hugo’s SAMA membership triggered automatic disqualification based on the nemo iudex principle, with reliance on the House of Lords decision in In re Pinochet. The court rejected the submission that South African law required automatic discharge merely because Hugo was a SAMA member. It reasoned that the approach in South African law to these questions is informed by the domestic test for apprehended bias, and it referred to Bernert v Absa Bank Ltd as authority for that proposition. The court therefore approached the matter through the lens of reasonable apprehension of bias rather than automatic disqualification.

Application of the test to the facts: non-disclosure and refusal to explain

The court accepted as a starting point that Hugo was a member of SAMA but not involved in its management, and that SAMA endorsed the petition through its governance structures. The court noted Haywood’s evidence that he was not aware of any SAMA member disassociating themselves from the petition.

The court aligned itself with Bam J’s earlier finding that, given the content of the petition and Hugo’s relationship to SAMA, both Hugo and Mhlanga were obliged to provide a proper explanation of their possible involvement and/or knowledge of the petition. The court considered the committee’s refusal to furnish such information to be significant: objectively, such refusal would prompt a reasonable informed observer to question why disclosure was resisted and whether something relevant to bias was being concealed.

In support of this evaluative conclusion, the court referred to Bernert v Absa Bank Ltd, emphasising the desirability of disclosure of interests (even small ones) to avoid leaving litigants with the impression that something is being hidden, which in turn can undermine confidence in impartial adjudication. Applying this principle, the court held that the committee’s stance—Hugo’s “firm belief” that he need not disclose membership because Basson could not reasonably infer bias—was itself reviewable. The deliberate refusal to disclose, coupled with the absence of any disassociation from the petition’s position, was treated as creating a reasonable apprehension that Hugo supported the viewpoint expressed in the petition and was therefore not impartial.

The court further observed that even after it became apparent that Basson required an explanation of Hugo’s participation in relation to the petition, Hugo never disassociated himself from petition 2. The court added that the committee did not disclose that both members had an association with RUDASA, another organisation listed as supporting the petition. It treated this non-disclosure as an additional fact supporting review and setting aside of the refusal to recuse.

Procedural conduct: refusal of postponement and evidence taken in absence

The court described as “astounding” the committee’s refusal to postpone proceedings even briefly to allow Basson’s counsel to approach the High Court—particularly given that an interdict was in fact later granted. While the court was prepared (for purposes of argument) to assume that refusal of a postponement, viewed in isolation, might not objectively establish bias, it placed emphasis on what followed.

The decisive procedural irregularity, in the court’s view, was that the committee proceeded to take Professor Blockman’s evidence in the absence of Basson and his counsel and then refused to allow cross-examination at a later stage on the basis that the opportunity had already existed. The court characterised this as procedurally irregular and substantively unfair, reflecting a disregard for Basson’s rights. It recorded that counsel for the HPCSA conceded in argument that fairness required that Blockman be recalled for cross-examination, and the court treated that concession as confirming the irregularity and unfairness. In combination with the non-disclosure issues, this reinforced the conclusion that a reasonable apprehension of bias had been established.

Other grounds

Although other grounds were raised in the papers, the court found it unnecessary to decide them because the first two grounds (non-disclosure/refusal to explain and the procedural unfairness relating to the postponement and evidence) were sufficient to resolve the review. The court nevertheless made an obiter remark that the appointment of the same attorneys in roles linked to both the prosecution and the committee members was another fact contributing to the appearance of bias, in circumstances where the matter was serious and had already been protracted.

5. Outcome and Relief

The court reviewed and set aside the first and second respondents’ decision refusing to recuse themselves from the disciplinary proceedings.

The court further ordered that the first and second respondents must recuse themselves from the disciplinary proceedings against Basson.

The court ordered the HPCSA (third respondent) to pay the costs of the review application.

Cases Cited

Basson v Hugo and Others 2018 (3) SA 46 (SCA)

Hlophe v Judicial Service Commission and Others 2007 (4) All SA 67 (GSJ)

Brock v A Medical and Dental Council 1961 (1) SA 319 (C)

Nell v Raad van Eiendomsagente 1986 (4) SA 605 (T)

Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC)

President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 9; 1999 (4) SA 147 (CC)

In re Pinochet [1999] UKHL 1; [1999] 1 All ER 577

Legislation Cited

Promotion of Administrative Justice Act 3 of 2000, section 7(2)

Rules of Court Cited

No rules of court were expressly cited in the judgment.

Held

The High Court held that the refusal by the disciplinary tribunal committee members to recuse themselves was reviewable and fell to be set aside because, on the correct facts, a reasonable, objective and informed person would reasonably apprehend that the committee had not brought an impartial mind to bear on the matter.

This conclusion was based principally on the committee’s refusal to provide proper disclosure or explanation concerning associations implicated by a petition placed before it (including SAMA membership and undisclosed association with RUDASA), and the committee’s conduct in proceeding with expert evidence in Basson’s and his counsel’s absence and refusing a later opportunity to cross-examine, which the court regarded as procedurally irregular and substantively unfair.

The court further held that it was appropriate to entertain the review at this stage of the disciplinary process, particularly in light of the Supreme Court of Appeal’s remittal order and its recognition that fairness is required at every stage and that an ineffective internal remedy need not be exhausted.

LEGAL PRINCIPLES

The judgment applied the principle that impartial adjudication is foundational to a fair legal system and extends beyond courts to quasi-judicial and administrative tribunals, including professional disciplinary bodies.

Recusal was assessed using the established South African test for reasonable apprehension of bias, namely whether a reasonable, objective and informed person, on the correct facts, would reasonably apprehend that the adjudicator will not bring an impartial mind to bear, being open to persuasion by evidence and submissions.

The court treated disclosure as an important practical safeguard of perceived impartiality. Where an adjudicator has an association that could be thought relevant, even if it may not realistically affect the outcome, non-disclosure may create the impression of concealment and thereby contribute to a reasonable apprehension of bias, in line with the guidance drawn from Bernert v Absa Bank Ltd.

The court did not accept that the nemo iudex concept, as argued with reference to In re Pinochet, produced an automatic disqualification in the circumstances. It held that South African law approaches the problem through its own bias test rather than automatic recusal based solely on membership of a professional association.

Finally, the judgment recognised that, although courts generally discourage interruption of ongoing tribunal proceedings (in medias res), immediate judicial intervention may be warranted in exceptional circumstances where bias and fairness are at stake, particularly where an internal remedy is ineffective and where higher authority has remitted the review for determination.

Basson v Hugo and Others (29967/2015Â ) [2019] ZAGPPHC 98; 2019 (5) SA 142 (GP) (27 March 2019)