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[2019] ZAGPPHC 149
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Health Professions Council of South Africa v Basson (29967/15) [2019] ZAGPPHC 149 (7 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
YES/
NO.
(2)
OF
INTEREST TO OTHER JUDGES:
YES/
NO.
(3)
REVISED.
Case Number:
29967 /15
7/5/2019
In
the matter between:
HEALTH
PROFESSIONS COUNCIL OF SOUTH AFRICA
Applicant
and
DR
WOUTER
BASSON
Respondent
JUDGMENT (APPLICATION FOR
LEAVE TO APPEAL)
POTTERILL
J
[1]
The test whether to grant an application for leave to appeal is to be
found in section
17 of the Superior Courts Act 10 of 2013:
"(1) leave
to appeal may only be given where the Judges or Judges concerned are
of the opinion
that
-
(a)(i) the appeal would have a
reasonable prospect of success; or
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;
...
"
In
medias res
principle
[2]
I
am satisfied that on this ground of appeal there is no reasonable
prospect of success simply because the Supreme Court of Appeal
in
Basson v Hugo and Others
2018
(3) SA 46
(SCA)
unequivocally found
that due to the averred bias, the refusal of the recusal application
must be decided. Without repeating all
the findings it was
inter
alia
based thereon that the tribunal
to which Basson could appeal after finalisation of the matter had no
jurisdiction to entertain an
appeal based on bias and the subsequent
refusal of recusal application. In essence, the internal remedy would
be ineffective and
the immediate judicial consideration of the
recusal application was necessary.
Other compelling reasons why
the appeal should be heard
[3]
It
was argued that this judgment has left the Health Professions Council
of South Africa ("the HPCSA") in an extremely
difficult
position, because all committee members would belong to SAMA and my
judgment would therefore effectively render it close
to impossible to
compile a committee for a disciplinary hearing. This submission is
totally unfounded. This matter was based on
the fact that as a member
of SAMA there was a petition from SAMA expressing a definite view
about which sanction Basson should
receive. Under those circumstances
the committee had to disclose that despite being members of SAMA they
did not associate themselves
with the petition. The mere membership
of SAMA is not a disqualification. It was not put before me that as a
rule SAMA files petitions
in support of sanctions; in fact that is
doubtful. However, should it occur in future, by simply stating that
the committee members
was not swayed by the petition or that they
distanced themselves from the petition, the presumption that
presiding officers are
unbiased would always favour the committee and
they would be able to fulfil their duties. There is accordingly no
prospects of
success on this ground of appeal.
The prospects of success
[4]
I am satisfied that the fact that Hugo did not disclose that he was a
member of SAMA
and did not distance himself from the petition, which
SAMA signed, and the conduct of the committee pertaining to sentence
did
establish that a reasonable, objective and informed person would
on these facts reasonably apprehend that the committee would not
bring an impartial mind to the sanctioning procedures.
[5]
The application for leave to appeal is dismissed with costs,
including the costs consequent
upon the employment of two counsel.
S.
POTTERILL
JUDGE
OF THE HIGH COURT
CASE
NO: 29967 /15
HEARD
ON: 3 May 20 19
FOR
THE APPLICANT: ADV. S. JOUBERT SC
INSTRUCTED
BY: Malatji Kanyane Inc.
FOR
THE RESPONDENT: ADV. J.G. CILLIERS SC
ADV. M.M.W. VANZYL SC
INSTRUCTED
BY: Geyser & Coetzee Attorneys
DATE
OF JUDGMENT: 7 May 2019