Preddy and Another v Health Professions Council of South Africa (54/2007) [2008] ZASCA 25 (31 March 2008)

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[2008] ZASCA 25
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Preddy and Another v Health Professions Council of South Africa (54/2007) [2008] ZASCA 25 (31 March 2008)

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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
REPORTABLE
CASE NO: 54/2007
In the matter between
JULIUS PREDDY
...
FIRST APPELLANT
PERCY MILLER
...
SECOND APPELLANT
and
THE HEALTH PROFESSIONS COUNCIL OF SOUTH AFRICA
...
RESPONDENT
CORAM: HOWIE P, MTHIYANE, HEHER, MLAMBO and MAYA JJA
HEARD: 12 MARCH 2008
DELIVERED: 31 MARCH 2008
Summary:
Health Professions Act 56 of 1974 – ss 42
and 43 - medical practitioners guilty of unprofessional conduct –
Penalties imposed
by Professional Committee of Enquiry suspended on
certain conditions – whether such conditions competent.
Interpretation and application of section 42(1) and
43(1)(b) of the Act – intention to empower sentencing authority to
select one
or more of the penalties – substitution of ‘and’ for
‘or’ not to be lightly resorted to.
Neutral
Citation: Preddy v Health Professions Council of SA (54/2007)
[2008]
ZASCA 25
(31 March 2008).
JUDGMENT
MTHIYANE JA
MTHIYANE JA:
[1] The first and second appellants are specialist medical
practitioners registered in terms of the Health Professions Act 56 of
1974 (‘The Act’). At a disciplinary enquiry conducted by the
Professional Conduct Enquiry Committee (‘the Committee’) in
terms
of s 41 of the Act, the appellants were found guilty of
unprofessional conduct. Their conviction arose from an arrangement
in
terms of which the appellants referred patients to a radiology firm
in return for which they received certain payments. The payments
were
found by the Committee to constitute perverse incentives
(‘kickbacks’) and their receipt by the appellants, disgraceful
conduct. In total the first appellant received R156 792, 00 and the
second appellant R756 153, 00 over the period 1993 to 1999.
[2] The appellants were suspended from practice for five years but
the operation of the suspension was suspended for five years on
the
following conditions: (1) that they were not convicted of receiving
perverse incentives for a period of five years during the
period of
suspension; (2) that the amounts received were paid to the Health
Professions Council of South Africa (‘the Council’)
within a
specified period; (3) that they performed community service in any
public service hospital for two years, with the distinction
that the
first appellant was to serve only one day per week, and the second
appellant two days.
[3] The appellants appealed to the Disciplinary Appeal Committee
(i.e. an internal appeal in terms of the Act). The appeal succeeded
in part to the extent that the conviction was confirmed but the
period within which the appellants had to pay the Council was
extended
by a further six months to one year. In addition the second
appellant’s community service was reduced to one day per week.
[4] A further appeal to the Pretoria High Court in terms of s 20 of
the Act failed. The convictions of both appellants were confirmed
but
the penalties were amended to the extent that the condition requiring
them to do community service was expressed in hours rather
than days.
The High Court (Botha J, with Sithole AJ concurring) ordered that:
‘
1. The appeal against the finding
that the appellants were guilty of unprofessional conduct is
dismissed.
The appeal against the penalties is dismissed except
that the third condition of suspension is altered to read: “That
[the appellants]
perform community public service by practising
[their] profession in any public service hospital for 800 hours over
a period of
two years from this date”.
The respondents [i.e. the appellants] are to pay the
costs of the appeal, which will include the costs of two counsel.’
[5] The appeal to this court with leave of the High Court is confined
to the penalties. It turns primarily on whether the conditions
of
suspension of the penalties imposed by the Committee are competent or
ultra vires
the Act. A related issue raised by the appellants
is whether the imposition of the suspension of the appellants from
practice was
appropriate.
[6] It is convenient first to dispose of the latter issue. In this
regard the appellants argue that the penalty imposed upon them
was
too severe in the circumstances. They maintain that a suspension from
practice for a period of three or six months would have
been more
than adequate. I do not agree. Given the serious light in which the
offences were viewed by the Council, it cannot be said
that the
sentences imposed are unduly harsh or leave one with a sense of
shock. It has been said of various predecessors of the Council
that
each was the repository of power to make findings on what was ethical
and unethical in medical practice (
Meyer v SA Medical and Dental
Council
.
1
)
and the body
par excellence
to set the standard of honour to
which its members should conform (
De La Rouviere v SA Medical and
Dental Council
.
2
)
That is still so. When the Council says that particular professional
misconduct by a practitioner is serious its assertion must
be taken
to heart unless there are compelling reasons to the contrary. It is
not for the court to usurp the function of the professional
body in
its determination of what is or is not improper or disgraceful. I am
not persuaded that there is any reason to interfere
with the
Committee’s finding. In my judgment the penalty imposed was not
inappropriate and the appellants’ submission to the
contrary falls
to be rejected.
[7] I turn to the question whether the conditions of suspension
imposed upon the appellants are competent. It is necessary first
to
deal briefly with the penalty provisions in s 42(1) of the Act. The
sub-section reads:
Every person registered under this Act who, after an
inquiry held by the professional board, is found guilty of improper
or disgraceful
conduct, or conduct which, when regard is had to such
person’s profession, is improper or disgraceful, shall be liable
to one
or other of the following penalties –
a caution or a reprimand or a reprimand and a caution;
or
suspension for a specified period from practising or
performing acts specially pertaining to his profession; or
removal of his name from the register; or
a fine not exceeding R10 000; or
a compulsory period of professional service as may be
determined by the professional board; or
the payment of the costs of the proceedings or a
restitution.’
[8] The Committee which was empowered to impose the penalties in
terms of the above section is a creature of statute and derives
its
powers from the Act. It can only operate within the four corners of
the Act and exercise only those authorities and powers expressly
or
by necessary implication conferred upon it in terms of the Act. (See
Ndamase v Functions 4 All
;
3
Fedsure Life Assurance v Greater Johannesburg Transitional
Metropolitan Council
.
4
)
[9] As a starting point in the interpretation of a statute the words
used ought to be given their ordinary grammatical meaning having
due
regard to their context. Section 42(1) of the Act provides that upon
conviction for improper or disgraceful conduct a practitioner
shall
be liable for ‘one or other’ of the penalties, not ‘one or
more’ of the penalties therein specified. The word ‘or’
appears
immediately at the end of each penalty provision, leading one
irresistibly to the conclusion that the intention of the Legislature
was to empower the sentencing authority to impose any one of the
sentences but not a combination of one or more. The appellants,
quite
rightly in my view, argued that if the Legislature had intended to
provide otherwise it would have used language consistent
with such an
intention.
[10] There is no doubt that there are cases where the word ‘or’
has been read as ‘and’, but this occurs in cases where to
give
the word ‘or’ its natural meaning would give rise to an
interpretation that is unreasonable, inconsistent or unjust. (See
Gorman v Knight Central GM Co., Ltd
.
5
)
This is however not the case in the present matter. The penalties
prescribed by the section were clearly intended to be alternative
options available to the sentencing authority.
6
Moreover, as this judgment demonstrates, such an interpretation does
not render the Committee less effective in disciplining the
members
of the profession.
[11] Reading ‘or’ as ‘and’ has been described as a violent
expedient which ought not to be adopted, except in the last resort,
for the simple reason that ‘or’ does not mean ‘and’, and when
the Legislature uses ‘or’ it must prima facie at all events
be
taken to mean ‘or’ and not ‘and’ (
Colonial
Treasurer
v
Great Eastern Collieries Ltd
1904 TS 716
at 719). It has
been said:
‘ ‘
[O]r’ must always be
construed in its ordinary and proper sense as a disjunctive particle
signifying a substitution or an alternative,
unless the context shows
or furnishes very strong grounds for presuming that the Legislature
really intended the word
and
to be used. If to
use the word ‘or’ in its proper and grammatical sense would
strain the plain object of the Act, the Court will
presume … that
‘and’ was intended for ‘or’. But, … the Court must not
alter words in an Act of Parliament merely to give
it a meaning such
as it thinks those who framed it would have done, if the question had
presented itself to them.’
(See
S
v Pretorius
7
)
[12] In similar vein this Court in
Ngcobo v Salimba CC
8
(per Olivier JA) said:
‘
It is unfortunately true that the
words ‘and’ and ‘or’ are sometimes inaccurately used by the
Legislature and there are many
case in which one of them has been
held to be the equivalent of the other (see the remarks of Innes CJ
in
Barlin v
Licensing Court for the Cape
1924
AD 472
at 478). Although much depends on the context and the
subject-matter (
Barlin
at 478), it seems to me that
there must be compelling reasons why the words used by the
Legislature should be replaced;
in
casu
why
‘and’ should be read to mean ‘or’, or
vice
versa
. The words
should be given their ordinary meaning “. . . unless the context
shows or furnishes
very
strong grounds
for
presuming that the Legislature really intended” that the word not
used is the correct one (see Wessels J in
Gorman
v Knight Central GM Co Ltd
1911
TPD 597
at 610; my emphasis). Such grounds will include that if we
give ‘and’ or ‘or’ their natural meaning, the interpretation
of
the section under discussion will be
unreasonable
,
inconsistent
or
unjust
(see
Gorman
at 611) or that the result
will be
absurd
(
Greyling
and Erasmus (Pty) Ltd v Johannesburg Local Road Transportation Board
and Others
1982
(4) SA 427
at 444C-D) or, I would add,
unconstitutional
or
contrary
to the spirit
,
purport and objects
of the Bill of Rights
(s
39(2) of the 1996 Constitution).’
[13] It follows therefore that the Committee could select only one of
the penal options listed in paragraphs (e) to (f) of s 42(1)
and not
‘one or more’ or a combination of them.
[14] This brings me to the conditions for the suspension of the
penalty. Counsel for the appellants drew attention to the monetary
value of the professional services rendered by specialist
practitioners of their qualification and experience, which, when
calculated
at the then prevailing rate, amounted to between R800 and
R1200. On that basis, counsel submitted that the monetary equivalent
of
the total periods of community service imposed on the appellants
was grossly out of proportion to the largest monetary fine which
the
Committee was empowered to impose (R10 000, in terms of s 42(1) of
the Act). The penalty sections, he said, should be interpreted
in a
manner which rendered them consistent. Counsel also submitted that
the imposition of community service as a condition of suspension
was
simply an impermissible attempt to levy a fine under another guise.
So also was the order for payment to the Council of the amounts
received as kickbacks. Finally, in this regard, said counsel, the
imposition of community service and the order for payments were
duplications of penalties clothed as conditions of suspension; the
effect was that the Committee was in reality imposing three penalties
when it was empowered by s 42(1) to impose only one.
[15] All these submissions depend on the same fallacy, viz that the
conditions which may be imposed under s 43(1)(b) are limited
by the
terms of the penalty powers of the Council (s 42(1)). Counsel for the
respondent submitted that the purpose of conditions
of suspension is
to ameliorate the penalties. More correctly, I think, the purpose is
to provide a means of avoiding strict performance
of the penalty.
None of the available penalty options provided for in the section
standing alone would have constituted an appropriate
punishment. A
caution and discharge or a caution or reprimand was out of the
question, given the seriousness of the misconduct. So
also the
removal of the appellants from the roll or an outright suspension
from practice for five years, both of which would have
been too harsh
and totally against the weight of the evidence presented by the
respondents in mitigation. A fine would have been
too lenient. Such
was the dilemma in which the Committee found itself.
[16] In its present form s 43(1)(b) of the Act provides a clear-cut
solution. The section provides for the postponement or suspension
of
the operation of the penalty imposed under s 42(1) on conditions ‘as
may be determined by’ the Committee. It reads:
‘
(1)
Where a professional board
finds a person referred to in section 42(1) guilty of conduct
referred to therein, it may –
. . .
impose any penalty mentioned in paras (b), (c) or (d)
of section 42(1), but order the execution of such penalty or any
part of the
penalty to be suspended for such period and on such
conditions as may be determined by it.’
[17] Although there is no specific provision in the Act for the
imposition of a condition requiring an offending medical practitioner
to perform community service or to pay the amount of perverse
incentives received by him or her to the Council, these conditions
are ancillary to the power it had to impose the penalty provided for
in s 42.
[18] A condition of suspension cannot multiply penalities. What it
can do is to offer the affected person a choice to avoid the single
penalty laid down by the Committee by voluntarily adopting another
course of action, (see
R v Hendricks
;
9
R v Littlejohn
10
)
which in its totality may or may not include or exceed a prescribed
penalty. The imposition of a condition does not compel performance
with its terms; the affected person is perfectly free to submit
himself or herself to the penalty and ignore the conditions. Thus
a
power to lay down the conditions provides scope for creativity on the
part of the sentencing authority (without infringing on its
penalty
power). As the record shows, the Committee took full advantage of the
scope for creativity when deciding on the conditions.
[19] In the court below Botha J correctly referred to
R v
Fourie
11
to justify the conclusion that a condition of suspension may require
an accused to do something that would otherwise be outside the
jurisdiction of a court. The question in
R v Fourie
was
whether the court was limited in the amount of compensation it could
award to the complainant upon conviction of the accused.
The court
concluded that it was not. This is because it was empowered by the
relevant section to impose such conditions as ‘in
its discretion it
thinks suitable.’ (See
R v Fourie
at 470). The power to
impose conditions under s 43(1) is no less broad.
[20] For the above reasons I am of the view that the Committee did
not misdirect itself in any way in imposing the conditions it
did and
there is no basis to interfere with its finding.
[21] Accordingly the appeal is dismissed with costs.
______________________
KK MTHIYANE
JUDGE OF APPEAL
CONCUR:
HOWIE P
HEHER JA
MLAMBO JA
MAYA JA
1
1982
(4) SA 450
(T) at 455H).
2
1977
(1) SA 85
(N) 97E.
3
2004
(5) SA 602
(SCA) at 605G–606B.
4
[1998] ZACC 17
;
1999
(1) SA 374
(CC) paras 56 and 58.
5
1911
TPD 597
at 610.
6
This
intention is borne out by the original structure of s 42(1)(a), (b)
and (c) and the amendments made by Act 79 of 1990 and Act
89 of
1997.
7
1969
(1) SA 235
(T) at 237 F-G.
8
1999
(2) SA 1057
(SCA) at 1067J-1068B.
9
1915
CPD 821.
10
1946
TPD 161
at 168.
11
1947
(3) SA 468
C at 470.