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[2016] ZAGPPHC 379
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S v H and Others (2267/2015) [2016] ZAGPPHC 379 (15 April 2016)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
NORTH GAUTENG DIVISION,
PRETORIA
CASE
NUMBER:2267/2015
DATE:
22 APRIL 2016
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the
matter between
DR W
S
Applicant
and
PROFESSOR
J
F N H
1
nd
Respondent
PROFESSOR
R E M
2
nd
Respondent
H
P
C OF
SOUTH
AFRICA
3
rd
Respondent
JUDGMENT
UNTERHALTER
AJ
INTRODUCTION
1.The Applicant, Dr W B, is a qualified medical practitioner,
practising as a cardiologist in D in the Western Cape. In 2007, the
Health Professions Council of South Africa ("The Council")
brought charges against Dr B, alleging that Dr S had engaged
in
unprofessional conduct. The conduct in question concerned Dr B
participation in chemical and biological warfare research whilst
in
the employ of the South African Defence Force in the 1980s.
2.In terms of the Health Professions Act 56 of 1974 ("the Act"),
The Council is established. On the recommendation of
The Council, the
Minister of Health is required, in terms of Section 15, to establish
a professional board with regard to any health
profession. Among the
powers given to professional boards is the power to institute an
inquiry into any complaint, charge or allegation
concerning the
professional conduct of any person registered under the Act. (Section
41 (1)) The Act then provides for the procedures
to be followed when
a professional board undertakes an inquiry and the sanctions that may
be applied to a person found guilty of
improper or disgraceful
conduct. (Sections 42 and 43). The Minister of Health has promulgated
regulations concerning the conduct
of inquiries into alleged
unprofessional conduct. ("The regulations", No R765
published in the Government Gazette of
24 August 2001).
3. The relevant
professional board appoints a professional conduct committee
toconduct the inquiry. A professional conduct committee
("the
committee") was appointed to inquire into the charges of
professional misconduct against Dr B. The committee is
constituted by
Professor J F N H, a professor of family medicine, practicing at the
University of Pretoria and Professor R E M,
a professor of
obstetrics, practicing at the Nelson R M School of Medicine at The
University of K Z N. Professors H and M are cited
as the First and
Second Respondents in these proceedings.
On 18 December 2013, the committee found Dr S guilty of professional
misconduct on a number of charges levelled against him.
After some
delay, the committee proceeded to consider the evidence concerning
the penalty that might be imposed upon Dr S. The
proceedings resumed
in late November 2014, and were continued in January 2015.
5. Upon the resumption of proceedings on 26 November 2014, the
pro-forma prosecutor called Mr H as a witness. Mr H came to testify
on behalf of a number of civil society organisations. Mr H' s
evidence sought to persuade the committee that Dr B should be removed
from the Register of Medical Practitioners ("the register").
In the course of his evidence, Mr H submitted petitions
that set out
the basis upon which a large number of civil society organisations
urge that Dr S be struck off. The petitions frame
the issue as
follows:
"We
now
call
upon
the HPCSA
to strike
Dr B
off the
Medical
Register because
his
actions
and
his
denials
of
wrongdoing
after
the
hearing
demonstrate that
he
has
no
remorse
and
lacks an
understanding of
right and
wrong. It
is
high
time
that
apartheid's
agents
who
thought
they
could act
with impunity,
account
for their complete
disregard
of human
right in the norms
of
our
South African
democracy".
6.The petitions reference a number of organisations that endorse the
campaign for Dr B's striking. Important for the purposes of
this
application is the fact that the (SAMA) and an organisation
called (RUDASA) are listed as organisations that have endorsed
the
campaign.
7. Upon the continuation of proceedings on 19 January 2015, Dr B's
counsel raised with the Chairman of the committee, Professor
H, that
counsel had received information that Professor H was a member of one
of the organisations that had signed the petitions.
As the relevant
passages of the record reflect, Professor H acknowledged that he had
been a member of SAMA ever since he commenced
practice. Counsel for
Dr S referred Professor H to the list of organisations supporting the
petitions, and sought confirmation
as to whether Professor Hugo or
Professor M were members of one or more of the organisations
supporting the petitions.
Professor H was however advised by Mr J E, the now retired Judge
President of this Court, appointed as the legal assessor to
the
committee, that these interrogatories should not be responded to;
and that if an application for recusal was to be brought,
it should
be moved at a proper time and place. Professor H then directed that
the matter should proceed to the hearing of further
evidence.
9. What then occurred, in brief, was that Dr S brought an
application to the High Court so as to procure the information
requested
from the members of the committee. By the time the
application came before Mr J B, Professors H and M had furnished the
required
information to Dr S, and an order issued from this Court
granting Dr B the right to bring an application for the recusal of
Professors
H and M.
10. Mr J B found that Dr S was entitled to the information sought and
was entitled to an opportunity to bring an application for
the
recusal of Professors H and M.
11. An application was then made to the committee seeking the recusal
of Professors H and M. Professor' s H recusal was sought
on the basis
that he was automatically disqualified, having an interest in the
subject matter of the proceedings. Both members
of the committee
were, in addition, asked to recuse themselves because they were in
fact biased towards Dr S, alternatively Dr
S entertained a reasonable
apprehension that Professors H and M are or might be biased towards
him. The recusal application was
heard on 13 March 2015, and after
argument, the application was dismissed. Professor H gave a ruling on
13 March 2015 that Dr S
had failed to discharge the onus resting on
him to "support his claim of recusation." The ruling
contains the reasons
relied upon by the committee as to why the
recusal of its members was not warranted.
12.Dr S now approaches this Court seeking to review and set aside the
refusal by Professors Hugo and Mhlanga to recuse themselves.
Dr S
also seeks an order that Professors H and M
are to recuse themselves from the disciplinary proceedings
against him.
13. As the matter is put in the founding affidavit, the grounds
advanced before the committee for the recusal of Professors H and
M
are also the basis upon which the review is brought to this Court.
The first ground of review is predicated upon the position
of
Professor H. Professor H is a member of
SAMA
and is associated
with
RUDASA.
By
reason
of the
position taken
by these
two organisations in
support
of
the
petition
for
the
removal
of
Dr
S
from
the register,
it
is
contended
that
SAMA
and
RUDASA
are
parties
in the
disciplinary proceedings
and Professor
H thereby
became a judge
in his own cause.
It is also said that the
First Respondent's failure
to disclose his involvement with these organisations
and his
failure to disassociate
himself
from the position of Mr H
(supported by SAMA) rendered the position of Professor H
untenable. The second
basis of the application rests upon a number of decisions taken by
the committee that are said by Dr S
to give rise
to bias
on
the part of
the committee or a
reasonable apprehension
of
bias .
PREMATURITY
14.
It
was evident to
Dr
S,
as
foreshadowed
in
his founding
affidavit,
that some justification
was
required
to
persuade
this
Court
to entertain
a
review
prior
to the completion of the disciplinary
proceedings.
It is contended on behalf of Dr B that
the
courts
are
ordinarily
opposed
to
the
hearing
of
appeals
and
reviews
in
a piecemeal fashion, though exceptions in special circumstances
are
permitted. It is said that
this
is
such
a
case.
It
is submitted,
further,
that
neither
the Act
nor
the regulations provide for an internal remedy. But if such remedy
exists, then
this
Court
s
hould exempt
Dr S from his obligation to exhaust this internal remedy.
15. As Dr B anticipated in his Founding Affidavit, the Council raises
the following preliminary issues. First, Dr S should not
be permitted
to bring a review to the High Court prior to the completion of the
inquiry. A review brought prior to the completion
of proceedings and
by way of piecemeal litigation is inconvenient and undesirable.
Rather, so it was said, the committee should
be permitted to complete
its work, render a decision and then give Dr B, should he wish to do
so, the opportunity to pursue an
appeal under the Act. Second, Dr S
was required to exhaust the internal remedy of appeal under the Act
before approaching the High
Court. Third, there are no exceptional
circumstances that should permit Dr B to have recourse to the High
Court, before exhausting
his internal remedy.
16.The preliminary objections of the Council raise issues of
prematurity. The objection based upon piecemeal adjudication is
predicated
upon convenience. Many types of irregularity may occur in
proceedings before an administrative body charged with adjudicative
functions.
The general principle is that an appeal or review should
await the final disposition of the matter on the merits because the
determination
of the merits may render an appeal or review
unnecessary or insufficiently material to render the ultimate
decision unsound. Even
if the decision on the merits leaves a party
dissatisfied with the result, it will generally be desirable for an
appeal to be heard
and determined on all the issues, and within the
relevant hierarchy of decision-making.
17.It is common ground
between the Council and Dr S that piecemeal adjudication is generally
undesirable, but that there are exceptions
to this rule. The parties
differ as to whether this is such a case.
18.The preliminary point taken by the Council concerning the duty to
exhaust any internal remedy stands on a different footing.
This is a
matter of statutory preclusion. Section 7 (2) of PAJA provides that
no court shall review an administrative action in
terms of PAJA
unless any internal remedy provided for in any other law has first
been exhausted. The scheme of Section 7 (2) is
that the Court cannot
entertain a review where an internal remedy available to a litigant
has not first been exhausted and, in
these circumstances, the Court
is required to direct the person concerned first to exhaust their
internal remedy before instituting
proceedings in the courts for
judicial review. Thus, an applicant for judicial review has a duty
first to exhaust any internal
remedy available. A person who fails in
this duty comes to court prematurely. Their right to review is not
excluded, but necessarily
deferred. In terms of Section 7(2)(c) of
PAJA, the duty to exhaust any internal remedy is subject to exemption
by a court, upon
the showing of exceptional circumstances by the
person burdened with the duty.
INTERNAL
REMEDY
19 I consider first the exhaustion of remedy objection. This raises
the following issues. Did Dr S have a duty to exhaust any internal
remedy? If so, has he complied with such duty? And if not, whether
this court exempts him from complying with his duty upon a showing
by
Dr S of exceptional circumstances, and upon a consideration of the
interests of justice by this Court.20. Section 10 (2)
of the Act
requires that the Council shall establish
ad
hoc
appeal committees. The
ad
hoc
appeal
committee consists of a chairperson, with knowledge of the law and at
least 10 years' experience, together with not more
than two
registered persons drawn from the profession of the person that is
subject to inquiry, and a member of the council appointed
to
represent the community. The
ad
hoc
appeal committee enjoys the power to vary, confirm or
set aside a finding of a professional conduct committee established
in terms
of Section 15 (5)
(f)
of the Act or to refer a matter back to such
professional conduct committee. (Section 10
(3) of the Act.).
21. Under regulation 8 of the regulations, the accused or pro-forma
complainant may appeal against the finding and or penalty of
the
professional conduct committee to the appeal committee. The appeal
committee is defined in regulation 1 to mean a committee
established
by a professional board under Section 10 (2) of the Act for the
purposes of conducting an appeal against the finding
of an inquiry
conducted by a professional board or committee established for such
purpose. An accused is defined under the regulations
to mean a person
registered under the Act whose conduct is the subject of an inquiry
under chapter IV of the Act and the regulations.
Chapter IV is the
chapter in terms of which persons registered under the Act may be
charged and subject to inquiry for unprofessional
conduct.
22. In terms of section 20 (1) of the Act any person who is aggrieved
by any decision of the Council, a professional board or a
disciplinary appeal committee may appeal to the appropriate High
Court against such a decision.
23.Section 42 (1)
stipulates for the penalties to which a person found guilty of
improper or disgraceful conduct may be liable.
Such penalties include
suspension from practice and, in a more severe case, removal from the
register. Section 42 (1 A) of the
Act provides that if an appeal is
lodged against a penalty of erasure or suspension from practice, such
penalty shall remain effective
until the appeal is finalised. The
word "erasure" refers to removal from the register.
24.The central question that arises is whether Dr S may appeal the
refusal by the committee to uphold his application for the recusal
of
Professors H and M to an
ad
hoc
appeal committee established in terms of section 10
(2) of the Act
?
25.Dr S made a formal application to the committee, supported by an
affidavit deposed to by Dr S in which application Dr S sought
the
recusal of Professors H and M. The grounds relied upon by Dr S for
this recusal application are substantially the same as the
basis upon
which the review is brought to this Court.
26.The powers vesting in an appeal committee constituted in terms of
section 10 of the Act, as indicated, reference "a finding
of a
professional conduct committee". An appeal committee is given
the power to vary, confirm or set aside a finding or to
refer the
matter back to the professional conduct committee. This formulation
of powers of an appellate administrative body is
to be found in many
statutes. The formulation however does not resolve certain perennial
questions of statutory interpretation.
First, does the appellate body
enjoy review powers as well as an appellate jurisdiction? Second,
does the appellate body entertain
appeals in the wide sense referred
to in
Tickly v Johannes NO
1963 2 SA 588
(T)
at 590F-591 A,
or
is the appeal an ordinary appeal, limited to the evidence and record
upon whichthe decision was rendered?
27. These matters often occasion considerable difficulty where, as
here, the legislature has not expressly stated the scope of
appellate
jurisdiction. In my view, these interpretational intricacies can be
avoided in this case.
28.Even if I assume in favour of Dr S that the appeal committee does
not enjoy review powers and no appeal jurisdiction in the
wide sense
lies to the appeal committee, that does not mean that the appeal
committee does not enjoy a jurisdiction to consider
an appeal in
respect of the committee's decision to dismiss Dr B's recusal
application. The recusal application was made by way
of formal
application. The facts and law relied upon in support of the
application served before the committee. (see the Notice
of
Application and Dr B's supporting affidavit, Annexure 8 to the
founding affidavit). The application before the committee is
not as
fully articulated as the review before this court. But all the
essential averments are made in support of the recusal. The
appeal
committee would also be assisted
by
the full record of the proceedings before the committee by
reference to which most of the grounds upon which reliance is placed
may more fully be appreciated.
29. In these circumstances, the appeal committee may consider the
merits of the recusal application and the ultimate finding of
the
committee to refuse the application. If the committee came to an
incorrect finding and should have found that Professors H
and M could
no longer serve on the committee, then in my view the appeal
committee enjoys the power to set aside the finding of
the committee
and correct it. The ruling of the committee dismissing the recussal
application is a finding of the committee. An
appeal committee is
terms of Section10(3)
of
the
Act is given appellate powers in respect of a finding of a
professional conduct committee. The committee's ruling is such a
finding.
30.This is not a case in which there are irregularities that do not
appear from the record and were not advanced as the basis upon
which
the recusal of Professors H and M was sought before the committee. On
the contrary, the premise of the review before this
court is
expressly stated to be as follows:
"/
will now provide
the Honourable
Court with an
exposition
of the grounds that was argued on my behalf for the recusa/ of
the respondents,
which also
forms
the basis
of this
application."
31. The recusal application was argued before the committee,
considered by it, and a decision rendered on the merits. The
correctness
of the committee's finding on the recusal may be
considered by the appeal committee. No power of review is required to
do so because
the question is not whether the committee's finding is
lawful but whether it is correct. So too, the appeal committee does
not
need to decide the recusal application
de
nova
in order to decide whether the finding of the
committee was correct. No wide appeal is implicated in order to
determine the merits
of the recusal finding.
32.It follows that in my view Dr B is afforded a meaningful right of
appeal under the Act to have the correctness of recusal finding
considered once more. The appeal committee includes a person of
considerable legal experience, as well as persons drawn from Dr
B's
profession. There is no reason to think that such an appellate body
will not give fair consideration to an appeal brought
by
Dr S.33. In the result I find that Dr S does enjoy an internal
remedy of appeal under the Act. It follows that he is under a duty
to
exhaust this remedy in terms of Section 7 of PAJA, unless exempted
from doing so. And it is common ground that Dr S has not
pursued an
internal appeal because he chose rather to approach this court on
review. Accordingly, Dr B has not discharged his duty
to exhaust his
remedy of appeal before initiating review proceedings.
34. The question that then arises is whether he should be exempted
from his duty. This requires a showing of exceptional circumstances
and a consideration of the interests of justice. And it is to these
matters that I now turn.
The Constitutional Court in
Koyabe
&
Others
v Minister of
Home Affairs
&
Others
2010
(4) SA
327
(CC)
stressed that
the duty to exhaust internal remedies is a valuable requirement of
our law but should not be used to shield administrators
from
judicial scrutiny, nor should the duty be rigidly imposed.
Exceptional circumstances should be considered on the facts of
each
case. The Constitutional Court stressed that consideration must be
given to the administrative action in issue and whether
the internal
remedy would be effective.
EXEMPTION
36. Dr B's founding affidavit sets out a number of weighty
considerations that he says constitute exceptional circumstances and
should persuade this court to entertain his review in the interests
of justice. I have carefully considered these matters. Among
the
factors relied upon, three overarching considerations are relied
upon.First, it is said that the Act and regulations render
any
decision of thecommittee (more particularly any penalty of
suspension or erasure) of immediate effect, even if an appeal
is
noted to the appeal committee. And an appeal from the appeal
committee to the High Court is likewise brought into effect,
pending
the appeal. Second, if a penalty of suspension or erasure was to
issue from the committee or the appeal committee and
was rendered
effective by operation of law, this would cause irreparable harm to
Dr B's large practice and the many patients
that it serves. Third,
Dr S points out that the penalty decision which could have such
drastic consequences for him would be
taken by persons who, it might
be determined, should have recused themselves, and consequently he
will suffer the exercise of
drastic powers by persons whose
decisions are ultimately found to be a nullity.
37.These are matters of substance that require the most careful
consideration. In
m
y
view, however, the case for exceptional circumstances
and the interests of justice faces a formidable hurdle. The
legislature has
determined a statutory scheme under the Act that
provides for two appeals: one to the appeal committee (the internal
appeal) and
the second to the High Court. But the legislature has
also determined what regime is to apply, pending appeal. The regime
is for
the enforcement of decisions, pending appeal. This may work
harshly upon a professional person who may suffer a penalty
destructive
of his professional life, and yet be vindicated on
appeal. Yet that is what the legislature has determined, and no
constitutional
challenge is brought to this regime. The legislature
has determined a balance of interests. Rights of appeal are
recognised. But
a finding of serious misconduct also triggers the
need to protect the public. So too does a penalty imposed
pending
appeal
work
harshly
upon
the
professional
who
must
suffer
the
punishment.
The balance
struck
is to
provide
rights
of
appeal,
but
to
require
enforcement,
pending the exercise
of the
right.
38.
The
harm that may be done to
a person under this statutory scheme who
wishes to exercise
his
right
of
appeal
is somewhat
mitigated
by the
provisions
of Section
10
(4)
and
(5)
which
permit
a
professional
conduct
committee
or
appeal
committee
to determine
when
its decisions
shall
be of force
and effect.
Section 42
(1
A)
determines
that a
penalty
shall remain effective
until the
appeal
is finalised
but this provision does
not determine the date
from which the
penalty
shall take effect. That remains
within
the
discretionary power
of
the
professional
conduct
committee
or appeal
committee.
39.
These
prov1s1ons
permit Dr S,
should he ultimately
suffer
a
penalty of
suspension
or erasure, to persuade
the committee
or,
in turn, the appeal committee that the penalty
should
not commence
until his appeals or
review have been determined.
40.
In these
circumstances,
I do not consider
that there are
exceptional
circumstances, nor
that
the
interests
of justice
require
exemption.
First,
the
committee
has yet
to decide
upon the penalty. The
penalty may turn out to be one that does
not occasion the
kind
of
harm
that
Dr
S
apprehends
should
he
nevertheless
exercise
his right to appeal the
recusal decision. A reprimand would
not occasion him
irreparable harm
pending
an
appeal. Second, I
have
found that Dr
S
does
enjoy an effective
internal
remedy
by way
of an appeal
in respect of the
committee's
recusal
decision. The
Act
also
permits
Dr
S
to
appeal
to
the High
Court
from
an
adverse
decision of an appeal committee, rendering the review before this
court redundant. Third, it is clear from the recusal application
before the committee and the review before this court that Dr B has
many complaints as to the manner in which the committee has
conducted
the hearing. These complaints and any appeal he may ultimately wish
to bring on the merits of the findings of misconduct
and penalty
should all be heard together. In accordance with the recognised
principle, a consideration of all the issues in one
appellate hearing
would bring order and convenience to the matter. This is an
application of the principles explained by our courts
in
Take
and Save Trading
CC
v
Standard Bank of SA Ltd
2004 (4) SA 1
(SCA)
at para
[4} and
SACCAWU
v
Irvin
and Johnson
Limited
[2000] ZACC 10
;
2000
(3) SA
705
(CC) at paras
[4] and [5], and I see no reason to deviate from these
principles in this case.
41. Finally, deferring a review at this stage does not shield
Professors H and M from scrutiny. On the contrary, their decision
on
the recusal application may be considered by an appeal committee, and
if Dr B remains dissatisfied, he then enjoys a right of
appeal to
this Court. That he is subject to the regime of the Act pending an
appeal does not disclose an exceptional circumstance.
It is not for
this Court to reorder the way in which the legislature has struck the
balance of interests to which I have made reference.
It does not seem
to me to be an exceptional circumstance that the regime determined by
the legislature may work harshly upon a
professional penalised under
the Act. Such harm forms part of the scheme of the Act that the
legislature has determined. Once I
have found, as I have, that the
appeal process can provide effective redress to Dr B in respect of
his recusal challenge, on its
merits, I cannot find that his case is
exceptional becausethe penalty of suspension or removal, should it be
imposed, may come
into effect pending any appeal. That is what the
legislature has ordained.
42. Accordingly,
I
find that Dr B's review to
this court is premature and may not be entertained until such time as
he has exhausted his internal remedy
of appeal. Dr S must, if he
wishes to challenge the recusal decision, bring his appeal under the
Act to an appeal committee.
43.This finding renders it unnecessary for me to decide
the second preliminary objection raised by the Council concerning
piecemeal adjudication. Indeed, this issue is now one for the
committee to determine as to whether it should permit Dr S to appeal
the recusal decision to the appeal committee before the proceedings
have been completed before the committee and a penalty decision
rendered by it.
In the result, I make the
following order:
1. The
application is dismissed with costs, the costs to include the costs
of two counsel.
2. Dr S is
directed to exhaust his remedy of appeal before an appeal committee
in terms of the Health Professions
Act 56 of 1974, should
he wish to do so.
Unterhalter AJ
15 April 2016
For Dr W S
J G Cilliers SC M M W Van Zyl
SC
Instructed by Geyser
&
Coetzee Attorneys
For H P C of South Africa
&
Others
S Joubert SC
Instructed by Gildenhuys
Malatji At
Heard:16 Feb
Judgment:
15 April
2016