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[2015] ZAGPPHC 5
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Basson v Hugo and Others (3113/15) [2015] ZAGPPHC 5 (23 January 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case Number: 3113/15
Date: 23 January
2015
In the matter
between:
WOUTER
BASSON
.........................................................................................................
Applicant
and
PROFESSOR J F N
HUGO
................................................................................
First
Respondent
PROFESSOR R E
MHLANGA
......................................................................
Second
Respondent
HEALTH
PROFESSIONS COUNCIL OF SOUTH AFRICA
….................
Third
Respondent
JUDGMENT
BAM J
(Applicant
represented by Adv J G Cilliers SC and Adv MMW van Zyl SC;
Respondents represented by Adv T Motau SC and Adv L Kutumela.)
1. This matter came
before me on 22 January 2014 in the urgent court. Due to time
constraints, I had to deal with more than 20 other
urgent
applications within 4 days, my judgment is not as comprehensive as I
would have preferred it to be.
2. The applicant is
the subject of a disciplinary enquiry conducted by a committee of
third respondent. First respondent is chairman
and second respondent
a member of the committee. The disciplinary hearing commenced several
years ago and after the applicant had
been found guilty on several
charges against him, the proceedings have now reached the stage of
sentencing.
3.
On 19 January 2015 the applicant, on an urgent basis, was granted an
order interdicting the respondent from proceeding with the
hearing
pending the finalisation of an application to compel first and second
respondents to provide applicant with information
relating to first
and second respondent's membership to any of the organisations that
endorsed the petition suggesting,
inter
alia,
very
severe penalties and other administrative action, including his
striking from the roll as medical practitioner, handed in as
Exhibit
GG5 at the hearing on 26 November 2014, apparently pending a possible
recusal application against the first and second
respondents. The
application is opposed by the respondents.
4. This court is not
burdened with either the merits of the matter or any evidence
pertaining to a possible sentence. It is however
important to remark
that the offences the applicant was convicted of are of a very
serious nature and the sentences to be imposed
may have devastating
consequences.
5. The main issue in
this matter, the possible recusal of the first and second
respondents, turns upon the principle of a fair trial
provided for in
the Constitution. This is however not what the application before
this court is about. What the applicant actually
had been seeking at
this stage is information of the first and second respondent's
involvement, if any, in the petition, Exhibit
GG5, pending a possible
application for the recusal of the first and second respondents.
6.
What prompted the applicant to lodge this application was the
following. In his founding affidavit the applicant alleged that
one
of the petitioners that endorsed the petition, Exhibit GG5, was an
organisation called
South
African Medical Association, ("SAMA").
The
said petition, according to the applicant,
“
...strongly
agitated for the most serious penalty to be imposed and for my
removal from the Roll of Medical Practitioners as sentence
in the
proceedings."
The
applicant further stated that it had come to his attention that first
applicant may be a member of
SAMA.
The
applicant said he was unable to determine whether that was in fact
the position in that
SAMA
refused
to disclose information about its members. At the commencement of the
proceedings on 19 January 2015 counsel appearing for
the applicant
raised the issue with first respondent, asking first respondent
whether he was indeed a member of
SAMA.
This
was admitted in open court by first respondent. Upon a further
question by applicant's counsel whether first respondent was
a member
of any of the other organisations that signed the said petition first
respondent said he had to peruse the list consisting
of approximately
30 organisations. First and second respondents were then requested to
do so. Subsequently however the first and
second respondents ruled
that the applicant was not entitled to the requested information and
ruled that the matter should proceed,
and ruled further that the
applicant was not entitled to have the matter stood down to consider
his options. The hearing proceeded
after the applicant and counsel
had left to lodge the interim application.
7.
After the granting of the interim order, the applicant served a
supplementary affidavit on the respondent' attorney. The third
respondent filed an answering affidavit to which confirmatory
affidavits of the first and second respondents are attached. It is
confirmed by the first respondent that he is a member of
SAMA
and
another organisation,
Rural
Doctors Association of South Africa, "RUDASA",
that
signed
"and/or"
supported
the petition, Exhibit GG5. The first respondent proceeded to explain
his situation and said the following:
"I did not
participate in the processes related to the compilation of any of the
petitions in issue. I also did not sign any
of them. The reason
thereof is simple. I could not allow myself to be influenced by
and/or to participate in processes relevant
to the issues to be
determined in the proceedings, which were occurring outside the
hearing."
The first respondent
did not elaborate whether he was aware of the contents of the
petition before it was admitted as an exhibit.
8. The second
respondent did not say anything about membership of any of the
organisations involved in the signing of the petition
save to confirm
the statement of the first respondent who mentioned that second
respondent advised him that he is not a member
of any of the
organisations in question, that he did not partake in any process
relating to the petitions and that he did not sign
the petitions.
9. It was contended
by the respondents that the applicant's supplementary affidavit
should not be allowed in that the applicant
was in law bound to set
out his case in his founding affidavit. One of the arguments was that
the applicant, in his supplementary
affidavit now relied on his
Constitutional rights to affair trial, which was not the basis of his
application as set out in his
founding affidavit.
The applicant's
supplementary affidavit elaborates to some extent on the information
that was before Baqwa J when he granted the
initial order on an
urgent basis. The respondents' contention that the supplementary
affidavit should not be allowed has no merit.
This is not a matter
where the applicant in a replying affidavit endeavoured to strengthen
his case. The applicant was in any event
entitled, at all relevant
times to rely on his Constitutional rights to a fair trial and to
lodge this type of urgent application
at any time, even during the
trial. The argument that the applicant was obliged to wait until the
case had been disposed of and
then to exercise his remedies, on the
basis that a Court should not deal with a matter piece meal is
totally misplaced.
10.
On behalf of the respondents it was also submitted that the
application is not urgent. The applicant was furnished with a copy
of
the petition already on 26 November 2014 but waited until 19 January
2015 to raise his concerns. I do not intend to dwell on
this issue.
It suffices to say that in my view the application is indeed urgent.
It involves the Constitutional rights of the applicant
important
information pertaining to whether he could expect to experience a
fair trial. In the event of a court finding that the
allegations of
the applicant should be upheld, it is clear that a continuance of the
hearing will not be in the interests of justice
and may cause the
applicant severe and irreparable harm. This is a very serious matter.
Our justice system, governed by the supreme
law, our Constitution,
can never allow a possible miscarriage of justice to proceed. Any
litigant will therefore be entitled, if
there are
primo
facie
grounds
to suspect that a presiding officer in any trial, or enquiry like the
one in hand, may be biased or that his or her mind
set could have
been contaminated by any aspect outside the proceedings, to approach
the court for the appropriate relieve. The
argument advanced on
behalf of the respondents that the applicant had other remedies and
that he was obliged to follow the procedure
in terms of the
provisions of PAJA should, in my view, be rejected out of hand. The
applicant was faced with a situation that the
remedy to approach this
court on an urgent basis was absolutely appropriate and justified in
law. To this extent I have no hesitation
to find that the first and
second respondents were wrong in refusing to furnish the applicant
with the relevant information in
respect of their possible
involvement with the organisations who signed the petition. In view
of the contents of the petition and
the first respondent's relation
to SAMA I am satisfied that both first and second respondent were
obliged to furnish a proper explanation
of their possible involvement
and/ or knowledge of the petition. Their refusal to do so was not
justified and irregular. The applicant,
therefore, had sufficient
grounds meriting the application and indeed justified to approach
this court on an urgent basis.
11.
It is contended by third respondent that the applicant, instead of
lodging this application, could have lodged the recusal application
based on the admission of the first respondent. The third respondent
questioned the relevancy of the information sought in respect
of
whether first respondent was also a member of any of the other
organisations that signed the petition. In regards to second
respondent it is pointed out by third respondent that applicant had
no evidence linking him to any of the relevant organisations.
It was
further submitted by third respondent that what is fatal to the
applicant's case is that he failed to make out any case
that either
the first or second respondents, or both,
"partook
in any process related to the compilation of the petitions."
12. Although this
argument does have some merit, I could find no reason to criticise
the applicant's process to investigate whether
the first and second
respondents were not also involved in other organisations which had
supported the petition. In my view it
is really relevant to establish
what the possible extent of any extra curial influence on the first
and second respondents, if
any, could have been.
13.
The criticism levelled at the way counsel for the applicant dealt
with the problem by confronting the first respondent directly
in open
court with the issue of his possible involvement and knowledge of the
petition, may, arguably, be frowned upon. However,
the first
respondent, in his capacity as chairman, with the aid of his legal
advisor in the form of the eminent retired Honourable
Judge
President, Mr Justice Eloff, could have made a ruling that counsel
should either raise the aspect in chambers or
in
camera,
before
formally recording the issue. Be that as it may, in issue came to the
forth and the relevant aspects were recorded. It remains
a factual
situation.
14. An application
or an order that the presiding officer should recuse is a very
serious matter. Not only will an order in this
regard materially
affect the proceedings but it will surely have a devastating effect
on the officer(s) in question. In matters
of this nature our law
requires that there should be a real apprehension of bias and not a
mere suspicion in that regard.
15.
Although this court is not called upon to adjudicate a recusal
application, it must take into account what test is to be applied
in
that type of applications and whether the applicant's possible
application for recusal is not frivolous and a mere waste of
time. In
the case of
President
of the Republic of South Africa and Others v South African Football
Union and Others
1999(7j
BCLR 725, commonly known as the SARFU case, it was emphasised that
the test is objective. It was stated as follows in par[48]:
"The
question is whether a reasonable, objective and informed person would
on the correct facts reasonably apprehend that the
Judge has not or
will not bring an impartial mind to bear on the adjudication of the
case, that is an open mind to persuasion by
the evidence and
submissions by counsel."
16. In view the
seriousness of this type of situation, I am satisfied that the
applicant was entitled to the information sought
from the first and
second respondents and that the respondents were in the circumstances
not justified to refuse same. Any person
involved in trials or
enquiries of this nature are fundamentally entitled to a fair trial.
The contention on behalf of the respondents
that the applicant had
other remedies, eg. In terms of PAJA or to have waited until the
conclusion of the proceedings, is without
substance and does not need
any discussion.
17. I have therefore
arrived at the conclusion that it cannot be said that the application
is frivolous, or merely part of delaying
tactics, as suggested by the
respondents. The applicant was justified to bring this application.
18. It has been
indicated by the applicant's representatives that the first and
second respondents have now furnished the required
information, as
referred to in paragraph 2 of the Notice of Motion. Accordingly it is
not necessary to make any order in that regard.
19. What remains is
the issue of a possible future application for recusal of the first
and second respondents and costs.
20. The first and
second respondents' ruling in refusing the applicant the opportunity
to consider to bring an application for their
recusal, as alluded to
above, was wrong. This concerns the contents of prayer 3 of the
Notice of Motion and the proposed prayer
3 in the applicant's Heads
of Argument. The proposed order is clearly in conformity with the
accepted facts and prayer 3 of the
Notice of Motion. However, in my
view an order granting the applicant the opportunity to lodge an
application or the recusal of
the first and second respondents within
a limited time will have the required effect. This order will
effectively stop the proceedings
pending the lodging of the recusal
application within the time specified.
21. In respect of
costs, I have already indicated that I am satisfied that the
applicant was justified to approach this Court on
an urgent basis.
Taking into consideration that the first and second respondents acted
upon legal advice, I am not prepared to
grant a cost order against
them, more so because they were cited in their personal capacity.
ORDER:
1. The applicant is
granted the right to institute the application for the recusal for
the first and second respondents, if he is
inclined to do so, within
10 days of this order.
2. The third
respondent is ordered to pay the applicant's costs, the one paying
the other to be absolved. The costs to include the
costs of 2
counsel.
A J BAM
JUDGE OF THE HIGH
COURT
23 January 2015