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[2015] ZAGPPHC 318
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Bader v SA Council for Social Services Professions and Another (56790/2013) [2015] ZAGPPHC 318 (20 February 2015)
I
N
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 56790/2013
DATE:
20 February 2015
Not
reportable
Not
of interest to other judges
In
the matter between:
BRIAN
BADER
…...............................................................................................................
Applicant
and
SA
COUNCIL FOR SOCIAL SERVICE
PROFESSIONS
…....................................................................................................
First
Respondent
LEONIE
HENIG
….............................................................................................
Second
Respondent
JUDGMENT
DAVIS,
AJ
NATURE
OF RELIEF SOUGHT:
[1]
This is a review application in terms of which the Applicant seeks
the following relief:
“
1.
In terms of the provisions of Section 6 of the Promotion of
Administrative Justice Act, No. 3 of 2000 (“PAJA”),
reviewing and correcting and/or setting aside the decision by:
1.1
The First Respondent not to cancel the registration of the Second
Respondent to practise as a social worker in terms of Section
22(1)(c) of the Social Service Professions Act, Act No. 110 of 1978
(“SSPA”);
alternatively
1.2
The First Respondent’s Committee for Preliminary Inquiry
(“CPI”) on 22 November 2012 to uphold the decision
of the
First Respondent’s Registrar’s Committee on Professional
Conduct (“RCPC”) and not to refer the Applicant’s
complaint against the Second Respondent for a disciplinary inquiry,
alternatively
1.3
The First Respondent’s Registrar’s Committee on
Professional Conduct (“RCPC”) ON 16 May 2012 not to
refer
the complaint against the Second Respondent for a disciplinary
inquiry.
2
In
terms of the provisions of Section 8(1)(c)(ii)(aa) of PAJA
substituting the decision of:
2.1
The First Respondent with the following:
‘
The
registration of Leonie Henig to practise as a social worker is
cancelled pursuant to the provisions of Section 22(1)(c) of the
Social Service Professions Act, Act No. 110 of 1978.’
alternatively
2.2
The First Respondent’s CPI with the following:
‘
The
decision of the RCPC meeting held on 16 May 2012 is set aside and
replaced with the following:
In
terms of Regulation 7(5) of the Regulations regarding the conducting
of inquiries into alleged unprofessional conduct, R917 published
on
27 June 2003 in GG No. 25109, the complaint against Leonie Henig is
referred for a disciplinary inquiry in terms of Regulation
16.’
alternatively
2.3
The First Respondent’s RCPC on 16 May 2012 with the following:
‘
The
complaint against Leonie Henig is referred for a disciplinary
enquiry.’
”
Costs
are also claimed in the event of the application being opposed.
[2]
In order to understand how the decisions complained of came about, it
is necessary to set out the roles of the different parties:
2.1
The Applicant is the father of two minor children, Joss Bader born on
12 August 2002 from a marriage with Jill Mundell Bader
and Peter Max
Bader (“
Peter
”)
born on 27 September 2008 from a relationship with Rebecca Sands.
2.2
As a consequence of disputes between Ms Sands and the Applicant, she
obtained an interim protection order against him in terms
of
Section
5(2)
of the
Domestic Violence Act, 116 of 1998
which order, so the
Applicant says, effectively deprived Peter of all contact with him.
2.3
During the
Domestic Violence Act proceedings
, an agreement was
reached allowing Peter supervised contact with the Applicant, the
Second Respondent was appointed to supervise
the contact.
2.4
The Second Respondent is a qualified and registered social worker.
2.5
The First Respondent was established in terms of
Section 2(1)
of the
SSPA and
inter alia
,
tasked with the determination of standards of professional conduct
for social workers and the exercising of control over their
conduct.
In terms of
Section 22
of the SSPA, it is also empowered to
discipline a social worker and cancel a social worker’s
registration of found guilty
of unprofessional or improper conduct.
PRECEDING
EVENTS
:
[3]
The events preceding the decisions which the Applicant now seeks to
have reviewed and set aside can be summarised as follows:
3.1
Supervised contact with Peter commenced on 15 May 2011. The Second
Respondent supervised the contact and reported on the first
six
contact cessions on 6 June 2011. Her conclusions in a report
was that it was premature to draw any hard and fast conclusions
about
the Applicant’s parenting capacity after only six contact
cessions.
3.2
The contact cessions thereafter continued and on 25 October 2011 the
Second Respondent produced a second report which concluded
with the
following comment:
“
My
professional opinion is that Peter’s best interest will be
served if contact is suspended until such time as Peter is older
and
less vulnerable. To continue contact at present would be to
place Peter at risk for emotional and physical abuse.
”
3.3
The report effectively terminated contact between the Applicant and
his son Peter. The Applicant was (in the words used
in the
Founding Affidavit) “
astounded and
devastated
” by the report.
If one has regard to the correspondence exchanged however, it appears
that he was more than that, he
was clearly incensed by the report.
3.4
The Applicant’s overt dissatisfaction with the report stems
from the fact that he disputed some of the factual averments
made
therein and categorised them as false, fictitious or biased. In
particular the report dealt with a videotaped incident
at a pond
where goldfish was caught and there were allegations of alleged
maltreatment by the Applicant of his dog in front of
Peter. In
support of his allegations, the Applicant relied on a psychometric
assessment report of a Dr Del Fabbro and a veterinary
behavioural
report from a Dr Quixi Sonntag as well as a transcript of the video
regarding the pond incident and the Respondent’s
reaction
thereto given in evidence in subsequent
Domestic Violence Act
proceedings
.
3.5
The Applicant referred his complaint to the president of the First
Respondent by way of a letter of his attorneys to which the
Applicant
had annexed a substantial number of annexures detailing the
abovementioned situation. In his written complaint
the
Applicant referred to the Second Respondent’s second report
which she delivered after she had without any prior notice
withdrawn
as supervisor with immediate effect. After dealing with the
Second Respondent’s latest report for three pages,
the
Applicant concluded his complaint as follows:
“
4.
Conclusion
4.1
It is not for me to speculate on the reasons for the clear
fabrication by Henig of facts and a subsequent biased report.
However it has catastrophic consequences for Peter and myself in
that:
4.1.1
My small son with whom I have a close and loving relationship, cannot
see his father and obviously I as a father have no contact
with my
son.
4.1.2
To restore the situation (which should be that I have free and
unsupervised contact) is not quick or simple and necessitate
complex
legal processes.
4.2
I submit that it is clear from this report that Henig is guilty of
such unprofessional conduct that she is not fit to practise
as a
professional social worker. I therefore request the council to
investigate and preside over this matter.
”
AD
THE DECISIONS COMPLAINED OF
:
[4]
4.1 How the First Respondent deals with complaints it receives, as
eloquently explained by Mr Molele who appeared for the
First
Respondent, is that the matter be referred to and considered by the
First Respondent’s Registrar’s Committee
on
Professional Conduct (“
RCPC
”).
As I understood Mr Molele, this committee acts as a “
filtering
mechanism
”. Due to the
number of complaints received and the costs involved in conducting
disciplinary inquiries or proceedings,
the RCPC as decision-making
body of the first instance, decides whether a complaint merits a
referral to the First Respondent’s
Committee for Preliminary
Inquiry (“
CPI
”)
or a direct referral for a disciplinary inquiry. Should the
RCPC find that, according to it, there is no evidence
of
unprofessional conduct, then the matter ends there and there is no
referral. This is what happened in the present
instance.
4.2
The record of proceedings filed by the First Respondent indicates
that the Applicant’s complaint together with a response
thereto served before the RCPC. The First Respondent’s
Registrar reported on 14 June 2012 to the Applicant as follows:
“
FEEDBACK
ON COMPLAINT OF ALLEGED UNPROFESSIONAL CONDUCT: BADER V HENIG
1.
Reference is made to your complaint lodged with the SACSSP in respect
of Ms Henig.
2.
As you have been informed, the process followed by Council in
investigating such complaints, is guided by the Regulations regarding
the Conducting of Inquiries into Alleged Unprofessional Conduct, as
published in R917 in Government Gazette No. 25109 of 27 June
2003.
3.
The matter was presented before the Registrar’s Committee for
Professional Conduct (RCPC), and after careful consideration
and
evaluation the committee resolved that at this stage, the matter has
been fully attended to in terms of the Council’s
mandate.
The matter is thus regarded as closed.
4.
A letter of caution will be sent to the Respondent, advising her to
take note of the Policy Guidelines for Course of Conduct,
Code of
Ethics and Rules of Social Workers.
”
4.3
The Applicant, through his attorneys, requested “
full
reasons
” for the above decision
as well as copies of the Policy Guidelines. In response hereto
the First Respondent’s
Registrar forwarded a “
Notice
of dispute form
” to the
Applicant. This is apparently the form used by the First
Respondent should a person “
be in
dispute or disagree with the recommendations made by …
”
the RCPC. Once the notice of dispute form is received it would
be tabled before the CPI.
4.4
The Applicant duly completed such a dispute form on 28 August 2012
and this served before the CPI’s next meeting together
with a
transcript of the Second Respondent’s evidence in the Domestic
Violence application referred to above.
4.5
On 13 December 2012 the First Respondent’s Registrar reported
again to the Applicant (through his attorneys) on the “
OUTCOME:
COMMITTEE FOR PRELIMINARY INQUIRY: BADER V HENIG
”.
In the response the reference to the Regulations as contained in
paragraph 2 of the Registrar’s previous letter
of 14 June 2012
is again repeated
verbatim
whereafter the following is stated:
“
3.
The matter was tabled before the Registrar’s Committee for
Professional Conduct as well as the Committee for Preliminary
Inquiry
(CPI) of the Professional Board for Social Work. The CPI had
after deliberation resolved to uphold the decision made
by the
Registrar’s Committee for Professional Conduct. The
matter is thus regarded as closed.
”
4.6
Again, a request for reasons by the Applicant (through his attorneys)
produced no results.
4.7
The minutes of the RCPC meeting of 16 May 2012 was delivered as part
of the record. It deals with the Applicant’s complaint
at
paragraph 6.15 thereof. As this is the most complete record of
the decision which the Applicant seeks to attack, I quote
it in full:
“
COMPLAINT:
The
Complainant is unhappy with the report submitted by the social worker
on the supervised contact between him and his minor son.
DISCUSSION:
Complainant
is unhappy with the fact that the Respondent has withdrawn from
rendering supervised contact services.
According
to the Respondent, she felt she was unable to fulfil her mandate of
acting in the best interests of the child due to
the complainant’s
remarks towards her and his behaviour while she was supervising
contact between him and the minor child.
RCPC
has noted that ‘supervised contact’ of 5 hours does not
appear normal and that visitations between the parent
and the child
should rather have been for a shorter period.
Uncertainty
exists about the reasons for the complainant attaching an affidavit
from a veterinarian when the fundamental issue
is the best interests
of the minor child and not the household pet.
Despite
no evidence of unprofessional conduct being found RCPC members did
challenge the fact that the Respondent could have either
recommended
that a new social worker be appointed to supervise visits or that an
independent social worker be appointed to review
the visitation
rights.
RCPC
RESOLUTION:
The
RCPC resolved as follows:
No
evidence of unprofessional behaviour or unethical conduct could be
found.
Complainant
to be referred to the office of the Family Advocate for a review of
the care and conduct arrangement and to appoint
a new supervising
social worker.
”
4.8
The minutes of the CPI meeting held on 22 and 23 November 2012 read
(
in
toto
)
regarding the present matter as follows:
“
COMPLAINANT:
Mr Bader (represented by Geyser Attorneys)
RESPONDENT:
Ms Henig (10-12802)
Summary
:
Mr
Bader has appealed the decision of the RCPC and the notice of appeal
was submitted to the CPI panel.
CPI
RESOLUTION
The
CPI resolved that:
The
decision of the RCPC meeting held on 16 May 2012, to be upheld.
”
THE
PAJA REQUIREMENTS
:
[5]
Initially in the papers the issue as to whether the decisions
complained of constituted administrative decisions which may be
reviewable by a court has been denied but this has been conceded in
the heads of argument on behalf of the First Respondent, in
my view
correctly so.
[6]
Section 5(1) of PAJA gives effect to the right entrenched in Section
32(2) of the Constitution of the Republic of South Africa
by
providing that any person whose rights have been materially or
adversely affected by an administrative action and who was not
being
given reasons for the action, may request the furnishing of such
reasons. In terms of Section 5(3) of PAJA, the failure
to
furnish “
adequate
reasons for an administrative action
”
creates a presumption in any proceedings for judicial review of the
administrative action that, in the absence of proof
to the contrary,
the action was taken without good reason.
THE
REASONS FOR THE RCPC DECISION
:
[7]
7.1 The letter conveying the RCPC’s “
feedback
”
dated 14 June 2012 contains no reasons but only the contents of the
Committee’s resolution that “
the
matter has been fully attended to
”.
7.2
The minutes of the meeting, insofar as it states in both the
discussion part and the resolution part thereof that “
no
evidence of unprofessional behaviour or unethical conduct could be
found
”
do not deal with the basis for such finding nor with the Applicant’s
actual complaints of incorrect or even fabricated
statements in the
Second Respondent’s report.
[8]
Mr Molele strenuously argued that the RCPC “
did
what it was obliged to do
”
in terms of the SSPA, namely to consider a complaint referred to it
and to make a ruling thereon.
[9]
Having regard to the oversight obligations contained in the SSPA, as
part of the consideration of a complaint by a person such
as the
Applicant, the RCPC would be tasked with the assessment of the
conduct of a practitioner, in this instance the Second Respondent.
This would also involve an assessment of her compliance with the
Policy Guidelines for Cause of Conduct, Code of Ethics and the
Rules
for Social Workers of the First Respondent and a determination
whether the Second Respondent’s conduct fell short of
what was
required including whether such conduct was “
unprofessional
”.
This would have involved a weighing up of the conduct (and a
determination if it has been established) against the
norms set out
in the SSPA and the aforesaid code.
[10]
Despite Mr Molele’s argument, it does not appear from the
RCPC’s letter or minutes that the aforesaid had indeed
taken
place. In dealing with the decision of the RCPC, the Caretaker
Registrar of the First Respondent, who was the deponent
to its
principal answering affidavit, could do no more than to refer to the
said letter and the minutes. Similarly, the confirmatory
affidavit of the Chairperson of the RCPC goes no further than to
state the following:
“
4.
That on the 16
th
May 2012 I was the chairperson of the meeting of the Registrar’s
Committee for Professional Conduct (RCPC). I further
confirm
that the complaint of Brian Bader against Leonie Henig was discussed
by the Committee.
5.
I further confirm that the Committee resolved amongst others that no
evidence of unprofessional behaviour or unethical conduct
could be
found.
6.
I further confirm the correctness of the minutes of the RCPC attached
to the opposing affidavit.
”
[11]
I am therefore of the view that no “
reasons
”
for its decision appears from the RCPC’s letter, its minutes or
the affidavit of its Chairperson. Insofar as
it was argued or
contended that the minutes should be taken to constitute adequate
reasons, I again differ. It has been stated
that the usage of
the word “
adequate
”
in Section 5(2) of PAJA constitutes an “
important
qualifier
”.
See
:
Hoexter,
Administrative Law in South Africa
,
2
nd
Edition at 476.
[12] The
aforementioned learned author, with reference to
Rean
International Supply Company (Pty) Ltd v Mpumalanga Gaming Board
1999(8) BCLR 918 (T) at 926F quoted that:
“
It
is impossible to lay down a general rule of what would constitute
adequate or proper reasons for each case must depend on its
own
facts.
”
Arguing
further, it has been stated by the learned author that:
“
Adequacy
cannot be an intrinsically meaningless or infinitely variable concept
and some of its ingredients at least must be common
to all cases.
In particular there is an inevitable connection between the adequacy
of reasons and their explanatory power.
”
In
the present instance, the RCPC documents do not contain any
explanatory statement as to why the Applicant’s contentions
of
unprofessional conduct and complaints against the insertion of
certain statements in the Second Respondent’s report (which
had
adversely affected him at the time) had not been dealt with or if it
had been dealt with, on what basis it had been rejected.
[13]
I interpose to state that, at the hearing of the application, the
Applicant’s contact rights with his son had been “
regularised
”
according to Ms Kolbe SC who appeared for him. I will deal with
this issue more fully hereunder but in my view he
falls in the
category of disgruntled parties against whom an administrative
decision had gone and in respect of which the Supreme
Court of Appeal
had, with reference to Australian case law, linked the idea of
adequacy with the affected person’s appreciation
of “
why
the decision went against me
”.
See
:
Minister of Environmental Affairs &
Tourism v Phambili Fisheries (Pty) Ltd
2003(6) SA 407 (SCA) at [40].
[14]
In the aforesaid case the following has been described as an apt
description of what constitutes adequate reasons (although
in a
slightly different context):
“…
the
decision-maker should set out his understanding of the relevant law,
any findings of fact on which his conclusions depend (especially
if
those facts have been in dispute) and the reasoning process which led
him to those conclusions. He should do so in clear
and
unambiguous language, not in vague generalities or the formal
language of legislation. The appropriate length of the
statement covering such matters will depend upon considerations such
as the nature and importance of the decision, its complexity
and the
time available to formulate the statement.”
[15]
In respect of the CPI decision, Mr Molele again argued that the
matter was properly considered. He relied on statements
contained in the answering affidavit by the Registrar of the First
Respondent who dealt with and argued the incorrectness of the
Applicant’s complaint and the factual submissions made by him.
The affidavit also dealt with the subsequent transcript
in the
Domestic Violence proceedings which had been forwarded to the PCI as
part of the “
appeal
”.
None of these arguments, deliberations, considerations of factual
disputes (if any) and the evaluation and assessment
process of the
Respondents’ conduct to which I have already referred to above,
are however apparent from the CPI minutes.
The minutes display
even less of a compliance with the aforementioned case law or the
requirement for “
adequate reasons
”
than the minutes of the RCPC. In similar fashion as above, its
Chairperson, in his confirmatory affidavit to the Registrar’s
affidavit only states the following:
“
On
22 and 23 November 2014 I was the Chairperson of the meeting of the
Committee for Preliminary Inquiry (CPI). I further
confirm that
the complaint of Brian Bader against Leonie Henig was discussed by
the Committee as a result of the dispute lodged
by Mr Bader against
the decision of the Registrar’s Committee of Professional
Conduct (RCPC). I further confirm that
the Committee resolved
to uphold the decision of the RCPC meeting held on 16 May 2012.
I further confirm the correctness
of the minutes of the CPI attached
to the opposing affidavit.
”
[16]
I also add that the Applicant’s application was launched in
terms of Rule 53 of the Uniform Rules which also enjoins
a respondent
to dispatch, together with the record “
such
reasons as he is by law required or desires to give or make
”.
As pointed out, this invitation has not been accepted by the relevant
decision-makers. There has also not been
an indication that the
decision-makers were entitled to depart from the requirement to
furnish adequate reasons in any of the circumstances
set out in
Section 5(4) of PAJA.
[17]
The consequence of the above and the effect of the rebuttable
presumption created in Section 5(3) of PAJA is to place the onus
on
the administrator to show that the action was taken lawfully
notwith-standing the failure to give reasons.
See
also
:
Wessels
v Minister for Justice and Constitutional Development
2010(1) SA 128 (GNP) at 141E.
[18]
In view of the nature of the order which I propose making, I do not
deem it appropriate to express myself further regarding
the merits or
not of the Applicant’s complaints against the Second Respondent
or as to the unprofessionality of her conduct
or not, save to state
that the complaints raised are of a serious nature and constitute
sufficient grounds to demand further and
better exploration and
responses than that furnished by the Second Respondent previously as
well as a proper and full consideration
as to whether the conduct
merits sanction or censure.
REMEDIES
:
[19]
The Regulations regarding the Conducting of Inquiries into Alleged
Unprofessional Conduct, R917 published on 27 June 2003 in
Government
Gazette No. 25109, promulgated pursuant to Section 28 of the SSPA
provide for the “
constitution of a
professional Conduct Committee and a Committee of Preliminary
Inquiry
”. There is no
provision for the constitution of the so-called Registrar’s
Committee on Professional Conduct (the
“RCPC”).
Nevertheless, it appears to be a functioning committee of the First
Respondent performing the functions
of the Registrar as referred to
in [21]
intra
.
[20]
In the absence of any other indication, I assume that the CPI is the
C
ommittee of Preliminary Inquiry
”
provided for in Regulation 2(4) established in terms of Section 10 of
the SSPA. As such, it is only empowered to hold
a preliminary
inquiry and can only impose a reprimand on a plea of guilty.
[21]
A reading of the regulations indicates that the process for a
disciplinary enquiry starts with the lodging of a complaint of
alleged unprofessional conduct on the part of the registered person
in terms of Regulation 3 with the Registrar. The Registrar
should thereafter investigate the complaint and in the event of a
dispute between the Registrar and the complainant, the complaint
shall be referred to the Committee of Preliminary Inquiry for further
investigation in terms of Regulation 4(4).
[22]
The Committee of Preliminary Inquiry is, in terms of Regulation 6,
obliged to take the following factors into consideration
in deciding
whether it would be appropriate to hold a preliminary or disciplinary
inquiry:
22.1
The nature of the complaint;
22.2
The consequences of the alleged unprofessional conduct;
22.3
The complexity of the unprofessional conduct;
22.4
The penalty which the Committee of Preliminary Inquiry anticipates
could be imposed by the Professional Conduct Committee;
22.5
Any other matter which in the opinion of the Committee warrants the
holding of a preliminary or disciplinary inquiry.
[23]
The Committee of Preliminary Inquiry, if after having investigated
the complaint, is of the opinion that a complaint, even
if it is
proven, does not constitute unprofessional conduct, “
shall
take such steps as it may deem necessary
”
and report the steps to the Council in terms of Regulation 7(1).
In terms of Regulation 7(5) the Committee of Preliminary
Inquiry may
refer the matter for a disciplinary inquiry in terms of Regulation
16.
[24]
To sum up:
24.1
Neither the RCPC (or the Registrar)nor the CPI provided adequate
reasons for its decisions.
24.2
The PAJA deeming provision which follows to the effect that the
decisions were made without good reason, was not disturbed
by any
evidence provided in rebuttal.
24.3
Although there is no specific provision providing for a body or
committee such as the RCPC but in order to err on the side
of caution
and on the assumption that the RCPC performs the functions of the
Registrar provided for in Regulation 4, its decision
should be set
aside.
24.4
The same deeming provision operating against the CPI in the absence
of the furnishing of adequate reasons as well as an absence
of
evidence that it had complied with its obligations in terms of
Regulation 6, similarly renders its decision invalid and it should
be
set aside.
SUBSTITUTION
:
[25]
In terms of its initial notice of motion, the Applicant claimed that
the decisions of the Committees of the First Respondent
be
substituted with a decision whereby the registration of the Second
Respondent is cancelled.
[26]
The Applicant has requested that this court substitute its decision
for that of the abovementioned decision-makers and cancel
the
registration of the Second Respondent.
[27]
From a reading of the decisions as detailed by me, it is clear that
the decision-makers have not made the decision complained
of by the
Applicant in paragraph 1.1 of its notice of motion.
[28]
Furthermore, neither the Registrar, nor the RCPC nor the CPI have
been empowered by the regulations to cancel the registration
of a
person such as the Second Respondent. It is only after the
proceedings in a disciplinary inquiry has taken place in
terms of
Regulations 16 to 24 that the decision of such a committee (being a
“
Professional Conduct Committee
”)
reports its findings to the First Respondent who may then act in
terms of Section 22 of the SSPA.
[29]
In the alternative prayers to the amended notice of motion of the
Applicant, reviews are only sought of the decisions of the
RCPC and
CPI and that it be substituted with a referral for a disciplinary
inquiry.
[30]
To an extent the referral to a disciplinary inquiry constitutes a
“
correction
”
of the CPI decision. At common law it is well established that
the court will generally refer the matter to the original
decision-maker rather than to attempt to correct the decision, i.e.
substitute its own decision for that of the administrator.
This, the learned author Hoexter
op cit
at 552 says:
“…
is
because the courts’ respect for the distinction between appeal
and review has judicially made them reluctant to usurp the
decision-making powers that the legislature has delegated to the
administration.
”
[31]
Although a court should be slow to assume a discretion which has by
statute been entrusted to a tribunal or a functionary,
it can and
should do so, where the end result is a foregone conclusion, where a
further delay would cause unjustifiable prejudice
or where the
original decision-maker has exhibited bias or incompetence and lastly
where the court is as well qualified as the
original authority to
make the decision.
See
also
:
Johannesburg
City Council v Administrator
Transvaal
1969(2) SA 72 (T).
[32]
In the present instance however, the “
correction
”
is only to the effect that a disciplinary inquiry should be held.
The “
correction
”
would therefore not lead to a final determination regarding the
conduct of the Second Respondent and/or the unprofessionality
thereof. In view of the substance of the Applicant’s
claims and the nature of his complaint as already referred to
above,
I am of the view that in the present circumstances such a correction
is warranted and to decline to do so, would lead to
an unnecessary
delay which would only cause prejudice to the parties. It is in
the interest of all that a proper consideration
and finality be
obtained as soon as possible.
STANDING
:
[33]
In the last instance, Mr Molele argued on behalf of the First
Respondent that the application should not be granted due to
the fact
that the Applicant lacks the necessary
locus
standi
. This is based on the
argument that the access between the Applicant and Peter has
subsequently been regularised and that
a disciplinary enquiry or even
any subsequent sanction which may be imposed on the Second Respondent
will have no real effect on
the Applicant or his rights of access.
[34]
In a counter to the aforesaid argument I was,
inter
alia
referred to the wording of Section
6(1) of PAJA which provides that “
any
person
” may institute review
proceedings of administrative action.
[35]
In my view it must be clear that the Applicant was an affected party
at the time when he lodged the complaint and clearly remained
so
affected at the time when the matter was dealt with by the CPI.
It is not clear at which stage the contact rights became
“
regularised
”.
Apart from having been an affected party at the time, the Applicant
remained an aggrieved party as long as the effect
of the Second
Respondent’s report had an impact on the limitation of his
rights of access to Peter. I am of the view
that the overcoming
or “
correction
”
of the consequences of the report of the Second Respondent about
which the Applicant complains, does not result in a situation
where,
if she had been guilty of unprofessional conduct, he had forfeited
the right to have his complaint properly heard or investigated
or no
longer has such a right.
[36]
More than a century ago, Innes CJ in
Dalrymple
v Colonial Treasurer
1910 TS 372
at
379 stated the following:
“
The
general rule of our law is that no man can sue in respect of a
wrongful act unless it constitutes the breach of a duty owed
to him
by the wrongdoer or unless it causes him some damage in law…
and the rule applies to wrongful acts which affect the
public as well
as to torts committed against private individuals.
”
[37]
In my view this comment is still applicable and, if there had been a
wrongful act committed, the fact that it is now part of
history, does
not detract from the Applicant’s right to have that wrongful
act properly investigated and adjudicated upon
by the statutory body
empowered to do so.
CONCLUSION
:
[38]
In the premises I find that the Applicant has established grounds
entitling him to an order in terms of Sections 8(1)(c),
8(1)(c)(ii)(aa) as well as 8(1)(f) of PAJA.
ORDER
:
[39]
Accordingly I make the following order:
1.
The decision of the First Respondent’s Registrar’s
Committee on Professional Conduct (“
RCPC
”)
dated 16 May 2012 whereby it resolved that no evidence of
unprofessional behaviour or unethical conduct of the Second
Respondent could be found and whereby the Applicant’s complaint
was not referred to a disciplinary enquiry is hereby set aside.
2.
The decision of the First Respondent’s Committee for
Preliminary Inquiry (“
CPI
”)
on 22 and 23 November 2014 to uphold the decision of the First
Respondent’s Registrar’s Committee on Professional
Conduct (“
RCPC
”)
on 16 May 2012 in respect of the Applicant’s complaint and
failure to refer the Applicant’s complaint against
the Second
Respondent for a disciplinary inquiry is set aside and replaced with
the following:
“
In
terms of Regulation 7(5) of the Regulations regarding the Conducting
of Inquiries into Alleged Unprofessional Conduct R917 promulgated
on
27 June 2003 in Government Gazette No. 25109, the complaint by Brian
Bader against Leonie Henig is referred for a disciplinary
inquiry in
terms of Regulation 16.”
3.
The First Respondent is ordered to pay the costs of the application.
_________________________________
N DAVIS
ACTING JUDGE OF
THE HIGH COURT
GAUTENG DIVISION
PRETORIA