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[2014] ZAGPPHC 206
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Padayatchi v University of Pretoria and Others (18000/2013) [2014] ZAGPPHC 206 (16 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: 18000/2013
Date
heard: 12 February 2014
Date
of judgment: 16 April 2014
Not
reportable
Not
of interest to other judges
In
the matter between:
DEANA
DYLAN PADAYATCHI
…………………………………………….
First
Applicant
And
UNIVERSITY
OF PRETORIA
……………………………………………..
First
Respondent
THE
REGISTRAR
UNIVERSITY
OF PRETORIA
……………………………………….....
Second
Respondent
CHAIRMAN
OF THE COUNCIL
UNIVERSITY
OF PRETORIA
…………………………………………..
Third
Respondent
HEALTH
PROFESSIONS
COUNCIL
OF SOUTH AFRICA
……………………………………...
Fourth
Respondent
JUDGMENT
A.M.L.
PHATUDI J:
[1]
The applicant seeks an order directing
the first, second and third respondents (UP) to permit him to
‘
1.1.
Be registered as a student at the University of Pretoria (UP)
1.2.
Participate in all programs at the University of Pretoria that are
necessary for the fulfilment of the requirements for
the degree of
Maters of Medicine (MMed (iv) – Psych).’
[1]
[2]
The
applicant is a medical doctor and duly registered as a medical
practitioner as envisaged in terms of the Health Professions
Act 51
of 1974.
[3]
The
applicant is a registered student for the degree in Masters of
Medicine in the speciality of Psychiatry. Students who are registered
in master’s degrees are referred to as “registrars”.
The applicant qualifies to be so referred. He is further
employed by
the Gauteng Department of Health as Chief Medical Officer in the
Mental Health Program serving Community Mental Health
Services in the
greater Tshwane region.
[2]
[4]
The first, second and third respondents
are, for the purposes of this application, referred to hereinafter as
the University of
Pretoria (U.P.) The fourth respondent, Health
Profession Council of South Africa (HPCSA) is cited herein as it may
have the interest
in the outcome of the case. No relief is sought
against them. No appearance has been entered on its behalf.
[5]
There is a string of events, episodes,
allegations of racism and umpteenth correspondence between the
applicant and UP that culminated
up to the issuing of a letter by
Prof Grove to the applicant. I find it inevitable to quote the
contents of the entire letter.
It is stated:
‘
Dear
Padayatchi
PENDING
DISCIPLINARY HEARING - REQUEST TO SUSPEND STUDIES
Your
letter dated 6 April 2011 in which you request permission to
interrupt your studies at the University of Pretoria with immediate
effect for a period of two months, refers.
As
you are aware, the complaints underlying the pending disciplinary
hearing against you are of a serious nature.
In
the letter referred to above, you have requested permission to
interrupt your studies for two months due to challenges of a personal
nature.
If
the request is granted you will be a registered student of the
University and subsequently subject to the University’s
rules
and regulations. This will therefore not lead to a stay of the
disciplinary process that has already commenced.
Should
you, however, decide to discontinue your studies at the University of
Pretoria due to medical reasons, you will no longer
be a registered
student of the University and therefore not subject to the
University’s disciplinary code and procedure.
Once your health
has improved, you will be entitled to apply for readmission to
the University and specifically the Faculty
of Health Sciences.
In
order for the University, at that stage, to consider your application
for readmission, you would have to submit a report
to the
Registrar of the University by a psychiatrist of your choice stating
that your psychiatric health is of such a nature that
you will be
able to resume your studies at the University and that your future
behaviour will not pose a threat to staff, students
and/or other
third parties. Please note that the University will be entitled to
obtain a second opinion in this regard by a psychiatrist
appointed by
the University (at the University’s cost).
If
you reapply to the University, the University reserves the right to
refuse your application for admission if the University is
of the
opinion that good reasons exist why you should not be readmitted to
the University (obviously subject to the University’s
obligation to act in an administratively fair manner).
If
you are re-admitted the University will be entitled to set conditions
for such re- admission. The University may also prescribe
where you
are to render services during your training. This will be in your own
interest as well as in the interest of staff and
students that were
affected by incidents that underlie the pending disciplinary hearings
and will at all times be in the University’s
discretion. Should
you be re-admitted subject to the above conditions, the University
will not proceed with the disciplinary hearing
referred to above.
Please
indicate whether you wish to interrupt your studies as indicated in
your letter or whether you would prefer to discontinue
your studies,
taken into consideration the implications related to each of the said
options.
Please
notify this office of your decision in order to ensure that the
necessary arrangements are put in place as speedily as possible
in
the interest of all parties concerned.’
[3]
[6]
On the 20 April 2011, the applicant
responded thereto in his letter where he stated:
‘
I
hereby
formally request that I be temporarily deregistered as a student at
the University of Pretoria for health reasons with effect
from 1
April 2011 ... ‘
[4]
[7]
Two
months later, the applicant applied for re-admission as a student at
the UP. Reiteration of the contents of the letter quoted
at paragraph
[5] above was the UP’s response. The applicant, as a matter of
common cause, was on 27 February 2012, allowed
to reregister as
a student. He was, however, not permitted to continue with the
academic or practical training programmes
of the University; he was
not allowed to attend the patients in the Department of Psychiatry
...’
[5]
[8]
The UP has in my view, complied with the
applicant’s first prayer This requires no further
consideration. Participation in
all programmes at the UP that are
necessary for the fulfilment of the requirements for the degree of
Masters in Medicine (MMed
(iv) - Psych) is the only issue that
requires consideration. It must be borne in mind that UP had
indicated to the applicant that
his re-admission would be subject to:
8.1.
The applicant submitting a report to the
Registrar by a psychiatrist of his choice that his psychiatric health
was such that he
would be able to resume his studies at the
University, and that his future behaviour would not pose a threat to
staff, students
and/or third parties
8.2.
The University would be entitled to
obtain a second opinion by a psychiatrist appointed by the University
at its own cost.
8.3.
The University still reserved the right
to refuse his application if it was of the opinion that good reasons
exist why he should
not be readmitted to the University.
[9]
The
applicant consulted with Drs Dikobe and Valli in his endeavour to
comply with the first condition mentioned above. Dr Lerato
A.M.
Dikobe opined that the applicant ‘has improved sufficiently to
enable him to continue with his specialist training program
in
Psychiatry.’
[6]
The doctor
further opined that the applicant ‘does not pose a danger to
himself or others in the University or workplace.’
[7]
[10]
Dr
Ahmed Vali assessed the applicant. The doctor states that ‘since
[the applicant’s] temporary resignation from his
registrar’s
post about a year ago, he [the applicant] has been in remission and
we agreed to stop his medication last year.
[The applicant] continued
to work in 4 clinics seeing psychiatric patients daily and has not
had any further outbursts ... ‘
[8]
[11]
Dr Valli recommended the return of the
applicant to his registrar training post as the applicant is now in
full remission. Professor,
Dr D.L. Mkize corroborates Dr Valli’s
report. Prof Mkize recommended:
‘
It
is recommended that he be allowed to re-register and continue with
his studies. He is fit to perform registrar duties at the
university
and hospital. He currently poses no threat to staff, patients,
students or any other persons.’
[9]
[12]
It
is apparent that the reports of doctors appointed by UP and those by
the applicant, were tabled at the Health Committee of HPCSA.
The
committee considered the said reports and resolved that the applicant
can continue with his registrar training program under
the
supervision of Dr Chala.
[10]
[13]
It is clear from the reading of UP’s
answering affidavit and submissions made that the said reports are
not disputed.
[14]
UP contends, however, that they reserve
the right to refuse the applicant’s application if it was of
the opinion that good
reasons exist why the applicant should not be
permitted to continue with his training program towards his Master’s
degree.
[15]
UP relies on allegations that led to the
charges levelled against the applicant as “good reasons”
not to permit the
applicant to continue with his studies. All such
allegations have not been tested by the disciplinary committee, a
tribunal or
a court of law. It is trite law that every person accused
of having transgressed the law or the rules remains innocent until
proven
guilty. There are no factual findings by any disciplinary
committee, tribunal or a court of law on the conduct of the
applicant.
[16]
In the absence of the factual findings,
a disciplinary committee’s verdict or a court order imposed on
the applicant, UP’s
“good reasons” are, in my view,
not good enough to rely on not to permit the applicant to continue
with his training
programme towards completing his Master’s
degree.
[17]
It is trite that cost follow the event.
The applicant succeeds with his application and thus entitled to his
costs.
I
in the result, make the following order:
Order
:
1.
The University of Pretoria (First,
Second and Third respondent) is directed to:
(a)
Register the applicant as a student at
the University of Pretoria.
(b)
Permit the applicant to participate in
all programmes at the University of Pretoria that are necessary for
the fulfilment of the
requirement for the degree of Masters of
Medicine (MMed (iv) - Psych)
2.
The First, Second and Third (university
of Pretoria) is ordered to pay the applicant’s cost.
A.M.L.
Phatudi
Judge
of the High Court
On
Behalf of the Applicant: Routledge Modise Inc.
C/O
Jacobson Levy Inc. 215 Orient Street Arcadia Pretoria
Adv.
P Mookie
On
Behalf of the 1
st
to
3
rd
Respondents: Anton Bekker Inc.
Nicolson
Square 162 Nicolson Street Brooklyn Pretoria
Adv.
A.I.S. Redding SC
[1]
Notice of Motion - page 2
[2]
Founding Affidavit - page 6 - paragraph 1
[3]
Annexure DDP7 to Founding Affidavit page 55 - 56
[4]
Annexure DDP8 to Founding Affidavit Page 57
[5]
Answering Affidavit paragraph 49.4
[6]
Annexure DDP 9 to Founding Affidavit page 60
[7]
Ibid
[8]
Annexure DDP 10 to Founding Affidavit page 61. My under line
[9]
Annexure DDP 13 to Founding Affidavit page 70
[10]
DPP 14 page 71