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[2014] ZAGPPHC 423
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Roux v Health Professions Council of South Africa and Others (54835/2013) [2014] ZAGPPHC 423 (9 May 2014)
/SG
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
DATE:9 MAY 2014
CASE NO: 54835/2013
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
LYNETTE MARY
ROUX
.............................................................................................................
APPLICANT
And
HEALTH PROFESSIONS
COUNCIL OF SOUTH
AFRICA
.............................................
1
st
RESPONDENT
THE REGISTRAR:
HEALTH PROFESSIONS COUNCIL
OF SOUTH
AFRICA
............................................................................................................
2
nd
RESPONDENT
OLIVER MICHAEL
POWELL
............................................................................................
3
rd
RESPONDENT
JUDGMENT
PRINSLOO, J
[1] The applicant
applies for a final interdict restraining the first and/or second
respondents from proceeding with an inquiry
into the conduct of the
applicant, a clinical psychologist, in terms of the Health
Professions Act 56 of 1974 ("the Act")
The third respondent
("Powell") is the complainant who laid certain charges
against the applicant with the first respondent.
[2] Before me, Mr
Beltramo SC appeared for the applicant, Mr Foden for the first and
second respondents and Mr Snyckers SC for the
third respondent
(Powell).
Introduction and
Background
[3] The applicant,
in her aforesaid capacity as a clinical psychologist, was appointed
to conduct forensic work and furnish a report
to the office of the
Family Advocate in Johannesburg, regarding litigation between Powell
and one Ms Linda Petzer about access
to a minor child, Byron, born of
the relationship between them. The applicant furnished the family
advocate with a report on 19March2004.
She thereafter assumed the
role of a therapeutic psychologist and began treating Byron. During
March 2005, and whilst still treating
Byron, the applicant
supplemented her March 2004 report.
[4] In April 2005,
Powell, through the registrar, (second respondent) submitted a
complaint to the first respondent against the
applicant. The first
respondent, the Health Professions Council of South Africa, was
established in terms of section 2 of the Act
and has as its objects,
amongst others, to promote and to regulate inter-professional liaison
between health professions in the
interest of the public and to
control and exercise authority in respect of all matters affecting
the profession. The first respondent
must, in terms of section 3(j)
of the Act, serve and protect the public in matters involving the
rendering of health services by
persons practising a health
profession.
One of the functions
of the first respondent, set out in section 3(n) of the Act, is:
"To ensure the
investigation of complaints concerning persons registered in terms of
this Act and to ensure that appropriate
disciplinary action is taken
against such persons in accordance with this Act in order to protect
the interest of the public."
[5] Powell's first
complaint was that the applicant had acted unprofessionally when she
assumed multiple relationships ("the
multiple relationships
charge") namely that of being an investigator appointed by the
family advocate and then also a therapist
to Byron. Secondly, Powell
complained that the applicant had misdiagnosed Powell's condition
("the misdiagnosis charge").
[6]
Acting in terms of Regulation 31b, promulgated in terms of section 61
of the Act, the second respondent forwarded a copy of
the complaint
to the applicant requesting her to respond, which she did in writing,
in February 2006.
Thereafter, in terms
of Regulation 3(2), the matter was placed before the Committee of
Preliminary Inquiry of the Professional Board
for Psychology ("the
Committee"). On the advice of an expert consulted by the
Committee, the Committee resolved, in May2007,
in terms of Regulation
3(3) and 3(4) that an inquiry into the conduct of the applicant
should be held with special reference to
the multiple relationships
charge.
[7] The
pro-forma complainant (defined in regulation 1 as a person appointed
by a professional board to represent the complainant
and to present
the complaint to a professional conduct committee) prepared a draft
charge-sheet referring to the multiple relationships
charge only and
the charge-sheet was sent to the applicant by the registrar (second
respondent) specifying the date, time and place
where the inquiry
into this charge would be held.
[8]
The inquiry was postponed on numerous occasions for various reasons.
The charge-sheet was also amended on at least three occasions.
Importantly, it was amended by the pro-forma complainant, without
reference to the Committee after Powell insisted that the pro-forma
complainant also prefer the misdiagnosis charge against the
applicant.
[9] Because of
repeated postponements of the inquiry, amendments of the charge-sheet
and delays over a number of years, the applicant
applied to this
court for declaratory and interdictory relief against the first
respondent and Powell. She sought an order that
the inquiry
instituted against her in terms of section 41 of the Act be declared
unlawful, unreasonable and/or procedurally unfair
and directing that
the enquiry be permanently stayed.
[10]
Following the amendment of the charge-sheet by the introduction of
the misdiagnosis charge, the applicant also filed an amended
notice
of motion in which he sought additional relief,
inter
alio,
a
declarator that the charge-sheet be set aside, alternatively that
count 1
thereof
(the misdiagnosis charge) be set aside, and that the first respondent
be directed to hold an inquiry only into the alleged
misconduct in
respect of count 2
(the
multiple relationships charge).
[11]
The learned judge, TUCHTEN J, dismissed the application but granted
leave to appeal to the Supreme Court of Appeal ("the
SCA")
on a single issue only, namely the setting aside of charge 1.
In this regard, the
notice of appeal filed by the applicant (as appellant) following the
granting of leave to appeal, reads as follows:
"The
Appellant (Applicant in the court
a
quo)
hereby
notes an appeal against that part of the judgment of his Lordship
Tuchten J handed down on 3 September 2010 in the South
Gauteng High
Court of South Africa, Johannesburg,
{sic)
under
case number 2009/20493 in terms of which the learned Judge dismissed
the relief to set aside charge
1
embodied
in the charge sheet served on the Appellant on 4 September 2009 with
costs ..."
[12] The main thrust
of the appeal was that the pro-forma complainant had acted beyond the
statutory powers by adding the misdiagnosis
charge to the charge
sheet without the authority of the Committee. This was the only issue
before the SCA, the learned judge of
appeal stating the following in
paragraph [13] of the unreported judgment of that court:
"Before us, the
litigation between the parties has been reduced to a single issue:
whether a pro forma complainant has the
authority to prefer charges
against a health practitioner which were not authorised by the
committee of preliminary inquiry?"
[13] The appeal was
upheld. The following is stated in paragraph [27] of the judgment:
"The pro forma
complainant accordingly did not have the authority to include the
misdiagnosis charge in the charge sheet. He
was furthermore not
entitled to accept expert opinions sourced by the second respondent
and formulate the misdiagnosis charge based
on such opinions. He had
a duty to act in accordance with the instructions of the committee.
In the result the High Court erred
in finding that the pro forma
complainant had the power to determine the ambit of the inquiry,
including the specific charges to
be preferred."
[14] The appeal was
upheld with costs.
The dispute
between the parties, and the issue to be decided
[15] In upholding
the appeal with costs, the SCA set aside the order of this court and
replaced it with the following:
"(a) Count 1 of
the charge-sheet dated 4September2009 is set aside.
(b)
The
first respondent is ordered to hold an inquiry into the
appellant's
alleged misconduct solely in respect of Count 2
within
two months of the date of this judgment
.
(c) The first and
second respondents are ordered jointly and severally, the one paying
the other to be absolved, to pay the costs
of the application."
(Emphasis added)
[16] The judgment of
the SCA was delivered on 21September 2011, which means, on a general
reading of order (b), the inquiry had
to be held by 21November2011.
[17] After the SCA
delivered its judgment on 21September2011, there was a flurry of
activity: the attorneys representing the various
parties corresponded
with one another. There were telephone calls made and discussions
held about the need for the inquiry to be
held by 21November. There
were issues of availability and the lack thereof. There were
complaints about the failure to give the
prescribed thirty days
advance notice for the inquiry, which the registrar at one stage set
down for hearing on 21November2011.
The inquiry could not proceed.
Members of the
Professional Conduct Committee for Psychology were, for example, not
available.
I consider it
unnecessary to embark upon a more detailed discussion about all these
developments. A comprehensive account is to
be found in paragraph 66
of the applicant's founding affidavit in this interdict application.
[18] Already on 15
November 2011, the applicant's attorneys wrote to the first
respondent (also, in general, described as "the
HPCSA")
pointing out that where the SCA made it clear that the inquiry was to
be conducted within two months after the judgment,
the judgment was
clear, and, viewed in its proper context, meant that should the first
respondent fail to hold the inquiry within
the stipulated two month
period, it could no longer prosecute the applicant on Count 2.
Plainly put, so the letter went, the first
respondent was barred from
prosecuting the applicant on Count 2 unless it did so within the two
month period stipulated by the
SCA. The first respondent was
threatened that should the inquiry be set down after the expiry of
the two month period, the applicant
would launch an application for
an interdict restraining the first respondent from holding the
inquiry.
[19]
The flurry of activity carried on even after 21November 2011. By
25January2012 the first respondent's attorneys advised their
counterparts that they had obtained legal advice to the effect that
they must proceed with the inquiry, irrespective of the expiry
of the
two month period. Powell's attorneys also adopted the view that the
inquiry should be set down for hearing. A date in April
2012 was
reserved but the proposed inquiry was aborted again,
inter
alia
because
there was no confirmation that the Psychology Board members were
available.
[20] Powell, as the
complainant, felt that his rights were being compromised by the
ongoing delays, and, on 18 May 2012, he launched
contempt of court
proceedings, under case number 27620/2012, in this court, against the
first and second respondents, citing the
applicant, as an interested
party, as the third respondent.
[21] Paragraphs 1
and 2 of the notice of motion issued by Powell, read as follows:
"1. Declaring
the first respondent to be in contempt of the order of the Supreme
Court of Appeal dated 21September2011 under
case number 786/2010.
2.
Committing the second respondent to jail for such contempt until such
time as the order referred to in
1
above
is complied with by the first respondent."
[22] The first and
second respondents were now between the devil and the deep blue sea:
if they proceeded with the inquiry they
would be interdicted by the
applicant. Because they failed to institute an inquiry they were
facing contempt of court proceedings.
[23] In a desperate
measure, the first and second respondents launched a
counter-application to the contempt proceedings, the relevant
paragraph reading as follows:
"1. Permitting
and directing the first and second respondents to hold a professional
conduct inquiry into the third respondent's
alleged misconduct solely
in respect of count
2 despite the
passage of two months since the decision of the Supreme Court of
Appeal under case number 786/2010."
The
counter-application was dated 1 August 2012.
The applicant, as
third respondent, was not cited as a co-respondent to the
counter-application. Consequently, she was not given
the opportunity
to oppose the relief sought and applied for the counter application
to be set aside as an irregular proceeding.
Her objection was upheld
in a judgment of 24 May 2013 by PRETORIUS J so that the
counter-application was set aside.
[24] The contempt
application is still pending, and Powell still has to file a replying
affidavit. From my debate with counsel during
the hearing, it appears
that the contempt application is being held in abeyance, correctly in
my view, pending the outcome of the
present application because the
result could have a bearing on the way forward for the contempt
application.
[25] The next
significant step in this, somewhat tortuous, sequence of events was
that the first and second respondents, acting
on the legal advice
that they had obtained, and to which I have referred, set the inquiry
down for hearing on 25September2013.
The second respondent
(Registrar) sent a written notice to the applicant, dated 17July2013,
notifying her of the hearing in terms
of Regulation 4(a) promulgated
in terms of the Act. The charge-sheet was attached and, correctly,
relates only to Count 2 which
is the multiple relationships charge.
The charge reads as follows:
"That you are
guilty of unprofessional conduct or conduct which, when regard is had
to your profession, is unprofessional in
that during or about October
2004 until November 2005 and in respect of your client, minor Byron
Powell you, whilst already being
engaged in a forensic role, also
entered into a psychotherapy relationship with your client whilst
this multiple relationship could
reasonably be expected to impair
your objectivity and/or competence and/or effectiveness towards your
client in performing your
functions as psychologist."
I repeat that this
charge was based on independent expert medical advice obtained by the
Committee, and it is also supported by
two medical experts, a
clinical psychologist and a clinical and counselling psychologist,
consulted by Powell, and whose medico
legal reports are attached to
Powell's answering affidavit as the third respondent in the
application before me.
[26] The applicant's
response to the notification to attend the hearing was the interdict
application now before me. It was set
down for 17September2013 to
restrain the first and second respondents from proceeding with the
planned inquiry on 25September 2013.
It was set down as an urgent
application. On 17September 2013 it was removed from the roll. I
assume this happened by agreement
between the parties and the inquiry
was not proceeded with pending the outcome of the application which
came before me on 17April2014.
[27] The application
was crafted on the basis that the main relief sought was interim
interdictory relief pending the outcome of
the contempt proceedings.
In the alternative, a final interdict was sought. The applicant
clearly abandoned the interim application
and before me sought the
final interdict which is contained in prayer 3 of the notice of
motion and reads as follows:
"... finally
interdicting the first and/or second respondents from proceeding with
an inquiry into the conduct of the applicant
relating to the charge
set out in annexure 'LMR-40' to the founding affidavit."
The charge is the
one I quoted. There is also a prayer for costs on a scale as between
attorney and own client. Costs are only sought
against Powell, as
third respondent, if he opposes the application, which he did.
[28] The issue is to
interpret the meaning of order 2(b) of the SCA, which I have quoted,
but it bears repeating:
"The first
respondent is ordered to hold an inquiry into the appellant's alleged
misconduct solely in respect of Count 2 within
two months of the date
of this judgment."
[29] The question
is: does it mean that, once the two months have expired, the first
and second respondents are debarred from ever
holding the inquiry
(the applicant's contention) or does it mean that, despite the expiry
of the two months, the inquiry can, and
must, still be held (the
contention of the respondents).
[30] I add that the
first and second respondents revived the aborted counter-application
which was struck out in the contempt proceedings
by launching a
counter-application in this interdict application, dated
30ctober2013, the main prayer of which reads as follows:
"Permitting and
directing the first and second respondents to hold a professional
conduct enquiry into the third respondent's
alleged misconduct solely
in respect of Count 2 despite the passage of two months since the
decision of the Supreme Court of Appeal
under case number 786/2010."
Counsel before me
were in agreement that, in the event of the interdict application
being dismissed, it would be appropriate for
me to grant the counter
application in these terms.
More about
interpreting the order
[31]
The approach to be adopted when interpreting a court's judgment or
order is set out in
Firestone
South Africa (Pty) Ltd v Genticuro A.G.
1977
4 SA 298
(AD) 304D-H.
"Thus, as in
the case of a document, the judgment or order and the court's reasons
for giving it must be read as a whole in
order to ascertain its
intention."-At 304E
"But
if any uncertainty in meaning does emerge, the extrinsic
circumstances surrounding or leading up to the court's granting
the
judgment or order may be investigated and regarded in order to
clarify it; for example, if the meaning of a judgment or order
granted on an appeal is uncertain, the judgment or order of the court
a quo
and
its reasons therefor, can be used to elucidate it. If, despite that,
the uncertainty still persists, other relevant extrinsic
facts or
evidence are admissible to resolve it." - At 304G-H
[32] It was
contended by counsel for the applicant that because the two month
period has lapsed, the first respondent is precluded
from holding an
inquiry into her conduct. It was contended that failure by the first
respondent to hold an inquiry within the two
month period would lead
to it being barred from proceeding with an inquiry into the multiple
relationships charge, "alternatively
it is an implied term of
that judgment that should such inquiry not be held within a period of
two months, then the first respondent
was barred from proceeding with
any such inquiry".
I have some
difficulty with this argument. There seems to be no apparent reason
why the SCA would have intended failure to comply
with the two month
period to result in a permanent bar to the proceedings. If that was
the intention of the SCA then, surely, it
would have said so.
Such an order, had
it been made, would also amount to a situation of the SCA usurping
the functions of the first respondent vested
in it by statute. In
this regard it is clear that the SCA was fully alive to the relevant
statutory provisions contained in the
Act and recognised the
importance of the need to protect the public. It is convenient to
repeat the passage from paragraph [3]
of the judgment already
referred to:
"The HPCSA
must, in terms of section 3(j) of the Act, serve and protect the
public in matters involving the rendering of health
services by
persons practising a health profession. Importantly for this case,
one of the functions of the HPCSA is set out in
section 3(n) of the
Act, which is:
'To ensure the
investigation of complaints concerning persons registered in terms of
this Act and to ensure that appropriate disciplinary
action is taken
against such persons in accordance with this Act in order to protect
the interest of the public.'"
An interpretation as
drastic as the one contended for by the applicant, would bring an end
to the repeated efforts by the third
respondent, over many years, to
have his complaint, recognised by the Committee on expert medical
evidence when it instructed the
pro forma complainant to prepare the
charge sheet, heard and adjudicated upon.
[33] Moreover,
counsel for the respondents pointed out that, once the decision had
been taken by the first respondent to proceed
with theinquiry, it is
obliged to do so and cannot simply decide to call it off
(realistically, I assume, this must be subject
to no unforeseen
circumstances taking place such as the death of a crucial witness and
so on).
In
this regard, counsel for the respondents referred me to the well
known case of
Veriava
and Others v President, SA Medical and Dental Council, and Others
1985
2 SA 293
(TPD). This particular subject is discussed by the learned
judge president at 310F to 311H. I will only quote a few extracts
from
these passages:
"The
question then presents itself whether the council or the disciplinary
committee is obliged to institute an inquiry and
exercise its powers
as a quasi -judicial body if it is established by the inquiry
committee that the evidence furnished in support
of the complaint
discloses
prima
facie
evidence
of improper or disgraceful conduct. Section 41 of the Act merely
provides that the council shall have power to institute
an inquiry.
It does not provide expressly that the council shall be obliged to
institute an inquiry. The words 'shall have the
power' of themselves
only mean that it would be possible and competent for the council to
institute an inquiry into a complaint,
a power which it would
otherwise not have. The natural meaning is enabling only. There may
however be circumstances which may couple
the power with a duty to
exercise it. ... (At 310F-I and the authorities there quoted)."
At 311B-H (only
extracts quoted) the following is said:
"Members of the
medical profession have a real and direct interest in the prestige,
status and dignity of their profession
and have a right to expect of
the council to exercise its powers under the Act to protect the
prestige, status and dignity of their
profession in the event of a
complaint being lodged about conduct which is damaging to the
profession and in respect of which the
Act has given the council
powers to deal with it. Similarly a member of the public, to whom the
practitioner had stood in a professional
relationship and who is
affected by such conduct in respect of which a complaint has been
received by the council, has a right
to expect the council to
exercise its powers under the Act.
If such complaints
of professional misconduct or improper or disgraceful conduct go
unheeded, one of the main and important objects
of the Act will be
defeated or be rendered nugatory and the medical profession and
public interests in so far as members of the
public are affected by
such conduct will be unprotected. It could not have been the
intention of the Legislature that the council
should be given a
discretion to institute an inquiry on a genuine and valid complaint
so that in the case of one complaint it would
be able to use its
powers of inquiry and in the case of another identical complaint it
should be able to refuse to use its powers.
To allow this would be to
make it possible for discrimination to be exercised between different
persons.
It will consequently
in all the circumstances seem that the object of the powers conferred
on the council was to effectuate a legal
right for persons who have a
genuine and valid complaint about registered practitioners in respect
of their profession to have
their complaint inquired into.
If
this construction of the words 'shall have the power' is correct then
a council or disciplinary committee is under a legal duty
to
institute an inquiry and exercise its powers as a
quasi-
judicial
body if it is established by an inquiry committee that the evidence
furnished in support of a complaint discloses
prima
facie
evidence
of improper or disgraceful conduct."
[34]
Mr Snyckers pointed out that the legal position, as explained by the
learned judge president in
Veriava,
has
since been adopted in the statutory provisions themselves. In this
regard I was referred to Regulation 3(4) and 4(a) which read
as
follows:
"(4)
If a committee of preliminary inquiry decides, after due
consideration of the matter, that an inquiry must be held into
the
conduct of the accused, it
shall
direct
a registrar to arrange for the holding of an inquiry.
4(a)
On receipt of a directive referred to in Regulation 3(4) the
registrar
shall
issue
a notice, which is attached hereto and essentially in the form of
annexure 'A' and addressed to the
accused, stating
where and when the inquiry will be held and enclosing a charge-sheet
as formulated by the pro forma complainant."
(Emphasis added)
[35]
An interpretation of the order, such as the one contended for
by the applicant, would, in my view, not be in harmony
with the legal
position as described above. It is also not in harmony with the clear
indications in the judgment as a whole of
the SCA's concern for the
interests of the public and the need to protect those interests -
e.g. what was said in paragraph [3]
supra,
and,
for example in paragraph [34]:
"Finally, there
is a disturbing aspect in this case that I am constrained to address.
The purpose of establishing the HPCSA
was to protect the public
interest. The complaint was lodged in April 2005. The inquiry is yet
to be heard, six years later. Such
a state of affairs reflects badly
on the HPCSA and affects public confidence in it."
[36] Against this
background, I find myself in respectful agreement with the
submissions by counsel for the respondents that the
order cannot be
interpreted as evincing an intention to bring a permanent end to the
inquiry if it is not held within two months
but simply as
demonstrating the concern of the SCA about the delays and as an
effort to expedite proceedings.
[37]
I turn briefly to an argument offered on behalf of the applicant with
reference to paragraph [32] of the judgment which concludes
with the
sentence "the inquiry,
if
it continues,
can
relate only to the multiple relationships charge". (Emphasis
added) The argument, if I understood it correctly, is that
the SCA,
by using these words, recognised the fact that the inquiry will not
continue after expiry of the two month period. Of
course, the SCA
never stated this to be the position and, more importantly in my
view, never qualified order 2(b) in the same or
similar vain. As
earlier remarked, had this been the intention, one would have
expected that the learned judge of appeal would
say so.
[38] In dealing with
this argument, Mr Foden also urged me to read paragraph [32] as a
whole and in its full context: "The
principle of legality
dictates that administrative authorities such as the HPCSA cannot act
other than in accordance with their
statutory powers. The decision of
the pro forma complainant to include the misdiagnosis charge was not
'sourced in law' and has
offended against the principle of legality.
The decision has to be reviewed and nullified for want of statutory
power. It follows
that the misdiagnosis charge has to be set aside.
This inquiry, if it continues, can relate only to the multiple
relationships
charged."
It is clear, in my
view, that the main thrust of paragraph [32] is a fortification by
the SCA of its conclusions with regard to
applying the principle of
legality and the SCA is doing no more than to deal conclusively with
the only issue that was before it
(my earlier reference to that was
said in paragraph [13] of the judgment). The last sentence, relied
upon in isolation on behalf
of the applicant, does no more, in my
view, than to sum up the conclusion arrived at in the preceding words
in paragraph [32].
It only states, as does order 2(b), that the
inquiry is to proceed only on count 2. Perhaps it would have been
clearer, with great
respect, if the learned judge of appeal had used
the phrase "when it continues" instead of "if it
continues"
but, even on the present wording,
I fail to see how a
"tacit interdict" as described by counsel, can be read into
the order which, as stated, does not contain
this qualification "if
it continues", neither is such an interdict formulated in
express wording as one would have expected
to happen.
[39] It was also
argued on behalf of the respondents that, where the SCA issued a
clear and unqualified mandamus for the first respondent
to hold the
inquiry, and where it did so after duly recognising the interests of
the public, there is no room for an interpretation
which reads a
"tacit interdict" into the mandamus to the effect that the
inquiry will come to nought if not heard (and
presumably also
concluded) within the two months. Such an interpretation would fly in
the face of the clear instructions of the
SCA.
[40] On this
subject, I also find it convenient to quote and extract from the
opposing affidavit of the first and second respondents
to the
interdict application. I find myself in respectful agreement with
what is stated in these passages:
"4.5.6
The interpretation contended for by the HPCSA does not ignore the
two-month period stated by the Supreme Court of Appeal.
As appears
from the applicant's summary of events after the Supreme Court of
Appeal's judgment (paragraph
66
of
her founding affidavit) both I and the HPCSA made every reasonable
effort to hold the inquiry.
4.5.7 We were
obstructed by the applicant's technical objections and the
non-availability of panel members.
4.5.8 The attention
of the Supreme Court of Appeal was focused on one single issue:
whether a pro forma complainant has the authority
to prefer charges
against a health practitioner which were not authorised by the
committee of preliminary inquiry. This appears
from paragraph 13 of
the judgment.
4.5.9 The Supreme
Court of Appeal did not consider the following possibilities:
4.5.9.1 What would
happen if it were not possible to hold the inquiry within two months?
4.5.9.2 What would
happen if the applicant were not available to attend the hearing?
4.5.9.3 The time
periods that would be required for the filing of the charge-sheet.
4.5.9.4 The time
periods required before any pre-trial hearing to take place.
4.5.9.5
Would a new charge sheet have to be prepared or could the old one be
used as regarded
{sic)
charge
2?
4.5.10 In the
absence of specific consideration of the above points it is submitted
that the two-month period in the Supreme Court
of Appeal's judgment
must be regarded as directive in nature.
4.5.11 Taken within
the context of the judgment and the HPCSA's purpose, together with
the court's disapproval of the absence of
prosecution, the judgment
cannot be said to remove the authority of the HPCSA to hold the
inquiry."
[41] During the
debate before me, Mr Beltramo pointed out that, before the SCA, there
was some discussion about the time that would
be reasonably required
for the holding of the inquiry. That is how the two-month period was
included in the order. Mr Snyckers,
who was also present at the time,
conceded that such a debate took place but he emphatically stated
that there was no question
of a "tacit interdict" having
been proposed, considered or introduced in any manner whatsoever. Had
this happened, it
would have been vociferously opposed.
[42]
Mr Snyckers reminded me that the mandamus issued by the SCA against
the first respondent (order 2(b) is a clear mandamus) is
one
od
foctum praestandum.
In
this case it is convenient to refer to what is stated by the learned
authors Herbstein and Van Winsen:
The
Civil Practice of the High Courts of South Africa
5
th
edition vol 2 page 1022:
"When
a judgment is one
ad
factum praestandum,
namely
in order to perform some Act, for example pass transfer, remove an
obstruction or vacate premises, the judgment creditor
cannot seek its
enforcement by the levying of a writ. His remedy is to apply for the
committal of the judgment debtor for contempt
of court, or when
appropriate, to seek an order authorising the deputy sheriff to take
the necessary steps, with or without the
assistance of the police."
Counsel
pointed out that it has been held that the principle also applies in
the case of a mandamus issued against a public body
where the remedy
lies in contempt proceedings. See, for example,
Nyathi
v MEC for Department of Health, Gauteng
2008
5 SA 94
(CC) 118A-B and 119D-F. See also Herbstein and Van Winsen op
cit at 1106 and further.
[43]
It was submitted by Mr Foden on behalf of the first and second
respondents that where no provision was made for what would
happen if
the inquiry were not to be held in time, the most likely
interpretation is that the inquiry must be held, and if it is
not
held within the two months, then the public (third respondent) would
have recourse, in this case, in the form of contempt proceedings,
already issued as explained. It was argued by counsel that one must
assume that the SCA would not order somebody to do something
but
agree that it was in order if it was not done (to the detriment of
the public under these circumstances and given the clear
objective of
the Act to protect the interest of the public).
Conclusion
[44]
In all the circumstances, I have come to the conclusion that the
interpretation of the order of the SCA contended for by the
applicant
falls to be rejected so that the application must fail and the
counter-application, providing for the inquiry to be held
nevertheless, ought to be granted.
[45] The interested
parties, in this case, more particularly, the applicant and the third
respondent, have the necessary remedies
at their disposal, as
described, to ensure the speedy finalisation of the inquiry without
any further undue delay.
Costs
[46] It is clear
that there was some uncertainty amongst the parties about how to
interpret the order of the SCA.
[47]
I accept, for present purposes, that the efforts to obtain clarity
were
bono fide
on
the part of all concerned.
[48] In the
circumstances, I am not inclined to mulct the unsuccessful applicant
with an adverse costs order.
[49] In these,
somewhat unusual, circumstances, it seems to me that justice will
best be served if each party is to pay his or her
or its own costs.
The Order
[50] I make the
following order:
1. The application
is dismissed.
2. The
counter-application of the first and second respondents is upheld,
and they are permitted and directed, as soon as is reasonably
and
practically possible, and without undue delay, to hold a professional
conduct inquiry into the applicant's alleged misconduct
solely in
respect of Count 2, despite the passage of two months since the
decision of the Supreme Court of Appeal under case number
786/2010.
3. Each party is
ordered to pay his, her or its own costs flowing from the application
and the counter application.
W
R C PRINSLOO
J
UDGE
OF THE GAUTENG DIVISION. PRETORIA
Heard
on
:
17 April 2014
For
the Applicant
:
Adv P Beltramo SC
Instructed
by
:
Bowman Gilfillan Attorneys
For
the 1
st
and 2
nd
Respondent
:
Adv R A Foden
Instructed
by
:
Matabane Incorporated
For
the 3
rd
Respondent
:
Adv F Snyckers SC
instructed by:
Darryl Furman and Associates
c/o Morris Pokroy
Attorney
Date
of Judgment
: