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[2014] ZAGPPHC 345
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Health Professions Council of South Africa v Professional Conduct Committee of The Health Professions of South Africa and Another (46326/2012) [2014] ZAGPPHC 345 (10 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 46326/2012
DATE:
10/6/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
HEALTH
PROFESSIONS COUNCIL OF SOUTH
AFRICA
…...............................................................................................................................
Applicant
and
THE PROFESSIONAL
CONDUCT COMMITTEE OF
THE
HEALTH PROFESSIONS OF SOUTH
AFRICA
..........................................
First Respondent
ANN-MARIE
RENCKEN-WENTZEL
................................................................
Second Respondent
JUDGMENT
POTTERILL
J
[1]
The applicant is applying for the following:
“
(1)
An order reviewing the ruling of the Professional Conduct Committee
to stay the enquiry of the second respondent pending the
outcome of a
custody dispute to which second respondent is not a party;
(2)
An order setting aside the decision
of the Professional Conduct Committee of staying the enquiry into
conduct of the second respondent
so that the applicant should be
placed in the position to set the matter down for a proper enquiry in
terms of the Health Professions
Council; and
(3)
Costs of the application.”
[2]
The second respondent was served with a notice in terms of Regulation
4(a) of the Regulations published under Government Notice
Number
R.765 of 2001 of an enquiry into the conduct of this respondent by a
Professional Conduct Committee of Professions Board
for Psychology.
The charge sheet set out that the second respondent is guilty of
unprofessional conduct during court proceedings
between a Ms.
Williams and her husband Mr. Williams in that
inter
alia
she made written findings and
conclusions about Mr. Williams without assessing and consulting him
personally to verify and/or establish
the truth of the allegations
against him.
[3]
At the date of the hearing the second respondent’s counsel
raised the point
in limine
that
the disciplinary hearing is premature due to urgent proceedings that
were instituted in the South Gauteng High Court in April
of 2009.
They proposed a stay of this hearing until the urgent application
relating to Mr. and Mrs. Williams-Ward (new married
surname) and
their biological children. Another strong argument forwarded on
behalf of the second respondent’s contention
that the
disciplinary hearing should be stayed read as follows:
“
We
do not want, and we don’t act on behalf of Melissa, we don’t
act on behalf of the Ward family, but we have a responsibility
from
our side not to prejudice any potential rights of that young child,
Melissa, or for that matter any of the parents.
And we don’t
want to see these proceedings as a weapon in terrorem in a pending
legal action that has not been resolved to
this date. And that is our
simple point, as to why we say this may well be premature.”
[p32 of the record]
[4]
The main considerations of the first respondent for granting a stay
of the hearing were stated as follows:
“
The
Committee is loath to be used as a possible tool to attack the
credibility of an expert in a matter of vital importance and
concerning the well-being and interests of minor children.”
(page 24 of the finding and ruling of the Committee as set out
in
lines 9-11)
[5]
I was informed from the bar that the rules/regulation of the first
respondent has no provisions for an adjournment or stay of
a
disciplinary hearing.
[6]
On behalf of the applicant it was argued that the effect of the stay
pending the finalisation of a High Court matter wherein
the parties
in the High Court matter is not proceeding with has the effect of a
final stay. The applicant can accordingly not set
the matter down
until a court reviewed and set aside the stay of proceedings granted
by the respondent. The stay should accordingly
be uplifted.
It was further submitted that it was irrational or grossly
unreasonable to have stayed the proceedings because
there was no
lawful reason or cogent grounds to do so. Although there is an
opposing affidavit from the second respondent
she agrees that the
proceedings before the first respondent against the second respondent
should resume without delay. Prayer
1 should thus be granted.
There is however a contention that the first respondent was not wrong
in granting the stay of the
proceedings and prayer 2 is thus in
contention.
[7]
The Professional Conduct Committee of Professions Board for
Psychology is a body that is called into life in terms of
Regulations.
It would thus not have any inherent jurisdiction,
however it would always have the right to entertain an application
for postponement
by the complainant or
pro
forma
prosecutor on good cause shown.
An example that comes to mind is when the complainant or
pro
forma
prosecutor is in a serious
accident the morning of the hearing. The Committee would not be
barred from granting a postponement to
a later date as one of its
options. The same would apply if witnesses could not be present.
[8]
A stay in proceedings is however another kettle of fish and should be
used sparingly.
In casu
the
submissions on behalf of the applicant is correct; there were
no cogent grounds or lawful reasons to stay the proceedings.
In
Dilworth v Reichard
(2002)
4 All SA 677
(W)
Claassen J referred to
and applied
Davis v Tipp NO and
Others
1996 (1) SA 1152
(W)
.
In the last mentioned matter the applicant was employed by the
Greater Johannesburg Transitional Metropolitan Council.
The
Council convened an enquiry in terms of its standard conditions of
service into allegations of bribery and corruption and theft
which
had been made against the applicant. The applicant objected to
answering questions as it might affect his constitutional
rights to
remain silent and not to incriminate himself at a pending criminal
trial and requested a postponement of the enquiry
until after
completion of the criminal trial. The chairman of the enquiry
rejected his contention as well as his request
for a postponement as
a result whereof the applicant brought an application before the High
Court for an order staying the proceedings
of the enquiry until after
completion of the criminal trial. It was submitted before
Nugent J that if the enquiry proceeded
the applicant might of
necessity be called upon to answer evidence of criminal conduct given
against him if he wished to avoid
a finding of misconduct which could
in turn be used by the State in the pending criminal proceedings.
Nugent J (as he then
was) at 1158G-1159B found as follows:
“
The
right to remain silent derives from an abhorrence of coercion as a
means to secure convictions by self-incrimination, and it
exists to
ensure that there is no potential for this to occur. It achieves this
by protecting an accused person from being placed
under compulsion to
incriminate himself; not by shielding him from making legitimate
choices ….
In
the present case the applicant may well be required to choose between
incriminating himself or losing his employment. If he loses
his
employment that is a consequence of the choice which he has made but
not a penalty for doing so. It will be the natural consequence
of
being found guilty of misconduct, and not a punishment to induce him
to speak. Hard as the choice may be, it is a legitimate
one which the
applicant can be called upon to make and does not amount to
compulsion. In my view his right to silence does not
shield him from
making that choice.”
[9]
In the
Dilworth
matter
supra
an
exception was raised against a plaintiff’s particulars of claim
in a civil matter. Claassen J once again relies on the
Davis
matter
supra
and quotes from page 1157E-G:
“
Civil
proceedings invariably create the potential for information damaging
to the accused to be disclosed by the accused himself,
not least so
because it will often serve his interests in the civil proceedings to
do so. The exposure of an accused person to
those inevitable choices
has never been considered in this country to conflict with his right
to remain silent during the criminal
proceedings. Where the Courts
have intervened there has always been a further element, which has
been the potential for State compulsion
to divulge information. Even
then the Courts have not generally suspended the civil proceedings
but in appropriate cases have rather
ordered that the element of
compulsion should not be implemented.”
The
upshot of this judgment is thus that where criminal proceedings are
pending civil trials are not to be postponed to accommodate
criminal
hearings on the basis of the right to remain silent.
[10]
I cannot agree with the second respondent’s contention that the
stay does not amount to a permanent stay. Although the
High Court is
the upper guardian of children a High Court cannot in civil
litigation act
mero motu
if
parties are not proceeding with a matter. This will only be the
situation where a Judge of the High Court has been tasked with
case
management of such a matter. It is thus very dangerous to stay
proceedings pending the finalisation of a High Court civil
matter as
parties may abandon the litigation; as in this matter they have. Even
though this only came to light after the decision
this is a factor
that the first respondent will always have to take into
consideration. It would thus always be wise to postpone
a matter to a
specific date so as to circumvent a stay which would then result in a
permanent stay. A permanent prolonged
stay does not serve the
public interest in that it is trite that disciplinary enquiry
proceedings should be adjudicated expediently.
[11]
I also cannot agree with the argument of the second respondent that
the decision to stay the proceedings was lawful, reasonable
and fair
in the particular circumstances. The disciplinary enquiry although
linked in that the second respondent made a report
pertaining to the
children for the High Court proceedings is very distinct to the High
Court proceedings. The second respondent
was not a party to the
proceedings and a High Court will on the evidence presented to the
High Court decide the credibility of
an expert witness or not.
The mere fact that there was a disciplinary hearing against the
expert witness will not
per se
affect
the credibility of the witness in the High Court. It is the duty of
the High Court Judge to assess the credibility of the
witness after
due cross-examination.
[12]
I accordingly make the following order:
12.1
An order reviewing the ruling of the Professional Conduct Committee
to stay the enquiry of the second respondent pending the
outcome of a
custody dispute to which second respondent is not a party;
12.2
An order setting aside the decision of the Professional Conduct
Committee of staying the enquiry into conduct of the second
respondent so that applicant should be placed in a position to set
the matter down for a proper enquiry in terms of the Health
Professions Act;
12.3 Costs of this
application, which include the costs consequent upon the employment
of two counsel.
__________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
CASE
NO: 46326/2012
HEARD
ON: 5 June 2014
FOR
THE APPLICANT: ADV. J.G. RAUTENBACH SC AND N. MAKHUBELA
INSTRUCTED
BY: Mkhonto & Associates Inc.
FOR
THE SECOND RESPONDENT: ADV. E. VAN VUUREN
INSTRUCTED
BY: Webber Wentzel Attorneys
DATE
OF JUDGMENT: 10 June 2014