Simon v South African Pharmacy Council and Others (9723/03) [2006] ZAWCHC 14 (7 April 2006)

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[2006] ZAWCHC 14
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Simon v South African Pharmacy Council and Others (9723/03) [2006] ZAWCHC 14 (7 April 2006)

IN
THE HIGH COURT OF SOUTH AFRICA
CAPE
OF GOOD HOPE PROVINCIAL DIVISION
Case
No 9723/03
In
the matter between:
RIAAN
SIMON
Applicant
and
SOUTH AFRICAN PHARMACY COUNCIL
First
Respondent
MARIAN CASSIMJEE
Second Respondent
ADVOCATE D COETZEE
Third
Respondent
JUDGMENT: 7 APRIL 2006
LE
GRANGE AJ
Introduction
This is an appeal in terms of section 45(3) of the
Pharmacy Act, No 53 of 1974 (the Act) against the decision of an
appeal committee
of First Respondent, the South African Pharmacy
Council (the Council), which was chaired by Third Respondent on
22 September 2003.
Background
The Applicant, a pharmacist, is registered in terms of
the provisions of the Act and was previously the co-owner of a
pharmacy in
Vasco, Cape Town. The Applicant, over a period of two
years, was party to a number of transactions in which at the request
of a
customer, an invoice was made out containing a false description
of the goods and products supplied to that customer. The purpose
of
this was to enable the customer to lodge a claim for such goods and
services with his or her medical aid scheme.
The Applicant was convicted in the Magistrate’s Court
on 45 charges of fraud and sentenced to 18 months imprisonment,
suspended
for a period of 5 years on certain conditions.
Pursuant to the conviction and sentence in the
Magistrate’s Court the Council instituted disciplinary proceedings
under
Section 39
of the
Pharmacy Act, against
the Applicant.
The Applicant was found guilty of misconduct on 14
November 2001 by a disciplinary committee of First Respondent which
was chaired
by the Second Respondent and the sanction imposed was
that he be struck from the Register of Pharmacists and pay R 3 840,11
towards
the costs of the formal disciplinary inquiry.
The Applicant lodged an appeal against the sanction
imposed by the disciplinary committee and the appeal committee, which
was chaired
by Third Respondent dismissed the appeal.
The Applicant now appeals to this Court in terms of
section 45(3) of the Act, the decision of the appeal committee of
First Respondent.
In argument before me, counsel for Applicant submitted
that the first Respondent’s sanction unreasonably limits
Appellant’s participation
in his chosen trade, profession or
occupation and the decision, being in the nature of administrative
action, was arbitrary, capricious
or irrational and the sanction is
inconsistent as regards sanctions imposed for similar offences. He
also contended that an appeal
in terms of Act 45(3) of the Act is a
rehearing on the merits and that it is not confined to the more
narrow grounds upon which a
matter is traditionally brought on
review. Counsel for the Applicant also referred to the
Pharmacia
,
which is an official publication of First Respondent where
various cases of misconduct and the sanctions imposed are published,
to
illustrate the inconsistency of the sanction imposed on the
Applicant.
Counsel for the First Respondent, submitted that the
application is indeed an appeal in the full sense of the word and
that the rehearing
of the matter is limited to the evidence on which
the decision under appeal was given. He also contended that as far as
sanctions
or penalties imposed by professional tribunals, such as the
Council is concerned, the power of the Court to interfere in the
exercise
of a discretion by a tribunal is very limited.
(Thuketana
v Health Professions Council of South Africa 2003(2) SA 628 (T) at
642G).
It was also contended on behalf of First Respondent that
no reference was made to the cases which Applicant referred to in the
Pharmacia
, at either the disciplinary proceedings or on appeal
to the appeal committee, and that it can therefore not be raised for
the first
time on appeal as the appeal is
limited
to the
evidence on which the decision under appeal was given.
The Principles Applicable to the Appeal
The principles applicable to an appeal under
section
45(3)
of the
Pharmacy Act are
well settled in our law. It has
already been held in a series of decisions that the nature of an
appeal to the Court under
section 45(3)
of the
Pharmacy Act is
not
limited to the narrower grounds of a review which means that the
Court’s power to interfere is not limited to cases in which
irregularities have occurred. It is, indeed, an appeal in the full
sense of the word which means a re-hearing of the matter on the
merits but one which is limited to the evidence on which the decision
under appeal was given. (
Simaan v South African Pharmacy Board
1980 (1) SA 764
(T) at 768F-G
and
Rosenberg v South African
Pharmacy Board
1981 (1) SA 22
(A) at 29E-F)
The merits of the appeal
The Applicant at the time of the misconduct enquiry,
elected not to appear before the disciplinary committee, but through
his attorneys
furnished the committee with written representations in
which he pleaded guilty to the charges of unprofessional conduct
against
him. Included in the written representations were also all
the Applicant’s mitigating factors which were placed before the
committee
to consider, before pronouncing on the sanction.
The Applicant in his founding affidavit also referred to
the following personal circumstances:
He is employed by a Medical Aid Scheme and his
employment involves
inter alia
duties as a pharmacist, and if
he is struck from the Register of Pharmacists this would, in all
probability, result in his employer
terminating his employment. He
also supplements his income by doing locum work at a local Pharmacy
and if he is struck from the
register, he would be precluded from
working as pharmacist on a locum or part-time basis.
He owns no assets or investments which could be
utilised to provide for his financial needs and is therefore
dependant on earning
a monthly income. The demise of the Pharmacy in
Vasco, which he co-owned, and the subsequent criminal proceedings,
had the effect
of wiping him out financially.
He is divorced and has one minor child who is dependant
on him.
He does not have the experience or qualifications to
take up any alternative employment, if precluded from working as a
pharmacist.
The only other type of employment which may be open to
someone with his experience is that of sales representative with a
pharmaceutical
company. These positions are, however, highly sought
after and pharmaceutical companies normally give preference to
persons with
sales experience and to persons younger than himself.
As regards positions wholly unrelated to the
pharmaceutical industry, the possibility is for him to attempt to
secure some junior
position not requiring any particular skills with
a large commercial entity. The opportunity of securing such a
position is remote
having regard to his age and the affirmative
action policies implemented by large scale commercial entities.
Counsel for the Applicant submitted that while it is
open to any trade or profession to regulate the conduct of those
practicing that
trade or profession, and to prescribe that in certain
circumstances a person will be excluded from that profession, such
regulations
and prescriptions and the manner in which they are
applied, should not unreasonably limit participating in that trade,
profession
or occupation. It was contended that First Respondent’s
sanction is unreasonable, having regard to the facts of this matter,
and
limits Applicant’s participation in his chosen trade,
profession or occupation and constitutes a constitutionally
unsustainable
infringement of his rights in terms of section 22 of
the Constitution. It was also contended by Applicant’s counsel that
in exercising
its powers to regulate the pharmacy profession and
visit certain forms of misconduct with particular sanctions, the
Council should
also comply with the administrative justice
requirements found in Section 33 of the Constitution, and in Section
6 of the Promotion
of Administrative Justice Act, no 3 of 2000
(PAJA). Section 6(2) of PAJA sets out a number of grounds on which a
court can interfere
with an administrative action,
inter alia
if the action was taken arbitrarily or capriciously, or was not
rationally connected to the purpose for which it was taken, or to
the
reasons given by the administrator. Section 6(2)(h) creates an
additional ground on which administrative action can be set aside,
namely, that such action “
is so unreasonable that no reasonable
person could have exercised the power or performed the function
”.
Section 22 of the Constitution provides that every
citizen has the right to choose their trade, occupation or profession
freely. The
practice of trade, occupation or profession may be
regulated by law. The Applicant has in fact exercised his right under
section
22 of the Constitution to freely choose his occupation and
profession. However, every right has an obligation and every right in
the Bill of Rights may be limited to the extent that the limitation
is reasonable and justifiable in an open and democratic society
based
on human dignity, equality and freedom.
In determining whether the sanction of First Respondent
was unreasonable or not, it is important to have regard to the
Applicant’s
personal circumstances, the seriousness of the offence
he committed and the objects of the Council, which had been entrusted
to it
by section 3 of the Act, which provides
inter alia
to
uphold and safeguard the right of the general public to universally
accepted standards of pharmacy practice; to maintain and develop
acceptable standards in the profession; to promote, transparency to
the profession and the general public in achieving its objects
and to
maintain and enhance the dignity of the pharmacy profession.
I am in agreement with the dictum of Mynhardt J in the
Thuketana
matter
(
supra
)
that the power
of this Court to interfere in the exercise of a discretion by a
tribunal, in this instance the Council, is very limited.
It is my
view that a Court of appeal will only interfere if it is shown, that
the tribunal, in imposing a sanction, misdirected itself
in such a
nature, degree or seriousness that it shows, directly or by inference
that the tribunal did not exercise its discretion
at all or exercised
it improperly or unreasonably.
The Second Respondent, in her answering affidavit before
the appeals committee, stated the following at page 82 of the record:
‘
I and the Committee did in fact exercise our
discretion reasonably and properly and we took all the relevant facts
and circumstances
into account and made a balanced assessment
thereof. We took into account the fact that the appellant pleaded
guilty, his personal
circumstances, as well as the fact that he had
already been found guilty by a criminal court of law and had a
criminal record, which
was a punishment in itself. We also took into
account the degrading effect of the whole procedure in terms of the
Criminal Procedure
Act and the anguish which the proceedings must
have had on the appellant. However, the gravity of the offence and
the factors enumerated
in the preceding paragraph above unfortunately
outweighed the mitigating factors and personal circumstances of the
appellant. After
much deliberation and consideration the
Disciplinary Committee came to the conclusion that the appropriate
penalty should be the
erasure of the appellant from the relevant
register.’
The Third Respondent, as chairperson of the appeal’s
committee, in coming to its finding made the following remarks at
page 223
–224 of the record:
‘
This Committee has considered the following
aspects in coming to its conclusion. In the first instance, the facts
as they appear from
the appeal record that served in front of the
Disciplinary Committee. It must be said that the contents of the
appeal record, in
particular the facts before the Disciplinary
Committee, was discussed by the members of this Committee.
Secondly, this committee considered the arguments
raised by the representatives of the respective parties for which the
committee
is thankful.
In the third instance this committee considered the
authorities to which it was referred by the respective
representatives.
In coming to its conclusion the Committee, this
Appeal Committee that is, found one aspect to be important, but by
extenuating this
aspect the impression should not be created that
this Committee did not consider all the relevant facts. The
outstanding issue is
the fact that the appellant had pleaded guilty
to 45 charges of fraud. The element of dishonesty is one which, in
the opinion of
this committee, justified the finding, or sentence
rather imposed by the Disciplinary Committee. It therefore follows
that the appeal
is dismissed.’
I cannot find, having regard to both decisions of the
disciplinary and appeals committee of First Respondent, that they
exercised
their discretion in an arbitrary, capricious or irrational
manner.
Conclusion
The applicant, although a first offender, committed 45
counts of fraud over a period of 29 months. Civil society expects a
professional
person in the position of the Applicant to perform his
duties and to submit medical aid claim funds with honesty and
integrity. The
Applicant, by his conduct, brought the honor of his
chosen profession into disrepute.
Having regard to the Applicants personal circumstances,
the seriousness of the offence and the objectives of the Council
entrusted
to it by law, I cannot find that the appeals committee of
First Respondent misdirected itself at all or exercised its
discretion
improperly or unreasonably.
Much emphasis was placed on the different sanctions that
the Council imposed on offenders committing similar offences as
published
in the
Pharmacia
. Mere reference to this publication
is insufficient as it is not known what the circumstances were that
obtained before the committee
arrived at the sanction they did. The
extracts are of little help as they do not contain a proper summary
of the reasons for the
sanctions imposed and therefore reference to
it serves no useful purpose.
It follows that the appeal of the Applicant cannot
succeed.
In the result the appeal is dismissed with costs,
including costs of two counsels.
_______________
LE GRANGE AJ