South African Veterinary Council and Another v Veterinary Defence Association (112/2002) [2003] ZASCA 27; [2003] 2 All SA 156 (SCA) (27 March 2003)

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[2003] ZASCA 27
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South African Veterinary Council and Another v Veterinary Defence Association (112/2002) [2003] ZASCA 27; [2003] 2 All SA 156 (SCA); 2003 (4) SA 546 (SCA); 2003 (7) BCLR 697 (SCA) (27 March 2003)

REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Case number:112/2002
Reportable
In the matter between:
SOUTH AFRICAN VETERINARY COUNCIL
First Appellant
RJ NAGEL NO
Second Appellant
and
VETERINARY DEFENCE ASSOCIATION
Respondent
CORAM
: MARAIS, SCHUTZ,
FARLAM, MTHIYANE JJA, et HEHER AJA
HEARD
: 28 FEBRUARY 2003
DELIVERED
: 27 MARCH 2003
SUMMARY:
SA Veterinary Council –
locus
standi
of Veterinary Defence Association to review
disciplinary action against member – disciplinary inquiry –
correct approach where
respondent does not testify – when failure
to cross-examine significant.
_____________________________________________________________
JUDGMENT
_____________________________________________________________
FARLAM JA
[1]
This is an appeal against
a judgment and order granted by Roux J, sitting in the Transvaal
Provincial Division of the High Court,
in terms of which a finding
made by a tribunal appointed by the first appellant, the South
African Veterinary Council, in terms of
section 12(1) of the
Veterinary and Para-Veterinary Professions Act 19 of 1982, as amended
(‘the Act’), to the effect that Dr
SB Krawitz, a member of the
respondent, the Veterinary Defence Association, was guilty of
unprofessional, improper or disgraceful
conduct, was set aside with
costs.
[2]
The first appellant is a
statutory body established by section 2 of the Act.
[3]
The second appellant is
Raynier Johannes Nagel, who was the chairman of the tribunal which
found Dr Krawitz guilty.
[4]
The respondent is the
Veterinary Defence Company Ltd, a public company registered in terms
of the Companies Act 61 of 1973, which,
according to the founding
affidavit deposed to by its chairman, ‘trades’ as ‘the
Veterinary Defence Association’.
[5]
The respondent brought an
application in the court
a quo
for an order setting aside the finding against Dr Krawitz, who is one
of its members. It alleged that it had
locus
standi
in terms of section 38(e),
alternatively section 38(c) of the Constitution. The basis on which
it sought relief was its contention
that, despite the absence of a
prima facie
case
against Dr Krawitz, he had been found to be guilty because he had
failed to testify at the inquiry.
[6]
The application was
opposed by the appellants on two grounds:
first,
that the respondent lacked
locus standi
to
bring the application because it had no direct and substantial legal
interest in the proceedings, which should have been brought
by Dr
Krawitz himself, and because section 38(c) and (e) of the
Constitution did not apply; and
secondly,
that no reviewable irregularity had taken place.z
[7]
In the charge which Dr
Krawitz was called upon to answer it was alleged that he, being a
veterinarian registered in terms of the Act,
had acted
unprofessionally, improperly or disgracefully in that he had admitted
as a patient a dog, which was the property of a Mr
Potgieter and a Ms
Kruger, but failed to render the necessary timeous veterinary
assistance to it. In the alternative it was alleged
that he failed to
refer the dog elsewhere when he should have done so.
[8]
At the inquiry the
pro
forma
prosecutor called the owners of the dog
as witnesses, whereafter the tribunal of its own motion called Dr
Krawitz’s receptionist.
[9]
The first witness, Mr
Potgieter, told the inquiry that the dog, which had apparently been
struck by a motorcar while roaming on a
highway and had been away
from its home without food or drink for three days, was taken to a
veterinarian, not Dr Krawitz, who gave
the dog an injection and said
that it had to be watched and if it had not come right within a week
or two it was to be brought back.
[10]
About six days later,
when the witness noticed that the dog’s breathing had become
laboured and it started getting sick, he took
the dog to Dr Krawitz’s
clinic between 10.30 and 10.45 am. There his receptionist said that
Dr Krawitz ‘was in theatre and would
attend to [the dog]
thereafter’. Mr Potgieter left the dog in the clinic. Later he
telephoned in order to ascertain when it would
receive treatment. As
the clinic was closed at that stage, he left a message on the
answering service, on which a message had been
recorded to the effect
that the service was frequently checked for messages. While he could
not remember exactly what message he
had left, the effect was that
the veterinarian or his receptionist was to get back to him urgently
as he needed to retrieve his dog
if it was not going to receive
attention for some time. He stated that he also went back to the
clinic and found it closed. He telephoned
the clinic at about 3.05 pm
and was told that the doctor was still unavailable. When he said that
he wished to collect his dog so
that it could get the medical
attention it needed the receptionist said that there was no chance of
his getting the animal but that
Dr Krawitz would telephone him. He
also stated that Dr Krawitz sent Ms Kruger and himself an invoice in
which he claimed fees for
x-rays and cremation and R32.21 for
treatment.
[11]
Ms Kruger testified that
at about 4 pm on the day in question she received a telephone call
from Dr Krawitz, who told her that the
dog had died. He also stated
that he had done a post-mortem and that he had taken x-rays which
showed that the dog had had a hernia.
He asked Mr Potgieter and Ms
Kruger to come to his rooms that evening to view the x-rays. They did
so but after waiting for some
time (according to Mr Potgieter about
45 minutes) they left.
[12]
After the
pro
forma
complainant had closed her case Dr
Krawitz’s attorney closed the case for the defence and asked for
his acquittal. He stated that
his application was based on the fact
that there was in his view no evidence before the tribunal upon which
Dr Krawitz could be found
guilty.
[13]
The tribunal then ruled
that before it gave its verdict it wished to call Dr Krawitz’s
receptionist, as it put it, ‘to clarify
the time issue when the dog
was taken up into the possession of the clinic and the availability
of Dr Krawitz thereafter after this
dog was admitted to the clinic’.
[14]
Ms Chilton, Dr Krawitz’s
receptionist, thereafter testified. She said that Mr Potgieter and
the dog came to the surgery ‘probably
between 11.00 and 11.30’
and that she told Mr Potgieter that Dr Krawitz was in theatre doing
surgery but that he would see the
dog ‘between surgery and
afterwards’. She said that she expressly gave Mr Potgieter the
opportunity to try another vet and mentioned
that as far as she knew
all the veterinarians were in surgery at that time. She stated that
when she left, between 12.15 and 12.30
pm, Dr Krawitz was still busy
and that he had been operating on the same dog throughout. She had
asked one of the men working at
the clinic to take the dog to their
hospital and had told Dr Krawitz, while he was operating, that there
was a dog which needed to
be seen. In regard to the telephone
answering service, she said that it is switched on at 12 noon and
switched off again at 3.00
pm: it tells a person who calls to
telephone Dr Krawitz on his cell phone. When asked by a member of the
tribunal whether, when she
told Dr Krawitz in theatre about the dog,
she indicated to him that its condition was serious, she replied that
she merely said that
there was a patient, without commenting on its
condition. When cross-examined by the
pro
forma
complainant she elaborated on what she
had said to Mr Potgieter when he brought the dog to the clinic: Dr
Krawitz would look at the
dog when he had a chance. She also said
that Mr Potgieter did not give her an indication that this was an
emergency but wanted a
second opinion on the dog’s condition from
Dr Krawitz.
[15]
At the conclusion of Ms
Chilton’s evidence the second appellant gave Dr Krawitz’s
attorney an opportunity to reopen his case but
he did not wish to do
so. He then repeated his earlier submission that Dr Krawitz should be
acquitted because there was no basis
in the evidence that had been
led upon which the tribunal could find that the allegations against
Dr Krawitz had been proved.
[16]
It appears from the
transcript of the inquiry that when he was originally informed of the
allegations made against him, Dr Krawitz
had made an affidavit, as
had Ms Chilton, and these had been sent to the council before the
charge sheet was drawn up and the summons
issued.
[17]
In the judgment
delivered at the end of the inquiry the second appellant referred to
the following dictum by Van Dijkhorst J in
Prokureursorde
van Transvaal v Kleynhans
1995(1) SA 839(T)
at 853 G-H:
‘Uit die aard van die dissiplinêre verrigtinge vloei voort dat van
’n respondent verwag word om mee te werk en die nodige toeligting
te verskaf waar nodig ten einde die volle feite voor die Hof te plaas
sodat ’n korrekte en regverdige beoordeling van die geval
kan
plaasvind. Blote breë ontkennings, ontwykings en obstruktionisme
hoort nie tuis by dissiplinêre verrigtinge nie.’
[18]
The second appellant
said his interpretation of this passage differed from that argued by
Dr Krawitz’s attorney.
He proceeded:
‘the crux of what was said by the judge is that in disciplinary
actions it is expected of the respondent to go along with the rules,
give the necessary information.
... [I]t is expected from a respondent to co-operate and assist the
court so that all relevant facts [are] placed before you. Meaning
that if there is specific knowledge into a specific matter it is
expected of that respondent to play along and give that information.
Dr Krawitz is the only one that can submit certain facts. Obviously
then in this matter the only one that does have the knowledge
of the
real facts regarding time and the timeous assistance is Dr Krawitz.
He elected not to testify.
His statement that was handed in with the bundle does not have the
necessary evidential value because the contents of that statement
[were] never proved to be correct. Dr Krawitz himself never testified
regarding that matter nor was there any cross-examination to
test the
correctness thereof.
His failure to co-operate and to assist into his behaviour when and
at what time he rendered any assistance to [the dog] he leaves
the
Tribunal with no option but to find that he failed to render the
necessary veterinary assistance timeously.
What happened to the animal after it was admitted into the hospital
until such time that it died, the only one with that knowledge,
if
the necessary assistance was given or not and if it was timeously or
not, is Dr Krawitz. [His] failure to testify leaves the tribunal
with
the only inference from that, due to his failure to testify that Dr
Krawitz failed to render the timeous veterinary assistance
to [the
dog], the property of Mr Potgieter and Ms Kruger.
Therefore you are found GUILTY AS CHARGED.’
[19]
Subsequently the second
appellant supplemented the judgment given during the inquiry. He
pointed out that the finding as reflected
on the record should be
corrected to reflect that Dr Krawitz was found guilty as charged on
the main allegation. It is thus clear
that Dr Krawitz was found
guilty of acting unprofessionally, improperly or disgracefully in
failing to render the necessary timeous
veterinary assistance to the
complainant’s dog after it had been admitted to his clinic.
(It is noteworthy that the tribunal does not appear to
have applied its mind to the question whether the conduct of which it
found
Dr Krawitz guilty was unprofessional or improper or
disgraceful. These adjectives are used disjunctively in section 33(1)
of the
Act and it is incumbent, on a disciplinary tribunal
functioning under the section, one would think, to specify which
adjective was
appropriate. The point was not taken by the respondent
and need not be considered further in this case.)
[20]
In his supplementary
reasons the second appellant proceeded to deal with certain
criticisms of the finding which were contained in
a draft affidavit
prepared for Dr Krawitz’s signature and which was sent to the first
appellant.
[21]
In paragraph 8 of the
draft affidavit the following appears:
‘I was advised that as no
prima facie
case had been made
against me, I need not tender evidence to the Tribunal which decision
was conveyed to the Tribunal members.’
[22]
The second appellant
responded to this paragraph as follows:
‘This inquiry is not a criminal case and to speak of “no
prima
facie
case had been made against me” is not correct. It is an
inquiry into transgressions and it is expected of both sides involved
to
place the relevant facts before the Tribunal for evaluation for
the purpose of making a finding from it.’
[23]
Later in the
supplementary reasons, the second appellant said:
‘... [W]hen the patient was admitted to the clinic it was still
alive. Dr Krawitz was aware that the dog was admitted. Ms Kruger
was
later informed telephonically by Dr Krawitz that the dog died.
A patient does not just die from nothing. Dr Krawitz was the only one
that was in a position to tell the tribunal if the necessary
timeous
treatment was given to the patient and notwithstanding that, the
animal still died. The cause of death of the patient is
something
that occurred later. The patient was admitted at 11.00. Dr Krawitz
informed Ms Kruger at 16.00 that the animal died, five
hours
[elapsed] from the time that the patient was admitted and it was
therefore of great importance to know what happened during
that
period of time. Dr Krawitz is the only one able to answer that and
therefore it is expected of him to co-operate and to assist
that all
relevant facts are placed before the tribunal. He elected not to do
so. The evidence tendered, therefore, [proved] that
Dr Krawitz failed
to render the necessary timeous veterinary assistance to [the dog] .
. .’
[24]
After quoting a number
of decisions on disciplinary proceedings, the second appellant said:
‘If the respondent is of the opinion that evidence against him is
weak or inconclusive he may remove any doubt by denying it under
oath
which will result in giving him the benefit of such doubt at the end
of the hearing. The rules of natural justice [need] to
be adhered to,
which means that, in disciplinary hearings, both sides must be viewed
fully.’
[25]
Roux J held that there
was no evidence to support the conviction and that the finding of the
tribunal had accordingly to be set aside:
reference was made in this
regard to
Mpemvu and Others v Nqasala
(1909)
26 SC 531
,
SA Medical and Dental Council v
McLoughlin
1948(2) SA 355 (A) at 393 and
SA
Medical and Dental Council v Lipron
1949(3)
SA 277 (A) at 283. He proceeded to distinguish the
dictum
in
Prokureursorde van
Transvaal v Kleynhans, supra,
upon which the
second appellant had relied, holding that it was not authority for
the proposition that where there are no facts proven
to support a
finding of guilt ‘silence fills the gaps’.
In regard to the
locus standi
of
the respondent, Roux J held that section 38(e)
1
of the Constitution provided for the procedure adopted in this case.
[26]
It is convenient at this
stage to set out sections of the Constitution that are relevant.
[27]
Section 38 of the
Constitution, in so far as it is relevant, is in the following terms:
‘Anyone listed in this section has the right to approach a
competent court, alleging that a right in the Bill of Rights has been
infringed or threatened and the court may grant appropriate relief,
including a declaration of rights. The persons who may approach
a
court are –
. . .
(c) anyone acting as a member of, or in the interest of, a group or
class of persons;
. . . and
(e) an association acting in the interest of its members.’
[28]
Section 33(1) and (3) of
the Constitution, in so far as they are relevant, read as follows:
‘(1) Everyone has the right to administrative action that is
lawful, reasonable and procedurally fair.
(3) National legislation must be enacted to give effect to these
rights . . .’
[29]
Item 23(2)(b) of
Schedule 6 of the Constitution, in so far as it is relevant, reads as
follows:
‘Until the legislation envisaged in [section] 33(3) of the new
Constitution is enacted ─
. . .
(b) section 33(1) . . . must be regarded to read as follows:
“Every person has the right to ─
. . .
(b) procedurally fair administrative action where any of their rights
or legitimate expectations is affected or threatened . . .”’
(The facts giving rise to this case arose before the
legislation envisaged in section 33(3) of the Constitution, viz the
Promotion of Administrative Justice Act 3 of 2000
, was enacted with
the result that item 23(2)(b) of Schedule 6 applies.)
[30]
In arguing the appeal
before us Mr
Stoop
contended
that a
prima facie
case
had been established against Dr Krawitz on the main count. Referring
inter alia
to the
decisions of this Court in
Union Government
(Minister of Railways) v Sykes
1913 AD 156
and
Venter and Others v Credit Guarantee
Insurance Corporation of Africa Ltd and Another,
1996(3)
SA 966 (A) he submitted that because the answers to the questions as
to whether he treated the dog and if he did so, when
treatment was
given, were peculiarly within the knowledge of Dr Krawitz, less
evidence than otherwise would suffice to establish
a
prima
facie
case. Further, that sufficient evidence
had, in the circumstances, been led. The
prima
facie
case
thus
established, he contended, became conclusive when Dr Krawitz closed
his case without testifying.
[31]
He also relied on the
principle approved by this Court in
Galante v
Dickinson
1950(2) SA 460(A) at 465, viz that
a court is entitled, in the absence of evidence from the defendant,
to select out of two possible
alternative explanations as to what
happened, that explanation which favours the plaintiff, rather than
that which favours the defendant,
where the matter in question is
unquestionably within the knowledge of the defendant.
He submitted that two alternatives presented themselves
to the tribunal after the close of Dr Krawitz’s case: (1) that Dr
Krawitz
did not only conduct a post-mortem examination on the dog but
also rendered the necessary timeous assistance to the dog; or (2)
that
he only conducted a post-mortem examination and failed to render
the necessary timeous assistance so that in, the circumstances,
the
tribunal was entitled to regard the second alternative as proven,
given Dr Krawitz’s failure to testify.
[32]
Mr
Stoop
did not contend that if there had been no
prima facie
case
against Dr Krawitz the tribunal would have been entitled to regard
his silence as filling the gap notwithstanding that the facts
may
have lain peculiarly within his knowledge.
[33]
He also argued that
because Dr Krawitz’s legal representative did not at any stage put
to any of the witnesses that his client did
render the necessary
timeous assistance, this amounted to a tacit admission on the part of
Dr Krawitz that he did not render such
assistance.
[34]
On the
locus
standi
point Mr
Stoop
conceded that the decision taken by the
tribunal constituted administrative action within the meaning of
section 33 of the Constitution,
read with item 23(2)(b) of Schedule 6
of the Constitution. It follows from this concession, with which I
agree, that Dr Krawitz had
the right to procedurally fair
administrative action by the tribunal, as his right to continue to
practise as a veterinarian was
affected or threatened as a result of
the proceedings and that the requirement in the first part of section
38 of the Constitution
is accordingly satisfied. Mr
Stoop
contended, however, that the court
a
quo
erred in holding that section 38(e) was
satisfied. This paragraph, it will be recalled, gives
locus
standi,
where the enforcement of rights
entrenched in the Bill of Rights is concerned, to ‘an association,
acting in the interest of its
members’. Mr
Stoop
argued that it was significant that section
38(e) spoke of ‘the interest of its
members
.’
He said that the plural was not a coincidence and that, on the facts
of this case, none of the respondent’s members other than
Dr
Krawitz have an interest in the outcome of these proceedings. It
followed, so he contended, that the respondent did not have the
necessary
locus standi
to
bring the proceedings for review of the tribunal’s finding.
[35]
I turn to consider
whether a reviewable irregularity took place. It is clear from the
authorities that if a disciplinary tribunal
has applied the wrong
criterion in making a finding of guilt the application of such
criterion constitutes a reviewable irregularity,
which can only be
ignored if it is clear that if the correct criterion had been applied
the finding would have been the same: see,
eg,
Hira
and Another v Booysen and Another
1992(4) SA
69(A) at 95 C-F.
[36]
It appears from both the
judgment given when the finding was made and the supplementary
reasons furnished subsequently that the tribunal
adopted the wrong
approach when it considered the evidence at the end of the
proceedings. It did not approach the matter in the manner
outlined by
Mr
Stoop.
[37]
I say this because in my
view the tribunal did not consider whether there was a
prima
facie
case (which became conclusive when it
was not answered). It is plain both from the tribunal’s reliance on
the second appellant’s
interpretation of the decision in
Prokureursorde van Transvaal v Kleynhans,
supra,
and its statement that Dr Krawitz’s
failure to co-operate and assist left it with no option but to find
him guilty, together with
the statement in the supplementary reasons
that it was not correct to speak of a
prima
facie
case not having been established
against Dr Krawitz, that it approached the matter on a totally
erroneous basis and, as Roux J correctly
found, that it found Dr
Krawitz guilty simply because he failed to testify, without
considering whether a
prima facie
case
had been made out.
[38]
The second appellant’s
interpretation of the
Kleynhans
decision
is also clearly wrong. The passage relied on by the
pro
forma
complainant in argument before the
tribunal does not mean that an onus is placed on a respondent in
disciplinary proceedings to prove
his or her innocence or that a
failure to testify in answer to a charge, even where no
prima
facie
case is made out, will leave the
tribunal with no option other than to find the respondent guilty and
no such approach was adopted
by the court which heard the
Kleynhans
case. All that was said was that disciplinary
proceedings are
sui generis
(and
not to be conducted as if they were a criminal case (see
Cirota
and Another v Law Society, Transvaal
1979(1)
SA 172(A) at 187 G, one of the cases cited by Van Dijkhorst J in
Kleynhans’s
case)
nor ordinary civil proceedings (
Cirota, supra,
at 187 H)). It was also said that because
these were disciplinary proceedings it was expected of the respondent
to co-operate and
that obstructionism was not appropriate.
[39]
The
dictum
in any event does not apply to the facts of
this case. Dr Krawitz, it will be recalled, did not indulge in
tactical denials or obstructionism:
on the contrary he provided the
first appellant with a written explanation in the form of an
affidavit when notified in terms of
section 31(5) of the Act of the
matter to be inquired into. It is not suggested that that affidavit
(which was not put before us)
consisted simply of denials and a
refusal to provide information.
[40]
In view of the fact that
it is clear that the tribunal adopted an erroneous approach to the
matter the proceedings can only be saved
if it is clear that despite
the irregularity Dr Krawitz was not prejudiced because the finding
would have been the same if the correct
approach had been applied:
cf
Le Roux and Another v Grigg-Spall
1946 AD 244
at 254.
[41]
In my view, unless Mr
Stoop’s
contention
that Dr Krawitz’s attorney tacitly admitted that his client did not
give timeous and necessary treatment to the dog (by
failing to put to
the witnesses who testified at the inquiry that Dr Krawitz denied the
allegations against him on this point) is
correct, it is not possible
to say what the tribunal’s decision would have been on the point.
[42]
The contention was based
on the summary appearing in Phipson,
Evidence,
7 ed, 460 of remarks made by the House of
Lords in
Browne v Dunn
(1894)
6 R 67, quoted with approval by Davis AJA (with whom Watermeyer CJ,
Greenberg JA and Schreiner JA concurred) in
R
v M
1946 AD 1023
at 1028 and subsequently
approved by the Constitutional Court in
President
of the RSA v SA Rugby Football Union
2000 (1)
SA 1
(CC) at 37 B-C. As far as is material the passage reads:
‘As a rule a party should put to each of his opponent’s witnesses
in turn so much of his own case
as concerns that particular
witness . . .’
(My
emphasis.)
[43]
As none of the witnesses
who testified at the inquiry knew anything about the treatment (if
any) given by Dr Krawitz and no witness
testified directly on the
point it was neither appropriate nor necessary for Dr Krawitz’s
legal representative to put his denial
to them and there can be no
question of any tacit admission having been made by him in this
regard.
[44]
I am accordingly
satisfied that the tribunal’s finding against Dr Krawitz was
vitiated by a reviewable irregularity.
[45]
The next question to be
considered is whether the respondent had the necessary
locus
standi
to institute review proceedings to
have that finding set aside.
[46]
I do not agree with Mr
Stoop’s
contention
that in bringing the application for the setting aside of the
tribunal’s finding against Dr Krawitz the respondent was
acting
only in the interest of one of its members, Dr Krawitz, and not that
of the others as well. As long as the finding stood,
even if it was
not binding on future tribunals on some form of
stare
decisis
doctrine, there was at least a danger
that future tribunals, especially those presided over by the second
appellant, would adopt the
same attitude and find other members of
respondent guilty, without considering whether a
prima
facie
case had been established against them,
simply because they failed to testify. In the circumstances one can
readily understand why
the respondent was of the opinion, as stated
in the affidavit of Dr Carser, the chairman of the respondent, that
the manner in which
the first and second appellants conducted the
inquiry and the manner in which Dr Krawitz was found guilty were
matters of importance
to all members of the respondent. It follows
that the respondent did have
locus standi
in
terms of section 38(e) of the Constitution to institute the present
proceedings.
[47]
The following order is
made:
The appeal is dismissed with costs.
Concur
Marais JA
Schutz JA
Mthiyane JA
Heher AJA
......................
IG FARLAM
JUDGE OF APPEAL
MARAIS JA:
[1] I concur in the judgment of
Farlam JA. I do so
dubitans
in so far as the finding that the respondent had
locus
standi
to challenge
the outcome of disciplinary proceedings is concerned. If its interest
is, as it is said to be, the correction of the
reasoning employed by
the committee so that the members of the association, should they
have the misfortune to be charged with unprofessional
conduct, will
not in future suffer from the same erroneous reasoning and thus be
subjected to unfair administrative action, and if
that is a
sufficient interest to entitle it to seek relief in terms of s 38 (e)
of the Constitution, it would have
locus
standi
to approach
the court for a declaratory order. But
non
constat
that it
would necessarily have
locus
standi
to review
the outcome of a disciplinary enquiry involving a third party
(whether or not that party was a member) in order to protect
the
interests of its members generally.
[2] The
locus
standi
of the
respondent cannot depend upon whether or not the subject of the
enquiry approves or disapproves of the challenge to the outcome
of
the enquiry. It either has
locus
standi
or it does
not. That is a mixed question of law and fact. Allowing outsiders to
challenge, because there is a Bill of Rights principle
which was not
honoured, the outcome of proceedings the result of which is
acceptable to the subject of the proceedings and which
he or she does
not wish to challenge or have disturbed, is fraught with potential
problems.
[3] No doubt there may be infractions
which are so grave that the new constitutional order will require the
interests of the subject
of the enquiry to be subordinated to the
interests of the public in having strict adherence to the values
enshrined in the Bill of
Rights.
To
take an extreme example: A whipping is ordered by a disciplinary
tribunal. The person disciplined prefers that fate to a more
serious
disciplinary action which it is open to the tribunal to take. It may
well be that even outsiders who have no connection with
the person
concerned will have
locus
standi
to attempt
to prevent the whipping from being carried out. But I doubt whether
the same would apply to any infraction whatsoever
of a right
contained in the Bill of Rights no matter how little prejudice, if
any, has been caused by it.
[4] Had it not been for the fact that the
Promotion of
Administrative Justice Act 3 of 2000
has now been enacted and brought
into operation, I would have felt obliged to come to a firm
conclusion on the issue as the question
would have continued to arise
in the future and brave souls who might have wished to attempt to
persuade this court to revisit the
issue might have wanted to know
what the detailed reasons for the misgivings are. But the present
answer to the question is ephemeral
as the provisions of the
Promotion of Administrative Justice Act will
henceforth have to be
taken into account as well in answering such questions and we have
obviously not been addressed on the proper
interpretation of the
provisions of that Act. I shall therefore not say more than I have
said.
_____________________
R
M MARAIS
JUDGE OF APPEAL
HEHER AJA ) CONCUR
1
The judgment refers to section 38(3) but this is clearly a misprint.