REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case N umber : 18544 /2023

In the matter between:

JULIAN VAN DER WESTHUIZEN AND
SIXTEEN ( 16) OTHERS
Applicant s
and

LIFE HEALTHCARE HOLDINGS GROUP
(PTY) LTD
First Respondent
LIFE VINCENT PALLOTTI HOSPITAL
(PTY) LTD
Second Respondent
LOUIS KATHAN
Third Respondent
DR LOUIS KATHAN INC Fourth Respondent

Coram: Wille, J
Heard: 4 March 2025
Delivered: 15 April 2025

JUDGMENT


WILLE, J:

INTRODUCTION

[1] This is a challenging and complex matter. As is the further application
launched by the third and fourth respondents following discrete application
proceedings, over which I also presided . At the outset, I express my gratitude to the
legal teams involved for how they presented their cases and the eloquent arguments
made by all the counsel involved.1

[2] The applicants are made u p of sixteen cancer patients. I have been informed
that one of these patients has since passed away , and I ex tend my condolences. All
these patients receive treatment at the facilities controlled by the second respondent
and owned by the first respondent (the hospital respondents). These patients are
treated and cared for by the third respondent.2

[3] The third respondent boasts an impressive record as an accomplished
oncol ogist and is a leading stereotactic and brain tumour oncologist . He was
responsible for bringing cutting -edge technology in cancer treatment to the hospital ,
controlled and managed by the hospital respondent s.3

[4] The hospital respondent s have a very sp ecialised and unique cancer
treatment machine. This machine p ermits non-invasive radiotherapy technology that
can adapt to a patient’s treatment plan based on their type of cancer. In addition, the
second respondent is one of a few hospitals in our count ry with an additional
specialised typ e of machine also used in the treatment of cancer patients .4


1 The second matter was heard on the day following this application
2 The third respondent is Dr Kathan.
3 This is not disputed.
4 This is the only hospital in Sub-Sharan Africa with an “Ethos” machine . Some other hospitals do
have “Novalis” machine s.
[5] The third respondent is one of the most, if not the most , experienced
oncologist s operating these specialised machines. He is regarded as head and
shoulders above other oncologists at the facilities managed by the hospital
respondent s. He is highly skilled in the operation of these machines.5

OVERVIEW

[6] About eighteen months ago, the hospital respondents terminated the third
respondent’s practising privileges (the decision). The termination did not take place
with immediate effect but was delayed by a few months.6

[7] The decision was made because the third respondent alleged ly made certain
homophobic, racist, and sexist remarks while at the hospital managed by the second
respondent. The effect of the termination decision was that the applicants would not
be able to receive lifesaving medical treatment a t the facilities managed by the
second respondent. The applicants challenge d this termination decision because
they said it was irrational and unlawful . This is then what this case is about. Other
than some limited factual disputes, it raises complex legal issues.7

[8] In summary , it is co ntended that the hospital respondents did not correctly
apply their policies when terminating the third respondent’s practising privileges. The
third respondent says this because they did not take corrective measures before
terminating his practising priv ilege s, includ ing adopting a rehabilitation plan.8

[9] In response, the hospital respondents argue that adopting less restrictive
measures was unnecessary and that one of their discrete polic ies permits
termination as a matter of first and not last resort.9

[10] In reply, the third respondent says that the latter policy finds application only
when a practitioner’s privileges are in place and when they are guilty of serious

5 This was not disputed. A supporting affidavit was filed in this connection which was not the subject
of dispute.
6 It was delayed until the end of December 2023.
7 Most of the factual issues were common cause, alternatively not materially engaged with.
8 This following their “Management Policy”
9 This following their “Privileges Policy”.
misconduct . Then, termination may be immediate. Thus, this would apply where a
doctor engage d in conduct that seriously threatened the hospital and its patients . In
these circumstances, he or she should not be allowed to cont inue practising. Hence,
the conduct complained of would necessitate immediate removal , which would apply
as a matter of logic to protect the hospital and the hospital’s patients.10

[11] In this case , the hospital respondents elected not to remove the thir d
respondent immediately in terms of this guillotine clause, and the enforcement of the
termination decision was delayed for several months.11

[12] Simply put, the third respondent advances that the first and second
respondents should be bound by their el ection not to proceed with immediate
termination.12

[13] Some of the critical legal issues for determination are these:

(a) The hospital respondents say their termination decision did not
amount to administrative action (as defined) .

(b) In the alternative, they argue that if their decision amounted to
administrative action , the applicants do not have standing to
challenge their decision.

(c) Further, t hey say that the law of contract does not allow the applicants
to enforce compliance with the hospital respondents’ policies
regarding unacceptable conduct and practising privileges .

(d) Also, t hey argue that even if the applicants are entitled to compel
compl iance with their policies, the y are not binding on the hospital
respondents. T hey say their policies may be used against doctors

10 The hospital r espondents did not terminate the third respondent’s privil eges with immediate effect.
11 The termination decision was taken but the e nforcement thereof was delayed for several months.
12 Manifestly, the own policies did not support their decision.
with practising privileges , but the policies may not be used against the
hospital r espondents.13

BACKGROUND

[14] The third respondent started his business relationship with the second
respondent about fifteen (15) years ago. He has received training as an oncologist
both domestically and internationally. He is considered a leader in his field. He has
been described as a forward thinker in cancer treatment.14

[15] It is conceded that the third respondent often find s solutions that have saved
the lives of many cancer patients. His expertise is best described as personali sed
precision oncology care.15

[16] About two years ago, the hospital respondents received resign ation letters
from two employees in the radiology unit . They complained that the third respondent
made working at the hospital intolerable . The hospital respondents investigated
these complaints and concluded that there was evidence that the third respon dent
had made racist, homophobic and sexist remarks. The allegations were that the
third respondent had uttered the words ‘nigger ’ and ‘moffie ’ and made sexually
inappropriate comments to female staff members.16

[17] The third respondent denie d these allegations and explained that these
unfortunate comments regarding ‘nigger’ and ‘moffie ’ were taken out of context and
that, as a gay man of colour himself, he is neither racist, homophobic or sexist. In
addition, he say s that t he evidence connected to these remarks demonstrate s that
these remarks were n ever intended to be racist, homophobic or sexist speech . It
goes without saying that the use of the word ‘nigg er’ is unacceptable and repulsive.
The key point is whether the third respondent intended his actions to be threatening,
abusive or insulting or whether he knew they might have been.17

13 The so styled “one -way” street argument.
14 It was not disputed that the third respondent is an innovative cancer specialist.
15 He has also been hailed as a neuro -oncologist.
16 No context was given in connection with these alleged remarks.
17 This was never demonstrated or engaged with by the hospital respondents.

[18] A disciplinary hearing followed, and the third respondent was found guilty of
unfair discrimination, harassment, sexual harassment, bullying, and creating a
hostile working environment . He was acquitted on several other charges, including
acting in conflict with the best interests of the business of the hospital respondents or
other patients and /or placing his patient and practice needs ahead of the hospital
respondents ’ operations. Because of these findings, the hospital respondent s
terminated the third respondent's employm ent contract but did no more than that ,
and he continued to work as an oncologist at the hospital.18

[19] This termination, however, did not detract from the third respondent’s
entitlement to practice as an oncologist a t the facility managed by the second
respondent. He remained entitled to do so because of his practising privileges at the
hospital.19

[20] Thereafter, the hospital respondents communicated with the third respondent
and informed him of their decision to inquire about his admission rights and
practising privileges at the facilities managed by the second respondent.20

[21] A flurry of legal processes followed, and the parties agreed to a private
mediation. No agreement was reached to resolve their differences. An attempt at
conciliation also failed , and eventually , the matter was r eferred to arbitration.21

[22] What followed was a request by the hospital respondents to the third
respondent to provide them with written representations on whethe r (or not) the
hospital respondents should terminate his practising privileges.22

[23] About a month later, the hospital respondents terminated the third
respondent ’s practising privileges. What is telling is that the hospital respondents
delayed the implementation of their termination decision by about five (5) months.23

18 They did not move for the termination of the third respondents practising privileges.
19 They terminated his employment only as the “Chief Medical Officer”.
20 In the interim the third respondent continued to practice as an oncologist.
21 On 20 June 2023.
22 The third respondent made representations on 3 July 2023.

CONSIDERATION

[24] The hospital respondents contend that their termination decision originates
from the contractual n exus and nature of the relationship between them and the third
respondent. Further, they say that because their termination decision was
contractual, they a re, as a matter of law, entitled to deviate from their policies, which
may not be enforced against them. The argument is that the hospital respondents
do not and d id not in any manner exercise any form of public power.24

[25] The hospital respondents argue that following the approach they adopted,
administrative and constitutional law principles are incapable of disciplining their
decision. The applicants and third respondent contend that this approach is
impermissible . They say it is the approach often adopted by bodies that exercise
considerable power with public implications to avoid accountability and scrutiny for
their actions.25

[26] In summary, b y way of legislative intervention, a dministrative action is defined
as having t he following features:

(a) Any decision take n or a failure to decide by an organ of state when
exercising a power (or exercising a public power ) or performing a
public function in terms of any legislation , and/or

(b) Any decision taken by a natural or juristic person, other than an organ
of the state, when exercising a public power or performing a public
function in terms of an empowering provisio n which adversely affects
the rights of any person and which has a direct, external, legal effect .26


23 This termination was to take effect on 31 December 2023.
24 They contend that the Promotion of Administrative Justice Act, 3 of 2000 (PAJA) finds no
application.
25 This is then the real issue and legal dispute between the parties.
26 These are the features of administrative action set out in the definition s ection of PAJA.
[27] As a matter of pure logic, it must be so that private bodies may exercise public
power even where there is no statute empowering the exercise of that power . Th e
issue for scrutiny is whether this may even be the case where a contractual regime
exists and where to draw the judicial line in the sand.27

[28] It is insufficient to merely explore the nature of the relationship between the
parties in isolati on, contractual or otherwise. Instead, r egard must also be given to
the consequences of the decision. Thus, where the exercise of power by a private
body has public consequences, it may (depending on the circumstances , the context
and the factual matrix) be regarded as an exercise of public power. I also say this
because I am guided by the binding and leading jurisprudence formulated i n Ndoro .28

[29] In this case, it was held that the decision made by an arbitration tri bunal in
connection with an aspect of football in this country constituted administrative action .
This was so because it concerned a matter in which the public had a legal interest
even though there was no empowering provision for exercising the specific power at
play. Nevertheless, the public may have a legal i nterest in exercising a particular
public power because, among other things, of the consequences of the decision
taken , especially where constitutional rights may be at play.29

[30] More recently, consideration had to be given to whether the decisions of an
advertising regulatory board ( a private body ) constituted administrative action. The
outcome was that it did because the proced ural guid elines made by the board
served as the empowering provisions through which it made decisions .30

[31] The hospital respondents concede that their business is not the business of a
regular commercial enterprise. This must be so because the hospital respondents
provide healthcare services to the public , implicating human rights and placing a duty
on them to act ethically, transparently and with accountab ility.31


27 Dawnlaan Beleggings v Johannesburg Stock Exchange 1983 (3) SA 344 (WLC) at 364 B -G
28 Ndoro v SAFA 2018 (5) SA 630 (GJ) at paragraph [31].
29 The reasoning was because the private association that regulated football exercise a public
function because they oversee a public good and do not simply regulate private interests.
30 Advertising Regulatory Board v Bliss Brands 2022 (4) SA 57 (SCA) .
31 This is in terms of their own Code of Conduct.
[32] Thus, the hospital respondents must observ e, advanc e and support human
rights. In addition, they must act rationally and reasonab ly in their decisions. The
instruments that govern and regulate the conduct of the hospital respondents serve
as the ir empowering provisions.32

[33] The hospital respondents do not deny that the public has an interest in them
acting lawfully , ethically and rationally , and they correctly appreciate that their
patient ’s well-being may be affected by their decisio ns. Thus, the public interest here
concerns fundamental constitutional rights. Self-evidently, the hospital respondents
have a negative constitutional obligation not to undermine the right of access to
healthcare.33

[34] It must be that when the hospital respondent s exercis ed their discretion
involving public interest, they were performing a public function . When they took the
termination decision, this must have been an administrative action , which , in turn, fell
to be disciplined by the intervening legislation.34

[35] Put another way, this was so because the hospital respondents must have
appreciate d that the public may be affected by the consequences of their decision.
Thus, w hen it exercise d discretion, it , to an extent, performed a ‘public ’ functio n.35

[36] I say this also because of the peculiar facts of this matter. The termination
decision adversely affect ed the rights of patients to access and receive the best
possible treatment they could afford . Further , the hospital respondents are
exclusively r esponsible for the public having access to these facilities . A negative
duty not to impair the ir right to access healthcare thus rests on the hospital
respondents.36

[37] The termination decision directly and negatively affected the applicants
because it deprive d them of the treatment they ha d received for many years. The

32 Their Code of Conduct together with the Management and Privilege s Policies.
33 Governing Body of the Juma Musjid Primary School v Essay NO and Others 2011 (8) BCLR 761
(CC) at paragraph [31].
34 Administrative action governed by PAJA .
35 It gave effect to the rights of patients and access healthcare .
36 The decision they took was not in my view an out and out commercial decision.
hospital respondents exercise d a ‘monopoly ’ regarding this specialised cancer
treatment. Thus , relying on a sanitised contractual approach to avoid constitutional
and administrative law principles is impermissible in these circumstances .37

[38] Now, I am turning to the applicants’ grounds for review. Here, we have a
technical argument about two different instruments that regulate the conduct of the
hospital respondents and the third respondent. The argument is that the privilege
instrument trumps the provisions of the management instrument.38

[39] The management policy does not permit a termination as a m atter of first
instance. Instead, i t contemplates a process of rehabilitation in the following
manner:

(a) If the unacceptable conduct is not serious and has occurred for the
first time, the hospital manager must discuss the matter with the
practitioner a nd emphasise that the conduct should not re -occur. The
practitioner may also be requested to apologise for his or her conduct.

(b) If the unacceptable conduct reoccurs or if it is a first offence but of a
serious nature, the hospital is required to implement a rehabilitation
plan for the practitioner. The obligation to do so is not discretionary. It
is an obligatory process.

(c) If the unacceptable conduct poses an imminent danger to the health
of an individual or individuals and/or constitutes a serious offence ,
then the offending practitioner may be suspended immediately .39

[40] In connection with the alleged conduct of the third respondent, the suspension
of his practising privileges would happen only if the following occur red:

(a) If the conduct pose d a threat to the health of individuals and/or

37 The hospital respondents exercised a public power when they made the decision.
38 The contention is that the privileges policy allows a deviation from the management policy.
39 This was not implemented against the third respondent.

(b) If the conduct constitute d a serious offence under the management
policy .40

[41] It is common cause that the hospital respondents did not immediately
suspend the third respondent’s practising privileges. The hospital respondents d o
have the power to terminate a practitioner’s practising privileges . Still, it may only do
so immediately after the practitioner is found to have engaged in unacceptable
conduct . The third respondent's practising privileges were n ot terminated
immediately but were delayed for a few months.41

[42] I adopt a common -sense approach to this debate. Immediate suspension is
reserved for serious conduct where a practitioner's presence threatens the hospital
and its patients. Put another way, t he continued presence of a practitioner would
harm not only the hospital but also the lives of its patients. In this case, the hospital
respondents made an election, and that election binds them.42

[43] They are not entitled to blow hot and cold simultaneously if this would
prejudice the third respondent . It would be manifestly unfair to the third respondent
in this case .43

[44] Thus, the applicants contend that t he termination decision was not rationally
connected to the purpose of the privileges policy, which is to remove a practitioner
with immediate effect for unacceptable conduct.44

[45] This brings me to the proportionality and rationality argument and debate. It is
trite that a decision -maker must n ot impose a severe sanction when a less severe
sanction will achieve the same purpose , as this prevents the abuse of power.45


40 The third respondent’s practicing privileges were not immediately suspended.
41 There was a delay of about eight months.
42 The purpose is to allow swift action in respect of unacceptable conduct.
43 Equity Aviation Services (Pty) Ltd v CCMA 2009 (1) SA 3909 (CC) para graph [54].
44 This they say makes the decision reviewable under PAJA.
45 SanParks v MTO Forestry (Pty) Ltd and Another 2018 (5) SA 177 (SCA) at paragraph [39].
[46] The third respondent stands accused of using the words ‘nigger ’ and ‘moffie ’
and making sexually suggestive remarks about blonde women. He explained that he
was not racist or homophobic as he is a homosexual man of colour. The hospital
respondents contend that his subjective intention when uttering these words is
irrelevant and must be ignored.46

[47] This is precisely the species of conduct that cries out for intervention and
rehabilitation by the hospital respondents. I say this because the third respondent
did not use the se offending words in a racist or homophobic manner. The
termination decision was arbitrary . This was also disproportionate because there
was no justification for declining to implement a rehabilitation plan .47

[48] The third respondent was not provided with reasons for his termination. The
reasoning may have provided further insight into whether the termination decision
was appropriate , whether an empowering provision authorise d the decision
contemplated and whether less restrictive means would achieve the same purpose.48

[49] The hospital respondents seek to avoid the provisions of the privileges policy
by contending that the applicants are not entitled to raise a ny challenge because
they are not parties to the contract between them and the third respondent . As I
understand our jurisprudence, t hird parties ar e entitled to raise challenges
concerning the non -compliance of contracts where their constitutional rights may be
implicated. The reasoning behind this is that private parties have a negative
obligation not to interfere with the realisation of rights. In some rare cases, a positive
obligation is imposed on private parties where constitutional rights are implicated.49

[49] The consequences of the termination decision mean t that the applicants
would no longer be able to access the se highly specialised facilities under t he

46 The hospital respondents say that context is irrelevant.
47 This is not engaged with by the hospital resp ondents.
48 Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries 2003 (6) SA 407
(SCA) at paragraph 40.
49 AB and Another v Pridwin Preparatory School 2020 (5) SA 327 (CC) at paragraph [66].
treatment of the third respondent, the most skilled and experienced oncologist using
these machines.50

[50] This constitutes an interference with the rights to access healthcare services
and a breach of the negative obligations imposed on the hospital respondents. The
termination decision also impedes the rights of the applicants to make decisions
about their healthcare .51

[51] This matter does not involve an ordinary commercial contract , as
constitutional rights are implicated. It must be so that an agreemen t between a
private hospital and a medical practitioner affecting the rights of patients to receive
healthcare is subject to enforce ment by the patients because their constitutional
rights may be affected.52

[52] Finally, I deal with the issue of the rights of the applicants and, to a limited
extent, the issue of their standing in law. Although the hospital respondents did not
vigorously pursue th e ‘standing ’ objection, it must be considered. The hospital
respondents initially contended that the applicants were not entitled to submit
representations concerning the termination decision and had no right to be heard .53

[53] Further, the argument was made that th e third respondent acted improperly by
causing some of the applicants to submit representations to the hospital
respondents.54

[54] Over time, this stance softened. I say this because, thereafter, the hospital
respondents c ontend ed that the representation s submitted by some of the applicants
were indeed considered. What is significant in this case is that t he applicants were
never invited to submit representations to the hospital respondents. Further, I gained
the distinct impression from the papers that when these representations were

50 This allegation was supported in a supporting affidavit filed by an independent medical practitioner,
51 A violation of the right to bodily and psychological integrity constitutionally protected.
52 Darling Borough Council v Wiltsher Nothern Ltd and Another [1995] 1 WLR 68 at 76 E-F.
53 The point was that the applicants did not have ‘ locus standi’ .
54 The argument was that the third respondent encouraged this to retrofit his opposition to
termination.
submitted, this was interpreted as part of a strategy devised by the third respondent
to exert pressure on the hospital respondents not to reach an adverse decision.55

[55] Turning now to the issue of standing. The hospital respondents contend that
even if their decision amount ed to administrative action, the applicants have no legal
standing to challenge it. The decision had profound consequences for the
applicants, and bec ause of these consequences, they have a direct and substantial
interest in whether the termination decision was taken lawfully .56

[56] Another s ignificant factor was that the decision interfere d with established
relationship s between the third respondent and the applicants who ha d developed
trust and confidence in the third respondent’s ability to treat the m. The applicants
averred that they act ed in both the public interest and in their interest. I believe the
applicants have adequa tely demonstrated that the decision affected a right or
interest or a potential right or interest.57

[57] I say this because the termination decision deprive d the applicants of their
right to access to healthcare, dignity, freedom of the person and the right to make
medical decisions. Put another way, the termination decision’s lawfulness (or
otherwise) will have a detrimental effect on the treatment received by the applican ts
once (and if) implemented. Thus, the interest of the applicants is not academic nor
hypothetical.58

[58] What remains is the issue of the standing connected to public interest. The
issue to be considered is whether t he public (in general) has a legal interest in
whether the hospital respondents in these circumstances acted lawfully . This is so
because their decision may impact other patients who desire access to this
specialised equipment and access to the third respondent’s expertise in using thi s
equipment.59


55 This was not materially engaged with by the hospital respondents.
56 The applicants have a constitutional right to access to healthcare.
57 Giant Concerts CC v Rinaldo Investments (Pty) Ltd 2013 (3) BCLR 251 (CC) at paragraph [41].
58 Giant Concerts CC at paragraph [50].
59 This case was not only about the applicants but impacts the healthcare of other future patients.
[59] Because of the peculiar facts of this case and considering that this specialised
equipment’s availability is limited, the applicants have demonstrated a legal standing
connected to the public interest. I say this because o ur law takes a g enerous
approach to what is required to establish public interest standing in matters with a
constitutional ingredient .60

CONCLUSION

[60] For these reasons, the application must succeed. Further, it is essential to
formulate the order comprehensively following the recent jurisprudence in Ekapa .61

[61] The following order is granted:

1. The decision by the first and second respondents to termi nate the third
respondent’s admission and practising privileges at Vincent Pallotti Hospital ,
dated 1 August 2023 (“the termination decision”) , is declared to be
inconsistent with the Constitution of the Republic of South Africa, 1996 , and is
with this dec lared invalid.

2. The termination decision taken by the first and second respondents is
reviewed and is, with this, set aside.

3. Further, i t is declared that the termination decision is inconsistent with the first
and second respondents’ “Code of Conduct and P olicy on Management of
Unacceptable Conduct by a Medical Practitioner ”.

4. In addition, t he first and second respondents’ termination decision is, with this,
set aside on the basis that it is inconsistent with the hospital respondents’
“Code of Conduct and Policy on Management of Unacceptable Conduct by a
Medical Practitioner ”.


60 Solidarity v Minister of Health and Others 2024 (5) SA 563 (GP) at paragraph [ 4].
61 Ekapa Minerals (Pty) Ltd v Sol Plaatje Local Municipality and Others ( CCT/119/23) [2025] ZA
CC1(24 March 2025] at paragraph [80] .
5. The costs of this application shall be paid by the first and second respondents
(jointly and severally, the one paying the other to be absolved ), including the
costs of two counsel , following Scale C.


_________
E D WILLE
(CAPE TOWN)


APPEARANCES

FOR THE APPLICANTS
ANTON KATZ SC
KESSLER PERUMALSAMY
INSTRUCTED BY CARLO TIMOTHY
TIMOTHY AND TIMOTHY ATTORNEYS

FOR THE FIRST AND SECOND RESPONDENTS
ANDREW REDDING SC
DANIEL SIVE
INSTRUCTED BY JOHAN BOTES
BAKER & MCKENZIE

FOR THE THIRD AND FOURTH RESPONDENTS
STEVE KIRK -COHEN SC
MARTINUS VAN DEN BERG
INSTRUCTED BY G STANSFIELD
MCACISO STANSFIELD INC