IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No : 2025 -051303
In the matter between:
TONI ELIZABETH RAPHAEL Applicant
and
THE HEALTH PROFESSIONS COUNCIL
OF SOUTH AFRICA First Respondent
THE CHAIRPERSON OF THE PROFESSIONAL CONDUCT
COMMITTEE OF THE HEALTH PROFESSIONS COUNCIL
OF SOUTH AFRICA Second
Respondent
Coram: NUKU J
Heard on: 8 May 2025
Delivered on: 9 May 2025
JUDGMENT
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NUKU, J
[1] Applicant seeks urgent interim interdictory relief to stay the Inquiry before
second respondent (‘the PCC’), pending the determination of an application (‘the review
application’) in which she seeks to review and set aside the decision of the PCC
dismissin g the application for a discharge she had brought in terms of regulation 9(7) of
the Regulations relating to the conduct of inquiries into alleged unprofessional conduct
(Inquiry Regulations ) made in terms of section 61 of the Health Professions Act , 56 of
1974 (Health Professions Act) .
[2] First respondent opposes both the application to stay the Inquiry and the review
application. As to the application to stay the Inquiry , the first respondent’s grounds of
opposition are that the applicant has failed (a) to make out a case for urgency, and ( b)
to satisfy the threshold requirements for an interim interdict. As to the review
application , the first respondent’s grounds of opposition are that the applicant ( a) gas
failed to exhaust internal remedies as provided for in the Inquiry Regulations and (b) the
review application is impermissibly brought in medias res, and the applicant has failed
to set out any exceptional circumstances to justifies the court’s intervention before the
conclusion of the Inquiry.
[3] The facts that gave rise to this application are largely uncontentious and can be
summarised as follows: the applicant is a clinical psychologist and is registered with the
Health Professions Council of South Africa, the first respondent , in terms of the Health
Professions Act.
[4] The first respondent received two complain ts relating to the applicant’s
professional conduct . The first complaint , from the applicant’s client, alleged that the
applicant had, in a report that she had prepared for court proceedings relating to the
well-being of the client’s minor child, claimed that she had interviewed people when in
fact she had not done so. The second complaint was from one of the persons who the
applicant h ad claimed to have consulted when she had not done so.
[5] The complaints were put to the applicant for her response . Having received the
applicant’s response, t he complaints and the applicant’s response were referred to a
committe e which decided to re fer the complaints to an inquiry in terms of Regulation
4(8) of the Inquiry Regulations .
[6] Two charges were preferred against the applicant , namely:
“Count 1 :
That you are guilty of unprofessional conduct or conduct which, when regard is
had to your profession, is unprofessional conduct in that on or about or during the
period October 2023, or portions thereof, as a registered practitioner with the
Health Professions Council of South Africa (“HPCSA”), you acted in a manner
that i s not in accordance with the norms and standards of your profession in that,
you committed an unprofessional conduct of fraud, by writing a report for the
High Court of South Africa, Western Cape Division sitting in Cape Town, wherein
you stated that you h ave interviewed Professor Mark Swilling for collateral
information in accordance with Court’s Order dated the 11 May 2023, whereas in
truth and in fact, when you wrote the report and stated that you interviewed
Professor Mark Willing, you knew that you did not interview Professor Mark
Willing, thereby misleading the High Court of the Western Cape Division, Cape
Town.
Count 2:
That you are guilty of unprofessional conduct or conduct which, when regard is
had to your profession, is unprofessional conduct in that on or about or during the
period October 2023, or portions thereof, as a registered practitioner with the
Health Professions Council of South Africa (“HPCSA”), you acted in a manner
that is not in accordance with the norms an d standards of your profession in that,
you committed an unprofessional conduct of fraud, by writing a report for the
High Court of South Africa, Western Cape Division sitting in Cape Town, On
behalf of the mother of a minor child who was a subject of Care and Custody
between his parents, wherein you stated that you have interviewed Ms. Cawood,
Professor M Swilling, Ms. R Abel, Ms. B Von Willing, and other individuals for
collateral information in accordance with Court’s Order dated the 11 May 2023,
whereas in truth and in fact, when you wrote the report and stated that you
interviewed Professor Mark Willing, you knew that you did not interview Ms.
Cawood, Professor M Swilling, Ms. R Abel, Ms. B Von Willing, and other
individuals, thereby misleading the High Court of the Western Cape Division,
Cape Town .”
[7] The applicant made some admissions prior to the commencement of the Inquiry .
These included the fact she had written in her report that she had interviewed Professor
Mark Swilling when she had in fact not done so.
[8] Two witnesses testified at the Inquiry after which the applicant applied for a
discharge in terms of regulation 9 (7) of the Inquiry Regulations . The application for a
discharge was refused on 11 December 2024 without providing reasons , whereupon the
applicant intimated that she intended to review the decision and requested reasons.
[9] The reasons for refusing the discharge were provided on 24 January 2025 .
Having received the reasons, the applicant requested the postponement of the Inquiry
pending the outcome of the review application that she intended to launch. The pro
forma complain ant did not accede to the applicant’s request , and on 20 February 2025,
the applicant brought a formal application before the P CC for the postponement of the
Inquiry pending the determination of the review application that the applicant intended to
launch in this Court.
[10] The application for a postponement of the Inquiry was refused on 10 March 2025
and on 11 April 2025, the applicant launched the present application for hearing on
Monday, 5 May 2025. Any respondent who intended to oppose the app lication was
given until Wednesday, 23 April 202 5 to deliver both the notice of opposition as well as
an answering affidavit.
[11] The application was served on the respondents on 17 April 2025 with Friday, 18
April and Monday, 21 April being public holidays which meant that the first respondent
was afforded only (1) court day to deal with the application. The first respondent was
unable to meet this deadline and was only able to have its answering a ffidavit finalised
on Friday, 2 May 2025. The applicant delivered her replying affidavit on Monday, 5 May
2025 being the date by which the application was set down for hearing. In any event,
the application was postponed for argument on Thursday, 8 May 202 5.
[12] The applicant did not deal with urgency in the founding papers , a fact that w as
pointed out in the first respondent’s answering papers . In her reply, the applicant simply
blamed the pro forma complainant for opposing the application to have the Inquiry
postponed pending the determination of the review application which the applicant
intended to launch. This should really be the end of the matter because the applicant :
12.1 gave herself a period of about a month to prepare the papers (from 10
March 2025 until 11 April 2025 when the application was launched) and
only afforded the applicant One (1) court day to deliver its opposing
papers, and
12.2 failed to set out exp licitly in her founding affidavit, as required in terms of
Rule 6 (12) (b) of the Uniform Rules of Court, the circumstances which is
averred render the matter urgent and the reasons why she claims that she
could not be afforded substantial redress at a hea ring in due course.
[13] Despite the applicant’s failure to deal with the urgency, I heard the merits of the
Application which I deal with next.
[14] Aware that an applicant for an interim interdict has to establish a prima facie right
that requires protection, the applicant relies on her right to a fair administrative action. In
this regard, she contends that the refusal of the discharge has violated that right . The
violation, she claims arises from (a) the P CC’s misdirection in respect of the test
applicable when considering an application for a discharge, (b) the P CC’s failure t o
consider the evidence, and (c) the fact that the PCC took irrelevant considerations into
account.
[15] The first respondent contends that the applicant’s prospects of success in the
review application are poor because the intervention of a court in un concluded
proceedings is not permissible in the absence of exceptional circumstances. The first
respondent’s argument is that the applicant has not pleaded any exceptional
circumstances . This is because a misdirection as to the applicable test, the failure to
consi der evidence as well as taking irrelevant factors into account are all ordinary
grounds of review that do not amount to exceptional circumstances.
[16] The applicant accepts that the intervention of a court in un concluded
proceedings is only permissible in exceptional circumstances. It was contended on
behalf of the applicant that this is one of those cases where grave injustice might
otherwise result or where justice might not be obtained by other means and as such
warrants this Court’s intervention before the conclusion of the proceedings. This is
because putting her into her defence is a gross violation of her right to an administrative
action that is l awful, reasonable and procedurally fair. This argument was based on the
decision of the SCA in S v Lubaxa1 where Nugent JA stated that:
‘I have no doubt that an accused person (whether or not he is represented) is
entitled to be discharged at the close of the state case for the prosecution if there
is no possibility of a conviction other than if he enters the witness box and
incriminates himself. The failure to discharge an accused in those ci rcumstances,
if necessary mero motu , is in my view a breach of the rights that are guaranteed
by the Constitution and will ordinarily vitiate a conviction based exclusively upon
his self -incriminatory evidence.’2
[17] It was submitted on behalf of the first respondent that the authority relied upon by
the applicant is distinguishable in that an accused person has a right not to be
compelled to give self -incriminat ing evidence in criminal proceedings whereas a person
who is subject of an enquiry enjoys no such right.
[18] There is merit in the first respondent’s submission because section 35(3)(j) of the
Constitution of the Republic of South Africa, 1996 (Constitution) provides, in express
1 2001 (2) SCAR 703 (SCA)
2 Sv Lubaxa, para [18]
terms that “ Every accused person has a right to a fair trial, which includes the right not
to be compelled to give self -criminating evidence .” To require an accused person to
testif y in circumstances where there is no evidence upon which he or she could be
convicted unless he or she gives self -incriminating evidence would be a violation of that
right enshrined in section 35(3)(j) of the Constitution. There is, however, no such
equiva lent provision in respect of proceedings before administrative tribunals.
[19] There is a further distinguishing factor . Nugent JA posited two scenarios in
Lubaxa . The first was where the court is of the opinion that there is evidence upon
which it may convict and, in that scenario, he stated that the court’s duty is straight
forward in that the accused may not be discharged.3
[20] The second scenario is where a court is of the opinion that there is no evidence
upon which an accused person may be convicted, and the question was whether the
court still has a discretion not to discharge an accused person. It was when he was
considering this scenario that he concluded that any prosecution based on self -
incriminating evidence would vitiate the proceedin gs.
[21] Reverting to the present application , the PCC refused the application for
discharge because of its view that there is a prima facie case. In the words of Nugent
JA, it would appear that the P CC’s duty is straightforward, the person subject to the
Inquiry may not be discharged . That being the case a failure to discharg e under th ose
circumstances cannot establish exceptional circumstances.
[22] When the applicant was faced with the above difficulty, she sought to advance
her case with reference to a decision of this Court in Boon4, a case that involved the
review of unconcluded proceedings b efore a committee of the Health Professions
Council of South Africa. In this regard the argument was that in Boon , which is on all
fours with this matter regarding the basis of the review, the Court with reference to
3 Lubax a, para [11]
4 Boon v HPCSA and Another , case no. 6678/2016 , an unreported judgment of Van Staden AJ , delivered
on 2 August 2017
Towles, Edgar Jacobs Ltd v President, Industrial Court,5 confirmed that the High Court
has supervisory powe r over decisions or proceedings of a body or tribunal on which
statutory duties are imposed and that ‘[t]his includes the power to intervene in
unconcluded proceedings, inter alia, where serious injustice would otherwise occur or
justice would not be attai ned in any other way, for instance, where an appeal or review
in the ordinary course would not suffice.’6
[23] I have no quarrels with the legal position that was stated in Boon and in fact it
appears to be in accordance with the long line of decision s to the effect that intervention
before the conclusion of proceedings is only warranted in exceptional circumstances.
How the reference to that decision assists the applicant is, however, difficult to
understand where there are no facts that are pleaded to suggest that serious injustice
would otherwise occur or justice would not be attained in any other way, for instance,
where an appeal or review in the ordinary course would not suffice .
[24] In my view, the applicant’s prospects of success in the review ar e poor but that
is not the only consideration. When dealing with irreparable harm and the balance of
convenience, the applicant proceeds from the same mistaken premise as she does in
respect of her prima facie right. This premise starts with her argument t hat there is no
evidence upon which she may be found guilty unless she gives self -incriminating
evidence. This, however, is her opinion and not that of the P CC. The P CC, as stated
already refused the application for a discharge on the basis there is a prima facie case.
[25] Proceeding from that premise she then argues that she does not know what
case she is expected to meet , and that she will lose the remedy of a discharge whether
she testifies or not. She then concludes that she should not be required to give
evidence at the Inquiry when the very question as to whether she is in law required to
give evidence at the Inquiry is pending before this Court .
5 1986 (4) 660 (C)
6 Boon, para [49], with reference to Van Wyk v Midrand Town Council (4) SA 185 (W) 187 F -G and
Brock v SA Medical and Dental Council 1974 (1) SA 396 (N) at 400
[26] The difficulty with this argument is that it ignores the provision s of regulation 10
of the Inquiry Regulations which provides “ If the application for a discharge is refused,
the respondent or his or her legal representative may address the professional conduct
committee and lead evidence in support of his or her case, re -examine the witnesses
after cross -examination by the pro forma complainant and thereafter close his or her
case .” The requirement for her to make an election flows from the regulations and there
is no challenge to the constitutionality of the provision. In the absence of a chall enge to
the regulations, it cannot be said that there will be harm, let alone irreparable harm, to
require the applicant to make an election that the regulation requires him to do.
[27] For all the above reasons, I am not satisfied that the applicant has satisfied the
requirements for an interim interdict. The result is that the applications must be
dismissed with costs.
ORDER
[28] In the result I make the following order:
The applica tion is dismissed with costs including cost of counsel to be taxed or
agreed on s cale B.
__________________________
L.G. Nuku
Judge of the High Court
APPEARANCES
For applicant: Adv. Janet McCurdie
Instructed by: MacRobert Attorneys
For first respondent: Adv. Mukesh Vassen
Instructed by : M Attorneys