IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 2516/2022
In the matter between:
DR RESHAM MOONIRAJ ATWARU Applicant
and
HEALTH PROFESSIONS COUNCIL OF SOUTH AFRICA First
Respondent
MEDICAL AND DENTAL PROFESSIONAL BOARD Second Respondent
THIRD PRELIMINARY COMMITTEE OF INQUIRY OF
THE MEDICAL AND DENTAL PROFESSIONAL BOARD Third Respondent
Heard: 1 November 2023
Delivered:
JUDGMENT
LESLIE AJ:
Introduction and background
1. The applicant is a specialist orthopaedic surgeon in private practice. As
such, he is registered with the Health Professions Council of South Africa –
the first respondent.
2. On 7 December 2017, the applicant performed surgery in the form of a fourth
toe metatarsophalangeal joint arthrodesis on Ms Debra Hetherington. In
December 2019, Ms Hetherington laid a complaint of unprofessional conduct
against the applicant.
3. The compla int was forwarded to the applicant, who provided his written
response to it on 27 January 2020.
4. The complaint and the applicant’s response served before the third
respondent (“the Committee”).1
5. The Committee convened a consultation meeting with the applicant on 30
July 2021, whereafter it decided to deal with the complaint in the manner
contemplated by regulation 4(9) of the Regulations .2 Regulation 4(9)
provides as follows:
“If a preliminary committee of inquiry decides, after due consideration
of the complaint, any further information which may have been
obtained in terms of subregulation (1)(a) and the respondent’s
explanation of the subject matter of the complaint, that th e respondent
acted unprofessionally, but the conduct in question is found to
constitute only a minor transgression, it must determine, as a suitable
penalty to be imposed, one or more of the penalties provided for in
section 42(1)(a) and (d) of the Act and direct the registrar to formulate
the charges in writing and communicate the charges and its decision to
1 The Third Preliminary Committee of Inquiry of the Medical and Dental Professional Board.
2 Regulations relating to the Conduct of Inquiries into Alleged Unprofessional Conduct under the Act
(GN R102 in GG 31859 of 6 February 2009, as amended) (“the Regulations”).
the respondent, stipulating that the penalty must be accepted or
rejected within 14 days from the date of receipt of the communication:
Provided that if the penalty –
(a) is accepted by the respondent, proof of compliance with such
penalty must accompany the notice of acceptance to the registrar,
and that penalty must be regarded as a penalty imposed by the
preliminary committee of inquiry, whereupon the ma tter will be
regarded as finalised; or
(b) is rejected by the respondent or no response is received by the due
date, the registrar must arrange for an inquiry into the professional
conduct of the respondent, and the charges so formulated and the
penalty so rejected or not responded to may no longer be applied to
the matter.”
6. In correspondence dated 12 August 2021, the applicant was advised that the
Committee had considered the matter and resolved:
6.1. To find him guilty of unprofessional cond uct in terms of regulation 4(9);
and
6.2. To impose a fine totalling R140 000 on him (R20 000 for exposing a
patient to danger or harm , R50 000 for incompetence and R70 000 for
negligence).
7. In a further notice dated 3 February 2022, the applicant was informed that
acceptance of the penalty and the payment of the fine would not constitute a
conviction and would not be reflected against his name as a previous
conviction. He was also informed that if the penalty was rejected or no
response was received within 14 days , it would no longer be applied to the
matter and the registrar would arrange for an inquiry into the complaint.
8. On 11 February 2022, the applicant instituted the present application to
review and set aside the Committee’s decision to find him guilty of
unprofessional conduct (albeit a minor transgression) and to impose the
fines on him (“the impugned decision”).
9. The application is brought , in the first instance, on the basis that the
impugned decision constitutes administrative action within the meaning of
section 1 of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) .
Alternatively, the applicant relies on the principle of legality, on the basis that
the Committee’s functions involve the exercise of public power.
10. The respondents d ispute that the impugned decision constitutes
administrative action. It is therefore necessary to address this question first.
Does the impugned decision constitute administrative action?
11. As summ arised by Hoexter ,3 there are seven elements to the definition of
“administrative action” in PAJA, namely:
11.1. a decision;
11.2. by an organ of state (or a natural or juristic person);
11.3. exercising a public power or performing a public function;
11.4. in terms of any legislation (or in terms of an empowering provision);
11.5. that adversely affects rights;
11.6. that has a direct, external legal effect;
11.7. and that does not fall under any of the listed exclusions.
12. In the present matter, it is clear that, in making the impugned decision, the
Committee was exercising a public power or performing a public function in
terms of legislation.4 This was not placed in dispute by the respondents.
3 C Hoexter and G Penfold “Administrative Law in South Africa” (Juta 3ed) p 248 ; PAJA section 1
(“administrative action”).
4 Sections 41 and 42(1) of the Health Professions Act 56 of 1974 (“the Act”) , read with the
Regulations. The second respondent (“the Board”) established the Committee pursuant to section
13. It is equally clear that none of the exclusions listed in secti on sub-sections
(aa) to (ii) of section 1 of PAJA apply.
14. However, the respondents submit that the impugned decision does not
comply with the definition of administrative action in that:5
14.1. it does not adversely affect the applicant’s rights, and
14.2. it has no direct, external, legal effect.
15. These points are interrelated. In support of both points, the respondents
assert that the nature of the impugned decision is preliminary and not final.
The respondents contend that the Committee’s decision is not final because
it was open to the applicant to reject the proposed penalty. In that event, the
complaint would be referred to a professional conduct inquiry and the
Committee’s (preliminary) determination and proposed penalty would fall
away.
16. The Constitutional Court held in Viking Pony that:6
15(5)(f) of the Act and delegated its powers to the Committee for the purposes of undertaking a
preliminary inquiry and imposing a suitable penalty.
5 In addition, in the respondents’ heads of ar gument it was asserted , without meaningful
substantiation, that the impugned decision was not of an administrative nature. This does not
withstand scrutiny. In Grey’s Marine (infra at para 24), this element was described as follows:
“Administrative actio n is rather, in general terms, the conduct of the bureaucracy (whoever the
bureaucratic functionary might be) in carrying out the daily functions of the State, which necessarily
involves the application of policy, usually after its translation into law, wi th direct and immediate
consequences for individuals or groups of individuals.” The Committee is tasked with performing
functions in relation to inquiries into alleged unprofessional conduct of persons registered under the
Act. As described in Aslam v President: Health Professions Council of South Africa [2023] ZAGPPHC
1321; 3480/2021 (3 April 2023) at para 46, a preliminary committee of inquiry is a statutorily created
body with “strict and limited legislated powers” . There ca n be no question that, when a preliminary
committee of inquiry carries out its statutory powers, it is performing functions that are quintessentially
administrative in nature. (See also Mapholisa NO v Phetoe NO 2023 (3) SA 149 (SCA) para 14.)
6 Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd 2011 (1) SA 327
(CC) para 37.
“Whether or not administrative action, which would make PAJA
applicable, has been taken cannot be determined in the abstract.
Regard must always be had to the facts of each case.”
17. It is also apposite to have regard to the following dictum from Grey’s Marine:7
“While PAJA’s definition purports to restrict administrative action to
decisions that, as a fact, ‘adversely affect the rights of any person’, I do
not think that literal meaning could have been intended. For
administrative action to be characterised by its effect in particular cases
(either beneficial or adverse) seems to me to be paradoxical and also
finds no support from the construction that has until now been placed
on s 33 of the Constitution. Moreover, that literal construction would be
inconsonant wi th s 3(1), which envisages that administrative action
might or might not affect rights adversely. The qualification, particularly
when seen in conjunction with the requirement that it must have a
‘direct and external legal effect’, was probably intended ra ther to
convey that administrative action is action that has the capacity to
affect legal rights, the two qualifications in tandem serving to
emphasise that administrative action impacts directly and immediately
on individuals.” (emphasis added)
18. There is ample authority to the effect that , in cases of multi -staged decision-
making, even decisions of a preliminary nature may qualify as administrative
action which is susceptible to review under PAJA. This is so particularly, but
not exclusively, in cases whe re the preliminary step is a prerequisite to
further steps in the decision -making process. 8 This flows from the
recognition that preliminary decisions may have self-standing, serious
consequences for individuals. In such cases, affected parties do not have to
7 Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005 (6) SA 313 (SCA) para 23.
8 See for example, Earthlife Africa (Cape Town) v Director -General: Department of Environmental
Affairs & Tourism 2005 (3) SA 156 (C) paras 17 and 35; Director: Mineral Development, Gauteng
Region v Save the Vaal En vironment 1999 (2) SA 709 (SCA) para 17; Glencore Operations South
Africa Proprietary Limited Coal Division v Minister of Mineral Resources (JR91/2014) [2016]
ZALCJHB 49 (3 February 2016) paras 48-70; Oosthuizen’s Transport (Pty) Ltd v MEC, Road Traffic
Matters, Mpumalanga 2008 (2) SA 570 (T) para 25.
wait until every st age of a decision -making process has been completed
before instituting a review application. It has been held that even non -
binding recommendations made by an investigating committee might, in a
proper case, attract an obligation to adhere to a fair procedure.9
19. In the present matter, the powers exercised by the Committee go beyond
merely making recommendations regarding the holding of a further inquiry.
Under regulation 5(9), the Committee is required to make positive
determinations, based on the material before it:
19.1. as to whether the respondent10 acted unprofessionally;
19.2. if so, whether the unprofessional conduct constitutes only a minor
transgression; and
19.3. if so, the Committee must determine a suitable penalty to be imposed
on the respondent (which is subject to his or her acceptance or
rejection).
20. If the respondent accepts the penalty “imposed” by the Committee in this
fashion, that is the end of the matter. It amounts to a final decision. As such,
the decision of the Committee – at the very least – has the capacity to
directly and immediately affect the respondent’s rights. There is something
incongruous in the suggestion that, only if the respondent does not accept
the Committee’s proposed penalty, its decision lacks the necessary element
of directness or finality.
21. What is more, the provisions of regulation 5(9) are mandatory. Once the
Committee determines that the respondent has committed a minor
transgression (as defined), it must determine a suitable penalty to be
imposed. This obligation on the part of the Committee gives rise to a
corresponding right on the part of the respondent – to be offered the chance
9 De Lille v Speaker of the National Assembly 1998 (3) SA 430 (C) para 15.
10 The registered person is referred to as the respondent in the Regulations.
to finalise the matter by paying a suitable penalty . In this sense, the
Committee’s determination directly affects the respondent’s rights under
regulation 5(9).11
22. For these reasons, in my view, the functions and powers exercised by a
preliminary committee of inquiry in terms of regulation 5(9) constitute
administrative action. As such, the impugned decision is in principle
susceptible to review on the grounds set out in section 6 of PAJA.
23. In any event, there is no doubt that the powers of a preliminary committee of
inquiry entail the exercise of public power, which is subject to legality
review.12
Review grounds
Duplication of findings and penalties
24. Section 42(1) of the Act stipulates that any registered person who, after a n
adverse determination made by a preliminary committee of inquiry on minor
transgressions, shall be liable to one or more listed penalties, including a
prescribed fine.
25. The applicable regulations13 provide that:
“A committee of enquiry 14 may impose a fine equal to or falling within
the range of minimum and maximum fines stipulated for each category
of unprofessional conduct indicated below, against a registered person
11 There are myriad reasons why a registered person might wish to accept a suitable penalty and
avoid a full conduct inquiry. These include an unwillingness to go through the inconvenience and
expense of a hearing, as well as the risk of an adverse finding potentially attra cting more stringent
penalties and the risk of an endorsement against his or her name in the register kept by the Registrar.
12 Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of South
Africa 2000 (2) SA 674 (CC) pa ra 85; and see Hoexter (supra) on the rapid expansion of the
application of legality review at pp 160-161.
13 Regulations relating to Fines Which May be Imposed by a Committee of Enquiry Against
13 Regulations relating to Fines Which May be Imposed by a Committee of Enquiry Against
Practitioners Found Guilty of Improper or Disgraceful Conduct under the Act (GN R632 in GG 333 85
of 23 July 2010), reg 2.
14 Which includes a preliminary committee of enquiry (reg 1).
or a person who is legally required to be registered and has been found
guilty of unprofessional conduct after an inquiry held by such
committee of enquiry under Chapter IV of the Act.”
26. There follows a table setting out various categories of improper or
disgraceful conduct, together with the prescribed minimum and maximum
fines for each category. Of relevance here are the following categories:
26.1. Category 6 – exposing patients to danger or harm , for which a fine of
between R5000 and R20000 may be imposed;
26.2. Category 10 – incompetence, for which a fine of between R10000 and
R50000 may be imposed; and
26.3. Category 11 – negligence, for which a fine of between R20000 and
R70000 may be imposed.
27. Despite categorising the applicant’s conduct as a “minor transgression”, the
Committee applied the maximum fines for each of these three categories,
totalling R140000.
28. The manner in which the Committee’s findings were arrived at is evident
from the transcript of its deliberat ions which immediately followed the
consultation meeting with the applicant on 30 July 2021. The Committee
members initially determined that a fine of R70000 should be imposed, made
up of R50000 for incompetence and R20000 for exposing the patient to
danger or harm. The latter fine pertained to the timing of the operation ,
which, in the Committee’s view, was undertaken too hastily in the context of
the patient’s overall medical condition.
29. Thereafter, following a question from a Committee member as to whether the
applicant was also negligent, the chairperson responded as follows:
“Yeah, I’m neither here nor there, I think that you are right , I mean
what’s the difference between incompetence and negligence here. I am
quite happy to add negligence to the whole situation.
…
So, we will add the negligence to that as well and then that will become
R140000.”
30. It is clear that t he finding of negligence, and the additional R70000 fine, wa s
based on the same facts and considerations that underpinned the
incompetence finding.15 It amounted to a duplication of findings and fines,
which is not permitted under the Act or regulations. As such, the impugned
decision was both unlawful and unfair. It falls to be set aside on th ese
grounds alone.
Procedural fairness
31. Procedural fairness is a flexible concept . The requirements of a fair
procedure in any particular case are context-dependent.16 Generally, a
person affected by administrative action is entitled to be given inter alia:17
31.1. Adequate notice of the nature and purpose of the proposed
administrative action; and
31.2. A reasonable opportunity to make representations.
32. In argument, the respondents’ counsel pointed out that there is no express
requirement in the Act to afford a healthcare practitioner any form of prior
hearing before a preliminary committee of inquiry makes a determination in
15 In the formulation of charges dated 3 February 2022 , drafted by an official of the first respondent,
an attempt was made to allocate different facts to the charges of incompetence and negligence.
However, this does not accord with the findings and determination of the Committee dated 30 July
2021, as summarised above.
16 PAJA s 3(2)(a); Bel Porto School Governing Body v Premier, Western Cape 2002 (3) SA 265 (CC)
para 104.
17 PAJA s 3(2)(b)(i) and (ii). These requirements apply unless the administrator can justify departure
from them on reasonable and justifiable grounds.
terms of section 42(1). However, this does not mean that the procedural
fairness requirements of PAJA may simply be ignored.
33. All administrative decisions must comply with PAJA, even if PAJA is not
mentioned in the empowering statute. PAJA is the le gislation envisaged in s
33(3) of the Constitution that gives effect to the right to reasonable, lawful
and procedurally fair administrative action. PAJA determines the standard of
procedural fairness for all administrative action.
34. The Constitutional Court has held that it does not matter that a statute does
not expressly state that a decision must be procedurally fair, or must comply
with PAJA:
“All decision -makers who are entrusted with the authority to make
administrative decisions by any statute are th erefore required to do so
in a manner that is consistent with PAJA.”18
35. The consequence is that all administrative decisions must be consistent with
PAJA “unless, upon a proper construction, the provisions of the statute [ ] in
question are inconsistent with PAJA.”19
36. Or, as the Court put it in Eisenberg and Associates:20
“In each case it is a question of construction whether a statute making
provision for a dministrative action requires special procedures to be
followed before the action is taken. In addition, whether or not such
provisions are made, the administrative action must ordinarily be
carried out consistently with PAJA.”
18 Zondi v MEC for Traditional and Local Government Affairs [2004] ZACC 19; 2005 (3) SA 589 (CC)
at para 101. See also Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd
and Others [2010] ZACC 26; 2011 (4) SA 113 (CC) at para 61.
19 Ibid.
20 Minister of Home Affairs v Eisenberg & Associates In re: Eisenberg & Associates v Minister of
Home Affairs and Others [2003] ZACC 10; 2003 (8) BCLR 838 (CC); 2003 (5) SA 281 (CC) at para 59
(emphasis added).
37. The upshot is that unless PAJA is excluded, it applies. In the present case,
there are no grounds for concluding that the Legislature intended to exclude
PAJA’s procedural fairness requirement s from the Act, read with the
Regulations.
38. In my view, the process followed by the Committee prior to making the
impugned decision fell short of the requirements of a fair procedure. In this
regard:
38.1. The patient’s written complaint pertained to the surgery p erformed by
the applicant. In particular, it was alleged that the implant placed in her
toe was “incorrectly inserted and should never have been placed
there.” This was the complaint which the applicant was called upon to
answer. It formed the subject matter of his written response.
38.2. However, at the consultation hearing on 30 Ju ly 2021 , the applicant
was questioned on additional issues which went beyond the surgery
itself, namely, the timing of the operation and the use of general as
opposed to regional anaesthetic. The Committee made adverse
findings against the applicant, at least on the issue o f the timing of the
operation, which it considered to have been too hast y. One of the
Committee members went so far as to express the view that the
applicant “rushed into the surgery in such haste, he wants to make
some money as far as I could see out of what he thought was a quick
and easy operation.” This resulted in the R20000 fine for exposing the
patient to danger – the maximum for this category of unprofes sional
conduct.
38.3. The applicant had no notice of these additional issues which were
raised mero motu by the Committee members on 30 July 2021. This
was unfair to the applicant. If the Committee intended to make adverse
findings against the applicant on points that were not foreshadowed in
the written complaint , it was incumbent on it to notify the applicant in
advance of these additional issues so that he could meaningfully
exercise his right to make representations in his defence.
38.4. In addi tion, one of the Committee members ( the only orthopaedic
expert on the Committee) indicated to the Committee in its
deliberations that his views were borne out by a report from an
independent foot surgeon. The content of this report was never put to
the applicant and he had no opportunity to rebut it.
39. In conclusion, the proc edure followed by the Committee was unfair to the
applicant in more than one material respect . The impugned decision falls to
be reviewed and set aside on this ground too.
40. In light of the above findings, it is not necessary to consider the remaining
grounds of review relied on by the applicant . I propose to remit the
complaint against the applicant to a differently constituted preliminary
committee of inquiry for its determination.
41. Lastly, the respondents brought an application to strike out paragraph 108 of
the applicant’s replying affidavit, on the grounds that it contained scandalous,
vexatious and irrelevant material (as well as introducing new matter in reply).
In the offending paragraph, the applicant insinuated that the remark made in
the Committee’s deliberations (to the effect that the applicant merely wanted
to make some money from the surgery) had racist overtones – the applicant
being of Indian descent. Th is is not supported by any of the evidence on
record. It has nothing to do with the issues at hand. At the very least, it has
no place in a replying affidavit. The application to strike out accordingly falls
to be upheld.
Order
In the premises, I make the following order:
1. The third respondent’s decision, taken on or about 30 July 2021, to find
the applicant guilty of unprofessional conduct and its determination of a
suitable penalty to be imposed in the amount of R140000 , is reviewed
and set aside;
2. The complaint lodged against the applicant by Ms D C Hetherington is
remitted to the first and second respondents for reconsideration by a
differently constituted preliminary committee of inquiry;
3. 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;
4. The respondents’ application to strike out paragraph 108 of the
applicant’s replying affidavit is upheld, with costs.
G.A. LESLIE
Acting Judge of the High Court
Appearances:
For the applicant: W Van Niekerk
Instructed by Bowman Gilfillan Inc
For the respondents: A Bhoopchand SC
Instructed by Nair and Associates