IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2024-113106
In the matter between:
DR TENDEUKAI CHAGWIZA Applicant
And
ADVOCATE T CHETTY N.O. First Respondent
[In her capacity as the Chairperson of the Disciplinary
Committee constituted to conduct an inquiry into the
Conduct of the Applicant]
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
(4) Date: 20 April 2026
Signature: _
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MR GERSHON MOSIANE Second Respondent
[In his capacity as Proforma Complainant in the
Inquiry into the conduct of the Applicant]
CHAIRPERSON: MEDICAL AND DENTAL Third Respondent
PROFESSIONS BOARD
THE HEALTH PROFESSIONS COUNCIL OF Fourth Respondent
SOUTH AFRICA (“HPCSA”)
JUDGMENT
NYATHI J
A. Introduction
[1] This is a reconsideration under Uniform Rule 6(12)(c) of an urgent order granted
by my sister Potterill J on 27 November 2024 (“the urgent order”). The urgent
order condoned non‑compliance with the rules, stayed the Professional Conduct
Inquiry into the Applicant ’s conduct, and restrained the Respondents from
making any finding or imposing any sanction pending the finalisation of a review
application under the same case number.
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[2] The Respondents invoked Rule 6(12)(c) on 5 December 2024 to have the urgent
order reconsidered. They contend that (a) the matter was not urgent (indeed,
urgency was self ‑created), (b) insufficient time was afforded before the urgent
hearing contrary to the Gauteng Practice Manual, and (c) the Applicant failed to
establish a prima facie right to interim relief. The Applicant opposes, contending
inter alia that the Respondents ’ absence was not bona fide, that urgency was
established, and that he enjoys a prima facie right given the legality and
constitutional challenges forming the crux of the pending review.
B. The Factual Matrix (briefly)
[3] A Professional Conduct Committee convened virtually on 26 September 2024.
The Applicant sought a postponement on the basis of an intended review; this
was refused (save that the pro forma complainant was directed to furnish further
particulars). The matter was postponed to 26 –27 November 2024. On 27
November 2024 a further postponement was refused; the Applicant and his
representatives withdrew and approached this Court on an urgent basis. Service
of the urgent application occurred at approximately 14h11 fo r a 15h00 hearing
(stood down to 15h30); an order issued at about 15h55 in the Respondents’
absence.
[4] The review application raises, among others, challenges to the 2023
amendments to the Regulations under the Health Professions Act 56 of 1974
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(“the Act”), including the introduction of a “Preliminary Appeals Committee” (Reg
4A), the removal of a respondent’s right to further particulars (substituted Reg
7), and the designation of video‑conferencing as the default mode for inquiries.
C. Issues
[5] The issues for determination are:
5.1. Whether the Respondents have laid a proper basis for reconsideration under
Rule 6(12)(c), having regard to their absence when the urgent order was granted.
5.2. Whether the urgent order ought to be discharged because the matter was
not urgent, or because the Applicant’s non‑compliance with the Practice Manual
vitiated the proceedings.
5.3. Whether, applying the Setlogelo test as adapted post ‑Constitution, the
Applicant established the requisites for an interim interdict pendente lite.
D. The Rule 6(12)(c) Standard
[6] Rule 6(12)(c) exists to redress imbalances and potential injustice arising from an
urgent order granted in the absence of an affected party. It confers a wide
discretion to the Court. The absence of the aggrieved party has been termed the
‘underlying pivot’ to which the exercise of the power under the subrule is
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coupled1, but an applicant for reconsideration must still place before the Court a
candid, complete account of its absence and demonstrate that reconsideration
is warranted in the interests of justice.
[7] Here, the Respondents’ account of their absence is terse. They say the
application was served at 14h12; they attempted to secure appearance by an
attorney who arrived after the order had already been granted. The Applicant,
however, puts up unrefuted facts that an attorney (Ms Moduka) had
communicated with his legal team before 15h13, that the matter was stood down
to 15h30 to afford more time, and that still no notice to oppose or engagement
followed. The deponent for the Respondents omits material detail as to
instructions, timing, and steps taken between 14h11 and 15h55. On these
papers, the Respondents have not furnished a full and frank account of their
absence.
[8] Nonetheless, Rule 6(12)(c) is sufficiently elastic to permit this Court to reconsider
the urgent order even where the explanation is less than optimal, provided it is
in the interests of justice to do so. Given the public regulatory context and the
continued stay of disciplinary proceedings, I elect to reconsider the order on the
merits.
1 ISDN Solutions (Pty) Ltd v CSDN Solutions CC 1996 (4) SA 484 (W) at 486H; Kirpal v Peters (Unreported, GP case
no 32823/2021 dated 23 June 2022) at paragraph [11].
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E. Urgency and the Practice Manual
[9] The Respondents argue that urgency was self ‑created and that less than two
hours were afforded contrary to Chapter 13.24 of the Gauteng Practice Manual.
The Applicant answers that the committee refused to hear his postponement, he
had to exhaust internal remedies by first seeking relief before the committee, and
the hearing was imminent; further, the Practice Manual contemplates “usually
not less than 2 hours, ” which permits judicial departure in cases of extreme
urgency. On the day, the Court stood the matter down to allow appearance, yet
none was made.
[10] Urgency is fact‑specific. On these facts, the imminent continuation of the inquiry
in the face of a pending review challenging the committee’s very jurisdiction, the
committee’s refusal to hear a postponement application, and the potential for
irreversible prejudice establish sufficient urgency. The limited departure from the
“usually two hours” guide was within the urgent court’s discretion and, crucially,
additional time was afforded. I therefore decline to set aside the urgent order on
procedural grounds.
F. Interim Interdict: The Setlogelo Test (as adapted)
[11] An interim interdict requires (i) a prima facie right, though open to some doubt;
(ii) reasonable apprehension of irreparable harm; (iii) a balance of convenience
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favouring the applicant; and (iv) absence of a suitable alternative remedy,
applied through the prism of constitutional values (such as the Bill of Rights).
Prima facie right
[12] The Applicant’s review impugns Regulation 4A introducing a “Preliminary
Appeals Committee,” contending, in essence, that:
12.1 the Minister’s regulation ‑making power under s 61 does not
extend to creating a new appellate structure not authorised by
the Act;
12.2 the structure is impermissibly vague as to powers, composition
and procedure; and
12.3 it affords an appeal to a complainant but not to a respondent,
implicating equality and dignity concerns.
[13] The Respondents say Regulation 4A is purely procedural, falls within s 61(1)(h)
and (k), and does not affect substantive rights; they add that any alleged
unfairness is ameliorated by the respondent’s rights at the inquiry proper,
including legal representation and the opportunity to contest the case.
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[14] Without deciding the review, I am satisfied the Applicant has shown a prima facie
right open to some doubt. The challenge is neither contrived nor speculative; it
raises arguable questions of vires, legality and constitutional consistency about
an appellate structure not expressly located in the empowering Act, as well as
the asymmetry of appellate recourse between complainants and respondents.
The additional complaints about the abolition of a form al right to request further
particulars, and the default of virtual hearings, also present triable issues as to
procedural fairness in disciplinary processes with potentially career ‑limiting
consequences.
Irreparable harm
[15] Subjecting the Applicant to an inquiry under a structure he contends lacks
jurisdiction, with the possibility of adverse findings and sanction (including
suspension), constitutes harm not readily remediable post‑factum even if the
review ultimately succeeds. The spectre of a nullity after career damage suffices
to establish irreparable harm.
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Balance of convenience
[16] The Respondents caution that sustaining the stay risks emboldening other
practitioners to secure delays, threatening “a pattern” and an institutional
standstill. But the interim order is case ‑specific; no evidence of a systemic
pattern is advanced. The prejudice to the Applicant —being compelled to
undergo potentially unlawful proceedings —outweighs the administrative
inconvenience to the Respondents of pausing a single inquiry pending an
expeditious review. The balance of convenience favours maintaining the status
quo ante.
Alternative remedy
[17] The Respondents argue the Applicant can raise all complaints at the inquiry.
That misses the force of a legality challenge directed at the very source of power.
Where jurisdiction is impugned, insisting on participation may compound rather
than cure the harm. No adequate alternative remedy is shown.
G. Conclusion
[18] The Respondents have not shown that the urgent order should be set aside on
reconsideration. The Applicant established the requisites for interim relief
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pendente lite. The stay ensures that, should the review succeed, its outcome is
not rendered hollow by completed disciplinary proceedings; should it fail, the
inquiry may resume without lasting prejudice to the regulatory scheme.
H. Order
[19] The following order is made:
19.1 The application for reconsideration under Rule 6(12)(c) is
dismissed.
19.2 The urgent order of 27 November 2024 is confirmed, namely:
19.2.1 The Professional Conduct Inquiry into the Applicant’s conduct is
stayed; and
19.2.2 The Respondents are restrained from making any finding or imposing
any sanction on the Applicant, pending the final determination of the
review application under case number 2024/113106.
20.3. The review is to be enrolled on an expedited basis, with the
parties to deliver the necessary record and heads of argument in
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accordance with a timetable to be agreed within 10 days, failing which
either party may approach the Deputy Judge President for directions.
20.4. Costs: The Respondents shall pay the costs of this
reconsideration application, on a party and party scale B, jointly and
severally, the one paying the others to be absolved, including the
costs of two counsel where so employed.
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
Date of hearing: 20 August 2025
Date of Judgment: 20 April 2026
On behalf of the Applicant: Adv. C.H. Van Bergen SC
With him: Adv. A Coetzee
Applicant’s attorneys: MacRobert Attorneys, Pretoria
On behalf of the Respondent: Adv. J.G. Rautenbach SC
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Respondent’s attorneys: Yolanda Matwa Attorneys, Pretoria
Delivery: This judgment was handed down electronically by circulation to the parties' legal
representatives by email and uploaded on the CaseLines electronic platform. The date for hand-
down is deemed to be 20 April 2026.