REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
1
CASE NO: 60785-2020
(1 ) REPORTABLE: ~/NO
(2) OF INTERST TO OTHER JUDGES: ~/NO
(3) REVISED: '$/NO
DATE
In the matter between:
KOMMAL, TERENCE OMDUTT Applicant
and
HEALTH PROFESSIONAL COUNCIL OF SOUTH AFRICA Respondent
SUMMARY:
The applicant sought to compel the HPCSA to produce further unspecified documents
in disciplinary proceedings against him. The court found that the HPCSA had furnished
all documents in its possession , including copies of the power of attorneys signed by
the applicant's complainant patients pertaining to his alleged misconduct. The court
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refused to order indeterminate disclosure. The court made the observations that the
applicant's review application was defective for want of condonation but made no
definitive ruling on the review. A procedurally flawed demand for immediate recusal of
the presiding Judge was conveyed by correspondence following an enquiry from the
applicant's attorneys on the status of the leave to appeal application that has been
delayed by over a year. Applicant's counsel having been made aware of the demand
for recusal and, upon taking instructions, proceeded with the leave to appeal
application. Leave to appeal dismissed with punitive costs.
JUDGMENT
MBONGWE, J:
INTRODUCTION
[1] This is an application for leave to appeal against the judgment of this court
delivered on 26 February 2024, in which the applicant's Rule 30A application
was dismissed with costs.
[2] The applicant had sought to compel the respondent, the Health Professions
Council of South Africa ("HPCSA"), to produce further documents said to be
necessary for the disciplinary proceedings instituted against him. The
respondent opposed the application, contending in the answering affidavit that
all documents in its possession had already been furnished. This court held that
it could not issue the order sought in the circumstances, and that the necessary
documents , including copies of the signed Powers of Attorney forming the
foundation of the complaints (and purportedly to be used in claims against the
Road Accident Fund) were attached to the written complaints filed.
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[3] It is necessary to state that from the arguments by counsel for the applicant,
the further unspecified documents sought pertain to the composition of the
committee(s) that decided that disciplinary action be taken against the applicant
and on the preferred appropriate charges, respectively. I found on this basis
that the application is anchored on form at the expense of substance and
concluded that no further unspecified disclosure could be compelled under Rule
30A.1
RECUSAL AND ALLEGED REPORTING
[4] I pause to state that an email dated 10 February 2026 was addressed by the
Judge's Secretary to the Applicant's attorneys enquiring about the status of the
application for leave to appeal following a delay of more than a year since the
hearing was postponed on 05 December 2024 as a result of the absence of the
Applicant's legal representatives in court. The Applicant's attorneys responded
by an email dated 27 February 2026 demanding that the Judge immediately
recuse himself from the matter and advising that he had been reported to the
Judicial Service Commission (JSC).
[5] The demand for recusal was procedurally flawed. A recusal application must
be properly placed before the court, supported by evidence and argument. 2 A
demand for recusal does not automatically disqualify a Judge from presiding.3
[6] In the course of the perusal of the papers, I observed that the applicant's review
application was defective in form, having been filed well out of time and without
an accompanying application for condonation.4 This Court made no definitive
1 Rule 30A of the Unifo rm Rules of Court- see Herbstein & Van Winsen , The Civil Practic e of t he High
Courts of South Afric a (5ed) at 932.
2 Proper procedur e for recusal: President of the Republic of South Africa v South African Rugby Football
Union 1999 (4) SA 147 (CC) at para 48.
3
Reporti ng to the JSC does not itself disqu alify a Judge: see SARFU (supra) and S v Basson 2007 (3) SA
582 (CC).
582 (CC).
• Rule 53 review applications - cond onation requ ired for late fili ng: Wolgroeiers Afslaers (Pty) Ltd v
Munisipaliteit van Kaapstad 1978 (1) SA 13 (A).
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ruling on the merits of the review, and the operative order was confined to the
Rule 30A application.
[7] At the hearing of the application for leave to appeal on 03 March 2026 when
the matter was called, counsel for the Applicant was asked about the demand
for the Judge's recusal. He expressed surprise and indicated that he had not
been aware of the demand and reporting to the JSC. He asked to be permitted
to obtain instructions. On his return, he advised that his instructions were to
proceed with the application for leave to appeal, without addressing the issues
of the recusal and reporting.
LEAVE TO APPEAL
[8] The hearing of the application for leave to appeal accordingly proceeded. The
applicant's grounds include the contention that the impugned judgment
unwarrantedly dealt with the review application, and that the Court erred in
finding that the documents furnished were sufficient for the disciplinary
proceedings.
[9] Counsel for the HPCSA contented, correctly so in my view that documentary
evidence necessary in the disciplinary hearing is available and attached to the
complaint and that the HPCSA was obliged to act thereon to protect its
institutional integrity.
[10] The principles governing leave to appeal are well-established: leave will be
granted where there is a reasonable prospect that another court would come to
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a different conclusion, or where the matter raises an issue of public
importance.5
[ 11] On the facts, I am satisfied that there is no reasonable prospect that another
court would come to a different conclusion. The Rule 30A application was
correctly dismissed, the review application as it stands is procedurally defective,
and the recusal demand was irregular. The HPCSA was entitled to initiate
disciplinary proceedings on the strength of complaints supported by
documentary evidence. The applicant's attempt to compel unspecified
disclosure was misconceived.
CONCLUSION
[12] The conduct of the applicant's attorneys in delaying the prosecution of this
application for over a year, the failure to explain their absence in court on the
5th December 2024 as well as the procedurally misplaced demand for
immediate recusal constitute unprofessional conduct. It has to be stated that
counsel for the applicant, Advocate Snyman SC indicated to the court that he
had not been briefed to represent the applicant on the 5th December 2024. It
will be amiss not to report this unprofessional conduct of the applicant's
attorneys to the Legal Practice Council ("LPC").
ORDER
[13] In line with the findings in this judgment, the following order is made:
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Test for leave to appeal: S v Smith 2012 (1) SACR 567 (SCA) at para 7.
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1. The application for leave to appeal is dismissed with costs on the
attorney-and-client scale, including the costs of Senior Counsel on scale C.
2. It is directed that a copy of this judgment is served on the LPC.
APPEARENCES
For the Applicant:
Instructed by:
For the First Respondent:
Instructed by:
Date of Hearing:
Date of Judgement:
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
ADV SNYMAN SC
Mohamed Seed at Attorneys
ADV MOJAPELO SC
Mkhonto & Ngwenya Attorneys Inc.
03 March 2026
28 May 2026
THIS JUDGMENT WAS ELECTRONICALLY TRANSMITTED TO THE PARTIES'
LEGAL REPRESENTATIVES AND UPLOADED ONTO CASELINE ON 28 MAY
2026.