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[2026] ZAGPJHC 682
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Fayker v Motshudi and Another (2025/136126) [2026] ZAGPJHC 682 (18 June 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
Number:
2025-136126
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
18
JUNE 2026
In the matter between:
SHIAM
FAYKER
Applicant
AND
MONTGOMERY
THAPELO MOTSHUDI
First Respondent
THE HEALTH PROFESSIONS
COUNCIL
OF
SOUTH AFRICA
Second Respondent
This Judgment is handed
down electronically by circulation to the Applicant’s Legal
Representatives and the Respondents by
email, publication on Case
Lines as well as Saflii. The date for the handing down is deemed to
be 18 June 2026.
Summary:
declaratory relief — Test for granting of — Two legs —
Applicant to prove interest in existing, future
or contingent right
or obligation — Court then to decide whether case appropriate
for exercise of its discretion to grant
declaratory relief applied
for —
Superior Courts Act 10 of 2013
,
s 21(1)
(c)
- application granted.
JUDGMENT
MUDAU, J:
Introduction
[1]
The applicant, Dr Shiam Fayker, is a
radiologist. She seeks a declaratory order and ancillary relief
against the first respondent,
Dr Montgomery Motshudi, also a
radiologist. The dispute arises from a complaint that the first
respondent lodged with the second
respondent, the Health Professions
Council of South Africa (‘HPCSA’), against ten
radiologists associated with Bergman
Ross and Partners Inc. (‘BRPI’).
The applicant is one of those ten.
[2]
Her complaint is simple: the first
respondent included her in his HPCSA complaint only because he
erroneously believed she was a
director of BRPI. She has never been a
director. The first respondent, despite being informed of the error
and despite his own
attorney’s letter admitting that her
inclusion was “solely” because she was a director,
refuses to withdraw the
complaint or to notify the HPCSA of his
mistake. The applicant now seeks this court’s intervention to
correct that error
before she is put to the expense and disruption of
a full disciplinary inquiry.
[3]
The first respondent opposes the
application on multiple grounds. He denies that the complaint was
based solely on her directorship;
he contends that the relief sought
is incompetent and that the court should not interfere with the
HPCSA’s processes; he
raises non joinder of BRPI; and he
argues that the application is not urgent and is an abuse of process.
[4]
For the reasons that follow, I conclude
that the applicant is entitled to the declaratory relief she seeks
and to an order compelling
the first respondent to withdraw the
complaint. The application is properly before this court as a
semi urgent matter, and
the first respondent’s opposition
lacks substance.
Background facts
[5]
The first respondent is engaged in
acrimonious shareholder litigation with BRPI (case no: 036875/2022
and 001371/2025). That dispute
concerns the ownership and control of
a radiology practice at Netcare Pinehaven Hospital. The applicant is
not a party to that
litigation. She is an employee of BRPI, but she
has no shareholding and no personal interest in the commercial
dispute.
[6]
On 26 June 2024, the first respondent,
through KNB Consulting (a firm owned by a former executive officer of
the HPCSA, Adv Boyce
Mackeson Mkhize), sought a policy determination
from the HPCSA regarding BRPI’s alleged undesirable business
practices. On
15 July 2024, the HPCSA advised him to lodge “a
formal complaint against the directors of BRP Inc.”
[7]
On 10 November 2024, the first respondent
lodged a complaint (“the initial complaint”) with the
HPCSA. The complaint
alleged that BRPI had engaged in theft, fraud,
and fronting in violation of the Broad Based Black Economic
Empowerment Act.
It attached a schedule (Schedule 1) listing ten
individual radiologists, including the applicant, as the
“professionals against
whom this complaint is lodged.”
The body of the complaint did not identify any specific misconduct by
the applicant. It did
not allege that she had personally received
fees for services not rendered, nor did it attribute any wrongful act
to her.
[8]
On 30 December 2024, the first respondent
delivered a lengthy “supplementary complaint.” That
document runs to many
pages with 59 annexures. It does not mention
the applicant by name. It does not identify any act or omission on
her part. It focuses
entirely on the conduct of BRPI as a corporate
entity.
[9]
On 27 June 2025, the first respondent’s
attorneys, MVMT Attorneys, wrote to the applicant’s attorneys,
Brian Kahn Inc.
(“BKI”). That letter was a response to a
demand from BKI that the first respondent explain the basis for
including
the applicant. The letter included the following
unequivocal statement (paragraph 10):
“
It
is further noted that our client has no personal relationship with Dr
Fayker and has never interacted with her directly.
Her
inclusion in the complaint flows solely from her representation as a
director of BRP Inc. during the relevant period.
”
(emphasis added)
[10]
On 21 July 2025, BKI responded, pointing
out that the applicant was never a director of BRPI, as confirmed by
a CIPC search (annexure
SF7). They demanded that the first respondent
withdraw the complaint against the applicant and notify the HPCSA
that he had been
mistaken. The first respondent, through MVMT,
refused on 10 August 2025.
[11]
On 30 May 2025, the HPCSA issued a ruling
imposing a penalty of R30,000 on the applicant. She rejected the
penalty, which triggered
a full disciplinary inquiry. On 5 August
2025, the HPCSA notified the applicant’s former attorneys that
the inquiry would
be held on 15 December 2025. This was the first
time the applicant learned of the hearing date. She launched the
present application
on 12 August 2025, in the ordinary course,
reserving the right to convert it to semi urgency if opposed.
[12]
On 3 November 2025, the HPCSA informed BKI
that the 15 December 2025 hearing would not proceed; the inquiry has
been postponed to
an unspecified date in February 2026. The HPCSA is
yet to hold that enquiry. That postponement does not render the
matter moot;
the applicant still faces a disciplinary inquiry on a
complaint that, on the first respondent’s own admission, was
based
on a factual error.
The relief sought
[13]
The applicant seeks:
(a)
A declaratory order that the only basis
upon which the first respondent included her in the complaint was
that she was at the material
time a director of BRPI.
(b)
A further declaratory order that she was at
no time a director of BRPI.
(c)
An order compelling the first respondent to
notify the HPCSA in writing that he does not want to pursue the
complaint against her
any further and that he withdraws the complaint
against her.
Preliminary issue:
Semi urgency
[14]
The first respondent contends that the
application is not urgent and that the attempt to convert it to
semi urgency is an abuse
of process. He points out that the
applicant knew of the complaint from December 2024 yet waited eight
months before launching
the application.
[15]
Rule 6(12) of the Uniform Rules of Court
permits a court to dispense with the ordinary time periods and hear a
matter on an urgent
basis where the applicant shows that substantial
injustice would otherwise result. The test is not mechanical; the
court has discretion,
to be exercised with due regard to the need for
expeditious resolution of disputes that cannot await the normal
course.
[16]
In my view, the applicant has adequately
explained the delay. Until 5 August 2025, she did not know when, or
if, the HPCSA would
hold an inquiry. The HPCSA had been unresponsive
to her correspondence. The 15 December 2025 date was
notified only three
days before the founding affidavit was finalised.
The applicant then acted promptly; she launched the application on
12 August 2025,
and when the first respondent made clear
his opposition, she moved to convert it to semi urgency on 22
September 2025.
[17]
The fact that the HPCSA has now postponed
the inquiry to February 2026 reduces the temporal urgency but
does not render the
matter moot. The applicant still faces the
prospect of a full disciplinary inquiry on a complaint that –
on the first respondent’s
own attorney’s admission –
was based on a factual error. She is entitled to have that issue
resolved before she is
put to the cost and disruption of a hearing.
To compel her to wait until after the inquiry (and then perhaps seek
review) would
be to force her to endure precisely the prejudice she
seeks to avoid. That would be a substantial injustice.
[18]
I therefore grant the application for
semi urgency. The court will dispense with the ordinary time
periods and hear the matter
on the shortened timeline proposed by the
applicant.
The merits:
Declaratory relief
[19]
Section
21(1)(c)
of the
Superior Courts Act 10 of 2013
provides that a court
may, at the instance of any interested party, inquire into any
existing, future or contingent right or obligation
and make a
declaration of rights, even if no consequential relief is claimed.
The court has wide discretion to be exercised judicially
[1]
,
but it will not make an academic or hypothetical declaration. There
must be a tangible advantage to the applicant.
[2]
[20]
The applicant has demonstrated a tangible
advantage. If the declaratory order is granted, the HPCSA will be
informed that the only
basis for the complaint against her was a
factual error (her alleged directorship). That will enable the HPCSA
to consider, in
the exercise of its own discretion, whether to
proceed with the inquiry against her. The applicant avoids being
forced to participate
in a lengthy and costly inquiry that, on the
first respondent’s own case, should never have included her.
[21]
The first respondent argues that the
complaint was not based “solely” on her directorship. He
now says that she was
included because she was “associated
with” BRPI or because her name appeared on letterheads. That
version is contradicted
by the clear, unambiguous words of his own
attorney’s letter of 27 June 2025. That letter was not a casual
remark; it was
a formal legal letter responding to a demand. It
stated in plain terms that her inclusion “flows solely from her
representation
as a director”. No other basis was advanced.
Neither the first respondent nor his attorney has offered any
explanation for
this contradiction.
[22]
The
answering affidavit contains only a bare denial; “These
allegations are denied insofar as they are at variance with what
is
stated by me in this regard above.” That is insufficient. As
the Supreme Court of Appeal held in
Wightman
t/a JW Construction v Headfour (Pty)
[3]
at
para [13]:
“
A
real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise the
dispute
has in his affidavit seriously and unambiguously addressed the fact
said to be disputed. There is no room for mere shadowy
or elusive
disputes of fact. A party who wishes to raise a dispute of fact must
do so in a manner which, if the dispute is not
resolved on the
papers, will leave the court with no alternative but to order oral
evidence.”
[4]
[23]
The first respondent has not engaged with
the explicit terms of his own attorney’s letter. He has not
explained why his attorney
would have stated “solely” if
that was not the truth. He has not suggested that the letter was
written without his
authority or that it contained a drafting error.
In the face of such a clear admission, a bare denial does not create
a genuine
dispute of fact.
[24]
I, therefore, find that the first
respondent’s attorney’s letter of 27 June 2025
constitutes an admission
that the applicant’s inclusion in the
complaint was solely because he believed she was a director of BRPI.
That belief was
objectively false, as the CIPC records demonstrate.
The applicant has never been a director of BRPI. The CIPC records are
prima
facie proof of the facts they record, and the first respondent
has produced no evidence to the contrary. There is no genuine dispute
on that point.
[25]
The declaratory orders sought are
accordingly competent and appropriate.
The order compelling
withdrawal
[26]
The applicant asks the court to compel the
first respondent to notify the HPCSA that he withdraws the complaint
against her. The
first respondent objects, arguing that once a
complaint is lodged, it falls within the exclusive jurisdiction of
the HPCSA, and
the court cannot interfere.
[27]
That objection misstates the law. The court
cannot dictate how the HPCSA conducts its proceedings, but it can
direct a private litigant
(the first respondent) to take steps that
are within his power. The first respondent is free to withdraw his
complaint at any time.
The HPCSA has no rule that prevents a
complainant from withdrawing. The relief sought does not compel the
HPCSA to do anything;
it merely compels the first respondent to
communicate his withdrawal to the HPCSA.
[28]
The HPCSA may indeed decide, even after
withdrawal, that it has sufficient information to continue the
inquiry on its own motion.
That is a matter for the HPCSA. But the
applicant is entitled to have the first respondent formally record
that he no longer wishes
to pursue the complaint against her. That
will at least give the HPCSA a full picture and may well influence
its decision. Moreover,
the first respondent’s refusal to
withdraw, after learning of his error, is itself unreasonable and
causes ongoing prejudice
to the applicant. I am accordingly satisfied
that the applicant has established, given the background facts in
this matter, an
interest in an 'existing, future or contingent right
or obligation ' pursuant to
section 21
(1) (c) of the
Superior Courts
Act.
[29
]
I will therefore grant an order directing
the first respondent to notify the HPCSA in writing that he withdraws
the complaint against
the applicant and that his inclusion of her was
based on the erroneous belief that she was a director of BRPI.
Non joinder of
BRPI
[30]
The first respondent argues that BRPI
should have been joined because it has a direct and substantial
interest in any declaration
about its directorate and the alleged
misrepresentation of the applicant as a director.
[31]
This point is without merit. The relief
sought does not determine any right or obligation of BRPI. It does
not declare that BRPI
misled anyone. It does not invalidate any
corporate record. It simply declares the factual basis of the first
respondent’s
complaint – a fact that concerns the
relationship between the first respondent and the applicant, not the
legal relationship
between the applicant and BRPI. The declaration
that the applicant was never a director of BRPI is a finding of fact,
not an order
binding on BRPI. In any event, the applicant has since
filed an affidavit from Jack Bregman on behalf of BRPI stating that
BRPI
has no objection to the relief sought. That removes any possible
prejudice.
[32]
The
first respondent’s reliance on the doctrine of non joinder
is therefore misplaced.
[5]
Alternative remedies
[33]
The first respondent contends that the
applicant has alternative remedies: she can make representations to
the HPCSA, request removal
from the inquiry, or await a final
decision and then review it. These are not adequate alternatives in
the circumstances.
[34]
The HPCSA has no procedure for pre hearing
removal of a party based on a complainant’s error. The
applicant has already
written to the HPCSA (annexures SF10, SF11,
SF14) and received no substantive response. The HPCSA’s own
conduct – its
delays, its unresponsiveness, and its failure to
update the applicant’s address for service – hardly
inspires confidence
that a simple request for removal would be dealt
with expeditiously or fairly.
[35]
Moreover, the applicant is not challenging
the HPCSA’s decision. She is seeking to correct the factual
predicate on which
the complaint was based. That is precisely the
kind of issue that declaratory relief is designed to resolve. To
require her to
wait for a final decision and then bring a review
application would be to force her to incur the very costs and
prejudice she seeks
to avoid. That would not be a meaningful
alternative remedy.
Abuse of process
[36]
The first respondent accuses the applicant
of launching this application as a tactical ruse to harass him in the
context of the
BRPI shareholder litigation. There is no evidence to
support that serious allegation. The applicant is not a party to that
litigation.
She has no commercial interest in its outcome. Her
concern is her professional reputation and the cost and disruption of
a disciplinary
inquiry. That is a legitimate concern, and she is
entitled to seek judicial relief.
[37]
The fact that the applicant has also
instituted action proceedings for damages against the first
respondent does not make this application
an abuse. She is entitled
to protect her rights by multiple legal avenues if they are genuinely
available. The first respondent’s
characterisation of the
application as “contrived” and “a stratagem”
is speculative and unsupported.
Public interest
considerations
[38]
There is a broader public interest at
stake. The HPCSA’s disciplinary processes are essential to
maintaining professional
standards, but they must be conducted fairly
and based on correct facts. A complainant who makes a material
factual error that
is later brought to his attention has a duty, both
ethical and legal, to correct that error. To persist with a complaint
on a false
factual basis, after being informed of the truth, is
itself arguably unprofessional conduct. The first respondent’s
refusal
to withdraw or even to acknowledge his mistake undermines the
integrity of the HPCSA’s processes.
[39]
The court should not be seen to condone
such conduct. Granting the relief sought will send a clear message
that complainants before
professional bodies must act bona fide and
cannot rely on false factual premises once those premises have been
exposed.
Costs
[40]
The first respondent has opposed the
application on grounds that are, for the most part, without
substance. His opposition forced
the applicant to convert the matter
to semi urgency and to incur additional costs. However, the
applicant did delay somewhat
before launching the application, and
the first respondent was entitled to raise the non joinder point
(even if it ultimately
fails). In all the circumstances, I consider
it just that the first respondent pays the costs of the application,
but not on a
punitive scale. The costs shall be on the ordinary
party and party scale, including the costs of counsel.
[41]
I have considered the first respondent’s
request for costs on Scale C of
Rule 67A.
That scale is reserved for
matters of exceptional complexity or importance. While this matter
raises important issues, it is not
so complex as to justify Scale C.
Ordinary costs are sufficient.
Order
[42]
Accordingly, I make the following order:
1.
It is declared that:
(a)
The only basis upon which the first
respondent included the applicant in the complaint lodged with the
Health Professions Council
of South Africa (“HPCSA”) on
10 November 2024, as amplified on 30 December 2024, was that the
first respondent believed
the applicant to be a director of Bergman
Ross and Partners Inc. (“BRPI”).
(b)
The applicant was at no time a director of
BRPI.
(c)
The first respondent is ordered, within
five (5) days of service of this order, to notify the HPCSA in
writing that:
(d)
He withdraws the complaint against the
applicant.
(e)
His inclusion of the applicant in the
complaint was based on the erroneous belief that she was a director
of BRPI, and he has now
been informed that she has never been a
director.
(f)
The first respondent shall furnish a copy
of this order together with his notification to the HPCSA.
(g)
The first respondent shall pay the costs of
the application, on the party and party scale, such costs
to include the costs
of senior counsel on scale C.
MUDAU J
JUDGE OF THE HIGH
COURT
GAUTENG
DIVISION, JOHANNESBURG
APPEARANCES
For
the Applicants:
Adv BM Gilbert SC
Instructed
by:
Brian Kahn Inc
For
the 1
st
Respondent:
Adv G Benson
Instructed
by
MVMT Attorneys
For
the 2
nd
Respondent:
No opposition
Date
of Hearing:
25 May 2026
Date of
Judgment:
18 June 2026
[1]
Cronje
v Pelser
1967
(2) SA 589
(A) at 593.
[2]
See
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
[2005]
ZASCA 76
;
2005 (6) SA 205
(SCA); Pasiya and Others v Lithemba Gold
Mining (Pty) Ltd and Others 2024 (4) SA 118 (SCA).
[3]
[2008]
ZASCA 6; [2008] 2 All SA 512 (SCA); 2008 (3) SA 371 (SCA).
[4]
Wightman
t/a JW Construction v Headfour (Pty)
op
cit n2 para 13.
[5]
See
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A);
Kethel
v Kethel’s Estate
1949 (3) SA 598
(A) at 610;
Watson
NO v Ngonyama
2021 (5) SA 559
(SCA) para 51.