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[2018] ZASCA 1
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Basson v Hugo and Others (968/16) [2018] ZASCA 1; [2018] 1 All SA 621 (SCA); 2018 (3) SA 46 (SCA) (17 January 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 968/16
In
the matter between:
DR
WOUTER BASSON
APPELLANT
and
PROF
J F M HUGO
FIRST
RESPONDENT
PROF
R E
MHLANGA
SECOND RESPONDENT
HEALTH
PROFESSIONS COUNCIL
OF
SOUTH AFRICA
THIRD RESPONDENT
Neutral
citation:
Basson v Hugo & others
(968/16)
[2017] ZASCA 192
(01 January 2018)
Coram:
Shongwe AP, Seriti and Swain JJA and Mokgohloa and Schippers AJJA
Heard:
24 November 2017
Delivered:
17 January 2018
Summary:
Promotion of Administrative Justice Act 3 of 2000
,
s 7(2)
–
failure to exhaust internal remedy prior to instituting judicial
review proceedings – whether this is an appropriate
case to
grant exemption in terms of
s 7(2)
(c)
where administrator
alleged to be biased or reasonably suspected of bias – court
finding that internal remedy ineffective
and inadequate.
ORDER
On appeal from:
The Gauteng Division, Pretoria (Unterhalter AJ sitting as court of
first instance):
1 The appeal is upheld
and the order of the court a quo is set aside.
2 The third respondent is
ordered to pay the costs of the proceedings before the court a quo
and the costs of appeal, such costs
to include the costs of two
counsel.
3 The case is remitted to
the Gauteng Division of the High Court, Pretoria, to decide the
review application.
JUDGMENT
Shongwe
AP (Seriti JA and Mokgohloa and Schippers AJJA concurring)
[1]
The issue in this appeal is whether the appellant was obliged to
exhaust an internal remedy as contemplated in s 7(2) of the Promotion
of Administrative Justice Act 3 of 2000 (PAJA), before launching
an
application to review and set aside a decision taken on 13 March 2015
by the third respondent, the Health Professions Council
of South
Africa (the Council), in terms of which an application for the
recusal of the second and third respondents on the ground
of bias,
was refused (the impugned decision).
[2]
The matter arises from a disciplinary inquiry which the Council
launched against the appellant, Dr Wouter Basson, under the Health
Professions Act 56 of 1974 (the Act). The appellant is a cardiologist
practising in the Western Cape. In 2007 he was charged with
unprofessional conduct before a professional conduct committee (the
Committee) constituted in terms of 15(2)(
f
) of the Act,
comprising Professor J F M Hugo as Chairperson, Professor R E Mhlanga
and the late Judge Eloff, then retired. The
conduct in question
related to the appellant’s participation in chemical and
biological warfare research during his employment
with the South
African Defence Force in the 1980s.
[3]
In December 2013 the Committee found that the appellant had breached
established ethical rules of the medical profession and he was found
guilty of unprofessional conduct on four of the charges brought
against him. In January 2015 the pro forma prosecutor called Mr
Martin Heywood, a director of a law clinic, as a witness in
aggravation
of sanction. Mr Heywood submitted two petitions for the
removal of the appellant’s name from the Register of Medical
Practitioners
(the register), by registered health professionals and
organisations working in the fields of human rights and law. One of
these
petitions was supported by various organisations, including the
South African Medical Association (SAMA) and the Rural Doctors
Association of South Africa (RUDASA).
[4]
At the hearing in January 2015 the appellant’s counsel asked
the Committee whether the first and second respondents were members
of any of the organisations that had endorsed the petitions
calling
for his removal from the register. The Committee noted the request
and ruled that the hearing proceed, without furnishing
the
information requested. The appellant’s counsel then asked the
Committee for an adjournment to consider his position,
which was
granted. On resumption of the proceedings, the appellant’s
counsel requested an adjournment till the next morning
to take
instructions to approach the high court for an order compelling the
respondents to furnish the information. That request
was refused and
the appellant and his counsel excused themselves from the
disciplinary inquiry.
[5]
The Committee proceeded forthwith to hear evidence by Professor Marc
Blockman, the Chair of the Human Research Ethics Committee at the
University of Cape Town, in aggravation of the penalty to be
imposed.
Professor Blockman expressed the opinion that despite having been
found guilty of unprofessional conduct, the appellant
had shown no
accountability, no responsibility and was a disgrace to the
profession. He then referred to a petition signed by various
health
professionals who called on the Council to remove the appellant’s
name from the register.
[6]
In the interim, the appellant approached the high court urgently
and
obtained an order prohibiting the respondents from proceeding with
the disciplinary inquiry, pending the finalisation of an
application
compelling them to furnish information relating to their membership
of the organisations that supported the petition
for his removal from
the register. In an explanatory affidavit in that application,
Professor Hugo confirmed that he is a member
of SAMA and was
associated with RUDASA, and that he did not have any interaction with
RUDASA for three years prior to January 2015.
He stated that he did
not participate in the processes that led to the relevant petitions;
and that Professor Mhlanga advised him
that he is not a member of any
of the organisations in question.
[7]
In March 2015 the appellant applied to the Committee for the recusal
of Professors Hugo and Mhlanga, on the grounds that Professor Hugo
has an interest in the subject matter of the inquiry; and actual
or a
reasonable apprehension of bias on the part of both these members of
the Committee. The application for recusal was refused
by the
Committee. The appellant then approached the court a quo to review
and set aside the impugned decision.
[8]
The review application was dismissed and the appellant was directed
to exhaust his internal remedy of appeal before an ad hoc appeal
committee in terms of the Act, ‘should he wish to do so’.
The court a quo concluded that the review application was premature
as the appellant had a duty to exhaust an internal remedy before
approaching the court to review and set aside the impugned decision.
It found that the appellant had not complied with such duty;
that he
failed to show exceptional circumstances in terms of s 7(2)
(c)
of
PAJA; and that it was not in the interests of justice to exempt him
from the obligation to exhaust an internal remedy. That remedy,
the
court a quo held, is an appeal to an ad hoc appeal committee
established under s 10(2) of the Act, which in terms of s 10(3),
has
the power to vary, confirm or set aside a finding of the Committee,
or to refer the matter back to the Committee with such
instructions
as it may deem fit.
[9]
Before us the appellant contended that in terms of s 42(1A) of the
Act, a penalty imposed by a committee remains effective until the
appeal is finalised. This situation, so the appellant argued,
is
prejudicial to him, in that such penalty would cause irreparable harm
to his practice. He further argued that the sanction would
be imposed
by the same persons he wanted to have recused. The appellant
conceded that courts are ordinarily opposed to hearing
appeals and
reviews piecemeal, but argued that this was a case where the court a
quo should have exercised its discretion and found
exceptional
circumstances, and thus have exempted him from the duty to exhaust
the internal remedy.
[10]
On the other hand, the third respondent contended that the court a
quo was correct in finding
that before applying for judicial review
by a high court, the appellant had to exhaust the internal remedy as
envisaged in s 10(3)
of the Act, read together with 8(1) of the
Regulations relating to the conduct of inquiries into alleged
unprofessional conduct
(GN 765,
GG
22584, 24 August 2001),
which sets out the procedure for appeals from the Committee to
an appeal committee. The third
respondent further contended
that the appeal committee would be seized with the whole record of
the proceedings of the Committee
as the appellant brought a
substantive application for the recusal of the first and second
respondents; therefore the appeal committee
would have to consider
the appeal as a normal appeal. It was also contended that the appeal
committee has the power not only to
set aside the findings of the
committee, but also the proceedings as a whole. The respondent asked
this court to find that the
appellant is not entitled to exhaust his
internal appeal remedy for the recusal of Professors Hugo and
Mhlanga, until the entire
case has been completed and the Committee
has imposed sanction.
[11]
The starting point in determining whether the appellant was obliged
to exhaust the internal
remedy in s 10(3) of the Act, is s 7(2) of
PAJA. It reads:
‘
(a)
Subject to paragraph
(c)
, no court or tribunal shall review an
administrative action in terms of this Act unless any internal remedy
provided for in any
other law has first been exhausted.
(b)
Subject to paragraph
(c)
, a court or tribunal must, if it is
not satisfied that any internal remedy referred to in paragraph
(a)
has been exhausted, direct that the person concerned must first
exhaust such remedy before instituting proceedings in a court or
tribunal for judicial review in terms of this Act.
(c)
A court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person from the
obligation to exhaust any internal remedy if the court or tribunal
deems it in the interests of justice.’
[12]
It is settled that the impugned decision
constitutes administrative action as defined in PAJA (
SA
Veterinary Council & another v Veterinary Defence Force
Association
[2003] ZASCA 27
;
2003 (4)
SA 546
(SCA) para 34). Therefore, an internal remedy must be
exhausted prior to judicial review, unless the appellant can show
exceptional
circumstances to exempt him from this requirement (
Koyabe
& others v Minister for Home Affairs & others (Lawyers for
Human Rights as
amicus curiae
)
[2009] ZASCA 23
;
2010 (4) SA 327
(CC) para 34;
Nichol
& another v Registrar of Pension Funds & others
[2005] ZASCA 97
; 2008 (1) 383 (SCA) para 15). What constitutes
exceptional circumstances depends on the facts and circumstances of
the case and
the nature of the administrative action in issue (
Koyabe
supra para 39). Factors taken into account in deciding whether
exceptional circumstances exist are whether the internal remedy
is
effective, available and adequate. An internal remedy is effective if
it offers a prospect of success, and can be ‘objectively
implemented, taking into account relevant principles and values of
administrative justice present in the Constitution and our law’;
and available if it can be pursued ‘without any obstruction,
whether systemic or arising from unwarranted administrative
conduct’
(
Koyabe
supra
para 44). An internal remedy is adequate if it is capable of
redressing the complaint (
Koyabe
supra
paras 42, 43 and 45).
[13]
Section 10 of the Act provides in material part as follows:
‘
(2) The
council shall establish
ad
hoc
appeal committees, each
consisting of, as chairperson, a person with knowledge of the law
with at least 10 years’ relevant
experience, not more than two
registered persons drawn from the profession of the registered person
in respect of whose conduct
a professional conduct committee of a
professional board had held an inquiry, and a member of the council
appointed to represent
the community.
(3) An
appeal committee referred to in
subsection
(2)
shall
have the power to vary, confirm or set aside a finding of a
professional conduct committee established in terms
of section
15(5)
(f)
or
to refer the matter back to the professional conduct committee
with such instructions as it may deem fit.’
[14]
Regulation 8 sets out the appeal procedure. The relevant provisions
read:
‘
(1)
The accused or pro forma complainant may appeal to the appeal
committee against the finding and/or penalty of the professional
conduct committee to the appeal committee.
(2)
The appellant shall inform the registrar by notice within three weeks
from the date of the professional conduct committee’s
decision
of his or her intention to appeal against the finding and/or penalty.
(3)
The registrar shall provide the appellant with a copy of a transcript
of the proceedings at the inquiry within one month from
the date on
which the registrar received a written notice of appeal.
(4)
The appellant shall file six copies of his or her papers setting out
the grounds for appeal and containing heads of argument
with the
registrar within one month from the date on which he or she received
a copy of the transcript referred to in subregulation
(3).
(5)
The appeal shall only be heard on the papers referred to in
subregulation (4).’
[15]
Section 20 of the Act provides for an appeal to a high court. It
reads:
‘
(1)
Any person who is aggrieved by any decision of the council, a
professional board or a disciplinary appeal committee, may appeal
to
the appropriate High Court against such decision.’
[16]
The court a quo held that an appeal committee is empowered to
consider the merits of the recusal application
and the finding of the
Committee to refuse it, in the light of the following circumstances.
The recusal application was made by
way of a formal application; the
facts and law relied upon in support of the application were before
the Committee; and the appeal
committee would be assisted by a full
record of proceedings of the Committee. If the Committee came to an
incorrect finding and
should have found that Professors Hugo and
Mhlanga should have recused themselves, the court reasoned, the
appeal committee, in
terms of s 10(3) of the Act, has the power to
set aside and correct the Committee’s finding.
[17]
The
court a quo’s finding that an appeal committee is empowered to
consider the merits of the recusal application presupposes
that the
impugned decision is merely voidable, which is somehow rendered valid
as a result of a subsequent decision by the Committee
on sanction, or
by an appeal committee. However, in
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service
[1996]
ZASCA 2
;
1996 (3) SA 1
(A) at 8J-9B, this court rejected the notion
that a refusal by a judge (in this case an administrator) to recuse
himself from proceedings
in respect of which he is reasonably
suspected of bias, renders that decision voidable; and held that the
consequence of a failure
to recuse renders the proceedings a nullity.
Hefer JA observed:
‘
The
effect of a refusal to do so is clear. Unlike the seemingly
controversial status in English administrative law of the decisions
of biased officials (cf Craig
Administrative
Law
3
rd
ed at 467-8; Wade ‘Unlawful Administrative Action: Void or
Voidable’
(1968) 84
LQR
95)
, firm and authoritative views have been expressed in South Africa
regarding the effect on judicial proceedings of a Judge’s
refusal to withdraw from the matter from which he should have recused
himself. Without spelling out its actual effect, Centlivres
CJ
observed in
R v Milne and Erleigh (6)
(
supra
at
6
in fin
)
that a biased Judge who continues to try a matter after refusing an
application for his recusal thereby
“
commits
… an irregularity in the proceedings every minute he remains
on the bench during the trial of the accused.”
’
[18]
Hefer JA went on to say (at 9C) that the judgment in
Council of
Review, South African Defence Force, & others v Mönnig &
others
1992 (3) SA 482
(A) is more explicit. If a presiding
officer should have recused himself, proceedings conducted after
dismissal of an application
for recusal must be regarded as never
having taken place at all (
Mönnig
supra at 495A-D). In
the instant case, the appellant’s complaint was not that the
finding of the Committee is an irregularity
committed by an otherwise
competent tribunal. Instead, his complaint was that the Committee
lacked competence from the outset,
because of actual or a reasonable
apprehension of bias on the part of two of its members. Stated
differently, the appellant alleged
that by virtue of its composition,
the Committee could not exercise jurisdiction over him. So, this is
not a case where the Committee
wrongly acted within its jurisdiction:
the appellant alleged that it had no jurisdiction from the start. The
issue is one of elementary
justice.
[19]
Therefore, should it be found that Professors Hugo and Mhlanga ought
to have recused themselves, the proceedings
before the Committee
would be a nullity (
Moch
supra at 9G). An appeal under s 10(3)
of the Act cannot cure the lack of jurisdiction, for one cannot
appeal against a nullity.
And the logical implication of the nullity
of the proceedings at the first stage, is that any appellate
proceedings must suffer
the same fate, ie they should also be treated
as void (
Moch
supra at 9J-10A).
[20]
In addition, the appellant is entitled to fairness at every stage of
the disciplinary proceedings. As this
court said in
Slagment (Pty)
Ltd v Building Construction and Allied Workers’s Union &
others
[1994] ZASA 108;
1995 (1) SA 742
(A) at 756:
‘
The
question whether it is possible for an appellate tribunal to correct
an administrative decision which is impeachable on the
grounds of
unfairness, is discussed by Baxter, Administrative Law, at 588-9. The
learned author states that in the first place,
a complainant is
entitled to fairness at all stages of the decision-making process,
and he quotes from the judgment of Megarry
J in the English case of
Leary v National Union of Vehicle
Builders
[1971] Ch 34
at 49:
"If
the rules and the law combine to give the member the right to a fair
trial and the right of appeal, why should he be told
that he ought to
be satisfied with an unjust trial and a fair appeal?" ’
[21]
Further, the appellant claimed a remedy beyond the powers of an
appeal committee: it does not exercise original
jurisdiction and
cannot hear the matter
de novo
, with or without new evidence
or information (compare
Nichol
supra paras 20-22). Its powers
are limited to varying, confirming or setting aside a finding by the
Committee, or remitting a matter
to the Committee. An appeal
committee does not have the power to set aside
the
proceedings
before the Committee. This is underscored by reg 8(1) which confines
an appeal to a finding or penalty of the Committee; and reg
8(5)
which provides that an appeal ‘shall only be heard on the
papers referred to in subregulation (4)’, ie the transcript
of
the proceedings at the inquiry, and an appellant’s papers
comprising the grounds of appeal and heads of argument. The
internal
remedy in s 10(3) of the Act is an appeal in the narrow sense (
Tikly
& others v Johannes NO & others
1963 (2) SA 588
(T) at
591F-591A), and thus inadequate. Professor Hoexter (Cora Hoexter
Administrative Law in South Africa
2 ed (2012) at 388) puts it
thus:
‘
With
a narrow appeal, however, the appellate body is confined to the
record, which means that the “taint” of the unfairness
is
inevitably carried forward to the appellate hearing.’
[22]
For these reasons alone, the court a quo should have found that there
were exceptional circumstances as contemplated
in s 7(2)
(c)
of
PAJA, which required the immediate intervention of the court rather
than resort to the internal remedy under s 10(3) of
the Act
(
Nichol
supra para 16). The internal remedy is ineffective and
inadequate: it does not offer a prospect of success and cannot
redress the
appellant’s complaint.
[23]
The internal remedy in s 10(3) of the Act is moreover ineffective and
inadequate, because it cannot be implemented
in accordance with the
relevant principles and values of administrative justice of the
Constitution (
Koyabe
supra para 44). In
President of the
Republic of South Africa & others v South African Rugby Football
Union & others
[1999] ZACC 9
;
1999 (4) SA 147
(CC) para 28),
the Constitutional Court, affirming
Mönnig
(supra at
491E-F), held that the recusal right is designed to ensure that a
person accused before a court should have a fair trial;
that the
right to a fair trial in criminal proceedings has now been entrenched
in s 35(3) of the Constitution; and that s
34, which guarantees
the right to have a dispute decided ‘in a fair public hearing
before a court or, where appropriate,
another independent and
impartial tribunal or forum’, applies to other proceedings.
[24]
The Act and s 10(3) in particular, must be construed in a way that
gives effect to the spirit, purport and
objects of the Bill of Rights
(s 39(2) of the Constitution), one of which is s 34 of the
Constitution. The common law, which is
‘law’ within the
meaning of s 8(1) of the Constitution, is also subject to s 34 and in
terms of s 39(2) must be developed
in accordance with its provisions
(
Sarfu
supra para 28).
[25]
As was held in
Sarfu
(supra para 48), an impartial Judge (or
other presiding officer) is a fundamental prerequisite for a fair
trial and a presiding
officer should not hesitate to recuse herself
or himself where a litigant has reasonable grounds to apprehend that
the presiding
officer, for whatever reason, was not or will not be
impartial. Impartiality, the Constitutional Court has said, ‘is
the
keystone of a civilised system of adjudication’; and an
absolute requirement in every judicial proceeding and proceedings
before other tribunals (see also
South
African Commercial Catering & Allied Workers Union & others v
Irvin & Johnson Ltd (Seafoods Division Fish Processing)
[2000] ZACC 10
;
2000 (3) SA 705
(CC) para 13). The reason is that:
‘
A
cornerstone of any fair and just legal system is the impartial
adjudication of disputes which come before courts and other
tribunals.
. . . Nothing is more likely to impair confidence in such
proceedings, whether on the part of litigants or the general public,
than actual bias or the appearance of bias in the official or
officials who have the power to adjudicate on disputes’
(
Sarfu
supra
para 35;
Saccawu
supra para 13).
[26]
The rule against bias is thus firmly anchored to public confidence in
the legal system, and extends to non-judicial
decision-makers such as
tribunals. And the rule reflects the fundamental principle of our
Constitution that courts and tribunals
must not only be independent
and impartial, but must be seen to be such; and the requirement of
impartiality is also implicit,
if not explicit in s 34 of the
Constitution (
Bernert v ABSA Bank Ltd
2011 (3) SA 92
(CC)
paras 28 and 31).
[27]
The determination of what constitutes ‘exceptional
circumstances’ within the meaning of s 7(2)
(c)
of PAJA,
is necessarily informed by the nature of the complaint for which
judicial relief is sought (
Koyabe
supra para 39). In the
present case the complaint is actual or a reasonable apprehension of
bias, raised directly and promptly
at first instance, ie before the
Committee. The rule against bias is entrenched in the Constitution,
which places a high premium
on the substantive enjoyment of rights
(
Koyabe
supra para 44). Section 38 of the Constitution gives
the appellant the right to approach a competent court if a right in
the Bill
of Rights (s 34) has been infringed or threatened, and
the court may grant appropriate relief. In ruling against the
appellant,
the Committee has set out its position and there is a
proper record of the proceedings before it. If the relevant members
of the
Committee should have recused themselves, the proceedings
before it would be null and void; and any appeal to an appeal
committee
would suffer the same fate. The pursuit of an internal
remedy would therefore be futile.
[28]
These factors, in my view, constitute exceptional circumstances which
render judicial intervention in the
interests of justice, and which
exempt the appellant from the obligation to exhaust the remedy under
s 10(3) of the Act.
[29]
In the result, I make the following order:
1
The appeal is upheld and the order of the court a quo is set aside.
2
The third respondent is ordered to pay the costs of the proceedings
before the court a quo and the costs of appeal, such costs
to include
the costs of two counsel.
3
The case is remitted to the Gauteng Division of the High Court,
Pretoria, to decide the review application.
J B Z Shongwe
Acting
President of the Supreme Court of Appeal
Swain JA:
[30]
I have had the benefit of reading the judgment of my colleague
Shongwe AP and agree with the outcome of the
appeal and the order
granted. I however reach the same conclusion by a route which in
certain important respects differs from that
of my colleague.
[31]
The issues raised by the third respondent before the court a quo,
which are relevant to the determination
of the appeal, were as
follows;
(a)
The appellant was required to exhaust the internal remedy of appeal
under the Health Professions Act 56 of 1974, (the Act) before
approaching the court a quo.
(b)
There were no exceptional circumstances that permitted the appellant
to have recourse to the court a quo, before exhausting
this internal
remedy.
[32]
The preliminary point taken by the third respondent, concerning the
duty to exhaust any internal remedy is
found in the provisions of
ss
7 (2)
(
a
)
and (
c
)
of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) which
provide as follows;
‘
(2)(a)
Subject to paragraph (c), no court or tribunal shall review an
administrative action in terms of this Act unless any internal
remedy
provided for in any other law has first been exhausted.
(c) A court or tribunal
may, in exceptional circumstances and on application by the person
concerned, exempt such person from the
obligation to exhaust any
internal remedy if the court or tribunal deems it in the interest of
justice.’
[33]
The court a quo defined the central issue for determination as
whether the appellant, ‘may appeal the refusal
by the committee
to uphold his application for the recusal of Professors Hugo and
Mhlanga to an ad hoc appeal committee established
in terms of section
10 (2) of the Act?’
[34]
Section
10(3) of the Act makes provision for the
powers of an appeal committee established in terms of s 10 (2), in
the following terms;
‘
(3)
A disciplinary appeal committee referred to in subsection (2) shall
have the power to vary, confirm or set aside a finding of
a
disciplinary committee established in terms of subsection (1) or to
refer the matter back to the disciplinary committee with
such
instructions as it may deem fit.’
[35]
In dealing with the issue as to whether the appeal to the appeal
committee constituted an effective internal remedy
for the purposes
of the PAJA, the court a quo noted that the power given to the appeal
committee to vary, confirm or set aside
a finding, or to refer the
matter back to the professional conduct committee, was a formulation
of the powers of an appellate administrative
body found in many
statutes. The formulation however did not resolve perennial questions
of statutory interpretation, namely whether
the appellate body
enjoyed review powers as well as an appellate jurisdiction.
[36]
In addition, the court a quo noted that the issue was whether the
appellate body entertained appeals in the wide
sense, or whether the
appeal was an ordinary appeal limited to the evidence and the record
upon which the original decision was
rendered. The court a quo
remarked that these matters often occasioned considerable difficulty
where, as here, the legislature
had not expressly stated the scope of
appellate jurisdiction.
[37]
The court a quo however concluded that such interpretational
intricacies could be avoided in the present case.
It reasoned
that even if it was assumed in favour of the appellant that the
committee did not enjoy review powers and no appeal
jurisdiction in
the wide sense, that did not mean that the appeal committee did not
enjoy a jurisdiction to consider an appeal
in respect of the
committee’s decision, to dismiss the appellant’s recusal
application. This was because the
application was made
formally, with the result that the facts and law relied upon in
support of the application, served before
the committee. The
committee was therefore entitled to consider the merits of the
recusal application and conclude that it should
be refused. If
the committee had erred and should have upheld the application for
refusal, then the appeal committee enjoyed
the power to set aside
this finding of the committee.
[38]
According to the court a quo this was not a case in which there were
irregularities that did not appear from
the record. The recusal
application was argued before the committee, considered by it and a
decision rendered on the merits. On
this basis the correctness of the
committee’s finding on the recusal application could be
considered by the appeal committee.
No power of review was
required to do so because the question was not whether the
committee’s finding was lawful, but whether
it was correct. In
addition the appeal committee did not need to decide the recusal
application de novo in order to decide whether
the finding of the
committee was correct. No wider appeal was implicated in order to
determine the merits of the recusal finding.
[39]
The court a quo accordingly decided that the appellant was afforded a
meaningful right of appeal under the
Act, to have the correctness of
the recusal finding considered. The appellant therefore enjoyed an
internal remedy of appeal under
the Act and had a duty to exhaust
this remedy in terms of the PAJA, unless exempted from doing so.
[40]
For reasons which will become apparent, the court a quo erred in
classifying the claim of bias as an issue
which was amenable to an
appellate jurisdiction by the appeal committee. To reduce the enquiry
to whether the decision by the committee
in refusing the application
for recusal was right or wrong, ignores the juridical nature of a
claim of bias as well as the legal
effect upon the proceedings of the
committee, if the claim is upheld.
[41]
The rule against bias is foundational to the fundamental principle of
the Constitution that courts, as well
as tribunals and forums, must
not only be independent and impartial, but must be seen to be so. The
constitutional imperative of
a fair public hearing is negated by the
presence of bias, or a reasonable apprehension of bias, on the part
of a judicial or presiding
officer. The vital importance of
this constitutional principle was described in
Bernert v ABSA Bank
Ltd
2011(3) SA 92 (CC) paras 28 and 31 in the following terms;
‘
It
is, by now, axiomatic that a judicial officer who sits on a case in
which he or she should not be sitting, because seen objectively,
the
judicial officer is either actually biased or there exists a
reasonable apprehension that the judicial officer might be biased,
acts in a manner that is inconsistent with the Constitution…The
apprehension of bias principle reflects the fundamental
principle of
our Constitution that courts must be independent and impartial. And
fundamental to our judicial system is that courts
must not only be
independent and impartial, but they must be seen to be independent
and impartial…
…
And
the requirement of impartiality is also implicit, if not explicit, in
s 34 of the Constitution which guarantees the right to
have disputes
decided "in a fair public hearing before a court or, where
appropriate, another independent and impartial tribunal
or forum…”’
The appellant accordingly
possesses a constitutional right to an independent and impartial
hearing before the committee, whose conduct
assessed objectively
should not exhibit a reasonable apprehension of bias, towards the
appellant.
[42] In
the pre-constitutional era this Court in
Council of Review, South
African Defence Force & others v Mönnig
1992 (3) SA 482
(A) at 491 stated that;
‘
The
recusal right is derived from one of a number of rules of natural
justice designed to ensure that a person accused before a
court of
law should have a fair trial. Generally speaking such rules, which
are part of our common law, must be observed unless
the Legislature
has by competent legislation, either expressly or by clear
implication, otherwise decreed’.
The legal effect upon
proceedings, of a finding of bias on the part of the presiding
officer, was described at page 495 in the following
terms;
‘
What
must be remembered is that in the present case we are concerned with
the proceedings of what is in substance a court of law.
It is a court
which admittedly is composed of laymen, but one which in all other
respects has the characteristics of a court of
law and which enjoys a
wide criminal jurisdiction. And, as I have already observed, the
propriety of its proceedings should be
judged by the normal standards
pertaining to a court of law. If, as I have held, the court martial
should have recused itself,
it means that the trial which it
conducted after the application for recusal had been dismissed should
never have taken place at
all. What occurred was a nullity. It was
not, as in many of the cases quoted to us, an irregularity or series
of irregularities
committed by an otherwise competent tribunal. It
was a tribunal that lacked competence from the start. The
irregularity committed
by proceeding with the trial was fundamental
and irreparable. Accordingly, there was no basis upon which the
council of review
could validate what had gone before.
The
only way the council of review could have cured the proceedings
before the court martial would have been to set them aside
.’
(Emphasis added)
The fundamental right to
a fair and impartial hearing is accordingly guaranteed, because a
denial of the right results in the invalidity
of the hearing and an
order setting aside the proceedings. Consequently, if it is
subsequently found that the first and second
respondents should have
recused themselves, the hearing before the committee will be a
nullity and the proceedings will have to
be set aside.
[43] It
is against this background that the provisions of ss 7(2
)(
a
)
and (
c
)
of the PAJA must be applied. A requirement that
the administrative remedy be available, effective and adequate was
enunciated in
Koyabe & others v Minister for Home Affairs &
others (Lawyers for Human Rights as Amicus Curiae)
2010 (4) SA
(CC) 327 paras 44 and 45 in the following terms;
‘
In
a constitutional democracy like ours, where the substantive enjoyment
of rights has a high premium, it is important that any
existing
administrative remedy be an effective one. A remedy will be effective
if it is objectively implemented, taking into account
the relevant
principles and values of administrative justice present in the
Constitution and our law. An internal remedy must also
be readily
available and it must be possible to pursue without any obstruction,
whether systemic or arising from unwarranted administrative
conduct.
Factors such as these will be taken into
account when a court determines whether exceptional circumstances
exist, making it in the
interests of justice to intervene.
’
Thus, as the
international jurisprudence illustrates
, judicial enforcement of
the duty to exhaust internal remedies, in giving content to the
“exceptional circumstances”
exemption, must consider the
availability, effectiveness and adequacy of the existing internal
remedies
.’ (Emphasis added)
It is therefore apparent
that the enquiry whether an internal remedy is available, effective
and adequate, and the enquiry whether
exceptional circumstances are
present justifying exemption from the duty to exhaust an internal
remedy in the interest of justice,
are not disparate enquiries.
[44] That the
presence of exceptional circumstances may be established by the
absence of an effective and adequate internal
remedy, is illustrated
by the decision of this court in
Nichol & another v Registrar
of Pension Funds & others
2008 (1) SA 383
(SCA) para 18,
where the following was stated;
‘
As
“exceptional circumstances” which might justify an
exemption in terms of s 7 (2)
(
c
)
would exist where the available internal remedy would not be able to
provide the applicant with effective redress for his or her
complaint…’
[45]
The meaning of the term ‘exceptional circumstances’ was
described in
Nichol
para16, as follows;
‘
Counsel
for the registrar and the FSB submitted that, while there is no
definition of “exceptional circumstances” in
PAJA, these
must be circumstances that are out of the ordinary and that render it
inappropriate for the court to require the s
7(2)(c) applicant first
to pursue the available internal remedies. The circumstances must in
other words be such as to require
the immediate intervention of the
courts rather than resort to the applicable internal remedy. I agree
with this contention. In
the words of Sir John Donaldson MR in
R
v Secretary of State for the Home Department, Ex Parte Swati
[1]
:
“
By
definition, exceptional circumstances defy definition, but, where
Parliament provides an appeal procedure, judicial review will
have no
place unless the applicant can distinguish his case from the type of
case for which the appeal procedure was provided.”’
In other words, where an
internal remedy in the form of an appeal procedure does not provide
the applicant with effective and adequate
redress for the complaint,
exceptional circumstances will be present which will justify
exemption from the obligation to exhaust
this internal remedy in the
interest of justice.
[46] The
enquiry is whether the court a quo correctly concluded that the power
of the appeal committee, in terms of
s 10 (3) of the Act ‘to
vary, confirm or aside a finding’ of the committee, provided an
available, effective and adequate
remedy to protect the appellant’s
constitutional right to a fair and impartial hearing, before the
committee. Implicit in
the finding by the court a quo that the
appellant enjoys an effective right of appeal to the appeal
committee, to challenge the
refusal by the first and second
respondents to recuse themselves, is that the appellant must at this
stage submit himself to the
jurisdiction of the committee for the
imposition of a penalty, which may include erasure or suspension from
his medical practice,
before exercising his right of appeal to the
appeal committee.
[47] In
Kayobe
, the Constitutional Court at footnote 41 in dealing
with possible exceptions to the duty to exhaust an internal remedy,
referred
to the decision of Justice Blackmun in
McCarthy v Madigan
[1992] USSC 24
;
503 US 140
(1992) at 144-148, in the following terms;
‘
Justice
Blackmun further recognized exceptions to the exhaustion requirement,
where the interests of the individual in obtaining
judicial
intervention outweigh the institutional interest in exhaustion: (a)
where it may prejudice subsequent court action (for
example, an
unreasonable or indefinite time frame for administrative action); (b)
where there is doubt whether the agency can grant
effective relief;
and (c) where the administrative body is biased or has predetermined
the issue.’
These exceptions may also
be regarded as examples of the absence of an effective and adequate
internal remedy for the particular
complaint.
[48]
With regard to the first exception, Justice Blackmun also said the
following at 147;
‘
Even
where the administrative decision-making schedule is otherwise
reasonable and definite, a particular plaintiff may suffer
irreparable harm if unable to secure immediate judicial consideration
of his claim.’
This is consonant with
what was stated in
Nichol
, namely that the circumstances must
require the immediate intervention of the courts, rather than resort
to the applicable internal
remedy.
[49]
The court a quo dealt with the issue of whether the appellant would
suffer irreparable harm, if the penalty
imposed by the committee was
one of erasure or suspension from his medical practice,
in the
context of whether the appellant had established the presence of
exceptional circumstances. The issue is however of equal
relevance in
determining whether the right of appeal to the appeal committee, is
an effective and adequate internal remedy.
[50]
The date upon which a ‘decision’ by the committee or
appeal committee takes effect, is dealt
with in ss10 (4) and (5) of
the Act;
‘
(4)
A decision of a disciplinary committee, unless appealed against,
shall be of force and effect from the date determined by the
disciplinary committee.
(5)
Where a matter has been considered by a disciplinary appeal committee
the decision of the disciplinary appeal committee, unless
appealed
against, shall be of force and effect from the date determined by the
disciplinary appeal committee.’
The
lodging of an appeal therefore precludes the exercise of a discretion
by the committee or the appeal committee, as the case
may be, to
determine the date when a ‘decision’ will be of force and
effect. This is consistent with the common law
rule that generally
the execution of a judgement is automatically suspended upon the
noting of an appeal
[2]
.
However, in the absence of an appeal, a committee or an appeal
committee is entitled to determine the date from which the ‘decision’
will be of force and effect.
[51]
Section 42 (1A) of the Act however provides that;
‘
(1A)
If an appeal is lodged against a penalty or erasure or suspension
from practice, such penalty shall remain effective until
the appeal
is heard.’
Lodging
an appeal against a penalty therefore has no effect upon the
operation of the penalty which remains effective pending the
outcome
of the appeal.
[52]
A clear distinction is drawn in these sections between the
consequences which follow upon an appeal being
lodged against the
imposition of a penalty, or erasure or suspension from practice
(hereafter referred to as a ‘penalty’),
and an appeal
being lodged against a ‘decision’. If an appeal is lodged
against the decision as well as the penalty
imposed, the operation of
the decision will be suspended, but not the operation of the penalty.
The justification for this distinction
must be to protect the public
from the conduct of the medical practitioner concerned pending the
outcome of any appeal, particularly
where the penalty is one of
erasure or suspension from the Register of Medical Practitioners.
[53]
The court a quo however erroneously concluded that although s 42 (1
A) of the Act provided that a penalty
would remain effective until an
appeal was finalised, this provision did not determine the date from
which the penalty would take
effect. It found that ss 10(4) and (5)
of the Act permitted a committee, or appeal committee, to determine
the date when its ‘decision’,
which included its decision
as to the penalty to be imposed, would be of force and effect. This
interpretation disregards the clear
distinction drawn between a
‘decision’ and a ‘penalty’ in the Act and
renders superfluous the stipulation
in s 42(1A) that the penalty
‘shall remain effective until the appeal is heard.’
[54]
The court a quo therefore erred in deciding that the date when a
penalty would take effect remained within
the discretionary power of
the committee or appeal committee and that any harm the appellant
would suffer would be mitigated if
he was able to persuade the
committee or the appeal committee, as the case may be, that the
penalty should not commence until his
appeals or review were
determined. In addition, I disagree with the view of the court a quo
that a ‘formidable hurdle’
to finding that exceptional
circumstances were present, was that the statutory scheme under the
Act, strikes a balance between
rights of appeal and the need to
protect the public from a medical practitioner found guilty of
serious misconduct. The court a
quo noted that although this might
work harshly upon a professional person who may suffer a penalty
destructive of his professional
life, and yet be vindicated on
appeal, that was what the legislature had determined and no
constitutional challenge to this regime
had been brought.
[55]
This reasoning however loses sight of the real issue, which is
whether the appellant
may suffer irreparable harm
if he is unable to secure immediate judicial consideration of his
claim of bias, on the part of the
committee. That the legislature may
have intended in the normal course of events, harsh consequences for
a professional person
pending the outcome of an appeal, cannot
justify denial of the immediate consideration of the appellant's
claim of bias.
[56]
I agree with the submission made on behalf of the appellant, that in
addition, any decision to impose a penalty
of erasure or suspension
will be taken by persons who it might subsequently be determined,
should have recused themselves. The
appellant will therefore suffer
the exercise of drastic powers by persons, whose decisions may
ultimately be found to be a nullity,
after a
hearing
that should never have taken place. For these reasons,
the
immediate judicial consideration of the appellant’s claim for
review would be justified. The right of appeal to the appeal
committee does not constitute an adequate and effective internal
remedy in this regard.
[57]
The second exception to the duty to exhaust an internal remedy
referred to in
Koyabe
, is where there is doubt whether the
administrative agency can grant effective relief. In this regard
Justice Blackmun added the
following at 147-148;
‘
For
example, an agency, as a preliminary matter, may be unable to
consider whether to grant relief because it lacks institutional
competence to resolve the particular type of issue presented, such as
the constitutionality of a statute… Alternatively,
an agency
may be competent to adjudicate the issue presented, but still lack
authority to grant the type of relief requested.’
Although couched in the
context of an exception to the duty to exhaust an internal remedy, a
lack of authority on the part of the
administrative agency to grant
the type of relief requested, would also constitute evidence of the
absence of an effective and
adequate internal remedy.
[58]
The power the appeal committee possesses in terms of s 10 (3) of the
Act to, ‘vary, confirm or set
aside a finding of a professional
conduct committee… or to refer the matter back to the
professional conduct committee with
such instructions as it may deem
fit,’ would entitle it to set aside the ‘finding’
by the committee that its
members were not obliged to recuse
themselves from the hearing. However, this would not include the
power to set aside the proceedings
before the committee, because the
power of the appeal committee is restricted to the variation,
confirmation or setting aside of
a ‘finding’ of the
committee.
[59] In
Mönnig
it was made clear that the irregularity in the
proceedings, being the failure of the court martial to recuse itself,
could only
be cured by setting the proceedings aside. This is
necessary because a finding of bias permeates and invalidates every
aspect of
the proceedings and not simply their outcome. I therefore
disagree with the submission of counsel for the third respondent that
if the appeal committee upheld the claim of bias, it could legitimize
the proceedings simply by setting aside the finding of guilt.
[60]
There is a further basis upon which the appeal committee would be
unable to grant the necessary relief. The
decision taken by the
committee as to the guilt of the appellant constitutes administrative
action within the meaning of s 33 of
the Constitution, read with item
23 (2)(
b
) of Schedule 6 to the Constitution, in accordance
with the decision in
SA Veterinary Council & another v
Veterinary Defence Force Association
2003 (4) SA 546
(SCA) para
34. In terms of the decision in
Oudekraal Estates (Pty) Ltd v City
of Cape Town & others
2004 (6) SA 222
para 26, until this
decision of the committee ‘is set aside by a court in
proceedings for judicial review it exists in fact
and it has legal
consequences that cannot simply be overlooked.’ Even if it is
assumed that the appeal committee possesses
a review jurisdiction to
vary, confirm or set aside the committee's finding of guilt, this
would not include the power to set aside
the proceedings.
[61]
The appellant is therefore able to distinguish his case from the type
of case for which the appeal procedure
was provided. This procedure
does not provide the appellant with effective redress for his
complaint. Put differently, the appeal
committee is not competent to
adjudicate the issue of bias because it lacks the necessary authority
to grant the type of relief
requested, namely setting aside the
proceedings on the ground that they are a nullity.
[62]
The third exception from the duty to exhaust internal remedies
referred to in
Koyabe
, is bias on the part of the
administrative body. The vital importance of an absence of bias in
determining whether an internal
remedy is effective, was referred to
in
Koyabe
para 44, as follows;
‘
A
remedy will be effective
if it is
objectively implemented
, taking into
account the relevant principles and values of administrative justice
present in the Constitution and our law.’
(Emphasis added)
In the present case the
allegation of bias, or the reasonable apprehension of bias, lies
against the members of the committee and
not the appeal committee,
for it is the members of the committee who must still impose an
appropriate penalty.
[63]
To summarize, the internal remedy of an appeal to the appeal
committee does not provide an available, effective
and adequate
remedy to protect the appellant’s constitutional right to a
fair and impartial hearing before the committee,
on the following
grounds. T
he appellant
may suffer
irreparable harm if he is unable to secure immediate judicial
consideration of his claim of bias on the part of the committee.
In
addition, the appeal committee is not competent to adjudicate the
issue of bias because it lacks the necessary authority to
grant the
type of relief requested, namely setting aside the proceedings on the
ground that they are a nullity. Finally, the internal
remedy cannot
be effective or adequate if it will not be objectively implemented
without bias, or the reasonable apprehension of
bias.
[64]
Because these grounds also justify a finding that the appellant
should be exempted from the obligation to exhaust
the internal remedy
of an appeal because of the presence of exceptional circumstances,
it
becomes unnecessary to consider the reasons why the court a quo
concluded that no exceptional circumstances were present.
[65]
The allegation of bias, or the reasonable apprehension of bias by the
appellant on the part of the committee,
has to be assessed in
accordance with the appropriate standard of proof to be applied by a
court in deciding whether to grant,
or refuse leave to apply for
judicial review. This was described in
R v Secretary of State for
the Home Department, ex parte Swati
[1986] 1 All ER 717
at 723,
by Sir John Donaldson MR in the following terms;
‘
Even
if the matter had stopped there, I would have been minded to refuse
leave to apply on the grounds that an applicant must show
more than
that it is not impossible that grounds for judicial review exist. To
say that he must show a prima facie case that such
grounds do in fact
exist may be putting it too high, but he must at least show that it
is a real, as opposed to a theoretical,
possibility. In other words,
he must have an arguable case.’
[66] In
my view, the appellant has demonstrated an arguable case for leave to
be granted to apply for judicial
review, to consider the committee’s
decision to refuse the appellant’s application for recusal.
K G B Swain
Judge of Appeal
APPEARANCES
For
Appellant:
J G
Cilliers SC (with him M M W Van Zyl SC and
W W
Coetzee)
Instructed
by:
Geyser
& Coetzee Attorneys, Centurion
Hill
McHardy & Herbst Incorporated, Bloemfontein
For
Respondent:
S
Joubert SC (with him L Kutumela)
Instructed
by:
Gildenhuys
Malatji Incorporated, Pretoria
Honey
& Partners, Bloemfontein
[1]
[1986]
1 All ER 717
(CA) at 724
a-b.
[2]
Reid
& another v Godart & another
1938
AD 511
at 513.