Basson v Hugo and Others (968/16) [2018] ZASCA 1; [2018] 1 All SA 621 (SCA); 2018 (3) SA 46 (SCA) (17 January 2018)

Basson v Hugo and Others (968/16) [2018] ZASCA 1; [2018] 1 All SA 621 (SCA); 2018 (3) SA 46 (SCA) (17 January 2018)

The Supreme Court of Appeal held that the appellant was not obliged to exhaust the internal remedy of appeal to the ad hoc appeal committee before seeking judicial review. The court found that the internal remedy was ineffective and inadequate in the circumstances, as the allegation of bias against committee members, if established, would render the proceedings a nullity. The appeal committee lacked the authority to set aside the proceedings as a whole, and the appellant would suffer irreparable harm if required to submit to a penalty imposed by potentially biased decision-makers. Exceptional circumstances existed, justifying immediate judicial intervention and exemption from the duty to...

Citation
[2018] ZASCA 1
Parties
Appellant: Dr Wouter Basson; Respondent: Prof J F M Hugo; Respondent: Prof R E Mhlanga; Respondent: Health Professions Council of South Africa
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
17 January 2018
Case Number
968/16
Procedural Posture
Civil Appeal / Appeal From Gauteng Division, Pretoria
Outcome
Appeal upheld; order of the court a quo set aside; matter remitted for review application.
Judges
Shongwe, Seriti, Swain, Mokgohloa, Schippers
Legal Topics
Promotion of Administrative Justice Act, Exhaustion of Internal Remedies, Recusal for Bias, Fair Hearing, Disciplinary Proceedings
Administrative Law Civil Procedure Promotion of Administrative Justice Act Exhaustion of Internal Remedies Recusal for Bias Fair Hearing Disciplinary Proceedings

Case Brief

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Parties

Dr Wouter Basson

Appellant

Prof J F M Hugo

Respondent

Prof R E Mhlanga

Respondent

Health Professions Council of South Africa

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division, Pretoria

Legal Issues

  1. 1 Was the appellant obliged to exhaust internal remedies under s 7(2) of PAJA before seeking judicial review?
  2. 2 Do exceptional circumstances exist to exempt the appellant from exhausting internal remedies?
  3. 3 Is an appeal to the ad hoc appeal committee an effective and adequate remedy for allegations of bias?

Ratio Decidendi

The Supreme Court of Appeal held that the appellant was not obliged to exhaust the internal remedy of appeal to the ad hoc appeal committee before seeking judicial review. The court found that the internal remedy was ineffective and inadequate in the circumstances, as the allegation of bias against committee members, if established, would render the proceedings a nullity. The appeal committee lacked the authority to set aside the proceedings as a whole, and the appellant would suffer irreparable harm if required to submit to a penalty imposed by potentially biased decision-makers. Exceptional circumstances existed, justifying immediate judicial intervention and exemption from the duty to...

Court Disposition

Appeal upheld; order of the court a quo set aside; matter remitted for review application.

Orders

  • The appeal is upheld and the order of the court a quo is set aside.
  • The third respondent is ordered to pay the costs of the proceedings before the court a quo and the costs of appeal, including the costs of two counsel.