Ford v Allied Health Professions Council of South Africa and Others (32848/2017) [2017] ZAGPPHC 321 (15 June 2017)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case Number: 32848 / 2017

Date: 32848/2017

In the matter between:

DR ALBERT JAMES FORD

APPLICANT

And

THE ALLIED HEALTH PROFESSIONS COUNCIL 1st RESPONDENT

OF SOUTH AFRICA

DR CHRISTOPHER YELVERTON N.O. 2nd RESPONDENT

THE PROFESSIONAL BOARD FOR HOMEOPATHY, NATUROPATHY

AND PHYTOTHERAPY 3rd RESPONDENT

THE MINISTER OF HEALTH 4th RESPONDENT

JUDGMENT

Fabricius J,

1.

In this urgent application , the Applicant seeks, in terms of Part A of the Notice of Motion and pending Part B, the following relief:

2.1 "the decision that the first respondent took on 16 February 20 17, and communicated to the applicant on 21 February 20 17, in terms of section 24

( 1) (c) of the Allied Health Professions Act, 63 of 1982, to remove the applicant' s name from the

register for Homeopathy, Naturopathy and Pthytotherapy, or such other register as may apply, be suspended and be declared to be of no force and effect, in the interim;

2.2 the applicant be declared to be entitled to conduct the practice of homeopathy without restriction and in the ordinary course of business, subject to compliance by the applicant with the laws

of the Republic of South Africa, in the interim; and

2.3 The second respondent be ordered to forthwith restore the applicant's name to the register for Homeopathy, Naturopathy and Phytotherapy,

or such other register as may apply, in the interim".

The question of urgency is in issue, the fact that the Applicant has not exhausted the internal remedies provided for by the provisions s. 38 (B) of the Allied Health Professions Act 63 of 1982 as amended, as well as the question whether or not Applicant has made out a case for interim relief in any event.

2.

Urgency:

Applicant was charged with unprofessional conduct in that during the period November 2007 to April 2011, he had prescribed and/ or dispensed corticosteroids to a patient in contravention of Regulation 28 of the Regulations published under Government Notice R127 of 12 February 2011. He pleaded guilty to this count and was found guilty of unprofessional conduct. The penalty imposed was that his name be removed from the Register of Practitioners entitled to practice in terms of the said Act.

Applicant said in the Founding Affidavit that a different penalty ought to have been imposed and that the removal of his name from the Register causes him prejudice that may become permanent and irremediable. The effect of the First Respondent's conduct is that he is unable to conduct his profession and to meet his financial needs and obligations. No facts are given in that regard. The relevant decision of

First Respondent was taken on 16 February 2011. The application was filed with the Registrar of this Court on 11 May 2017.

The question of urgency is to some extent inter-related to the second point in limine raised by the First Respondent, namely Applicant' s failure to exhaust internal remedies as required by the provisions of s. 7 (2) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). In the Founding Affidavit, Applicant states that he relies on this Act and says that the decision constituted administrative action as defined. For the grounds of review, he relied on various subsections of s. 6 ( 2) of PAJA.

3.

Section 38 (B) of the Allied Health Professions Act as amended, provides for an appeal to an Appeal Committee within a period of three months of the imposition of a penalty.

The Appeal Committee is appointed by the Minister of Health and according to s. 38 (B) ( 3) , the Appellant may appear in person or through a legal representative before such Committee or submit written statements or arguments in support of his appeal. The Appeal Committee may confirm or set aside the particular penalty and give such judgment as in its opinion ought to have been given by the Council or Committee. According to the provisions of s. 38 (B) ( 6), the commencement of a penalty against which an appeal is lodged, shall be suspended by the lodging of an appeal until the appeal is disposed of. No specific procedure in connection with the lodging of the appeal is contained under s. 38 (B), but s. 38 (B) (4) says that "the procedure in connection with the noting and prosecuting of an

appeal in terms of this section, shall be as prescribed".

4.

Applicant states that he was preparing his appeal until he realized that the remedywas not available to him. He states that he asked for details about the particular procedure to be followed, but that his request was ignored by the First Respondent.

He then prepared the present application.

5.

The provisions of PAJA in this context, are clear and are also fully discussed in Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and Others 2014 (5) SA 138 (CC). There is no application before me that Applicant be exempted from the relevant provisions of s. 7 of PAJA. It is common cause that no appeal was lodged in terms of s. 38 (B), ostensibly on the basis that the particular procedure had not been prescribed. It is my view that nothing in that section prohibited the Appellant from lodging his appeal with the First Respondent. An Appeal Committee would have heard the appeal and would, no doubt, have regulated its own procedure apart from what s. 38 (B) already provides.

6 .

The provisions of s. 7 (2) (a), are clear to the effect that no Court shall review an administrative action in terms of PAJA unless any internal remedy provided for in any other law has first been exhausted.

This internal remedy has not been exhausted and accordingly the provisions of s. 7 (2) (b) apply. As I have said, there is no application or exemption before me and in any event, I am unable to say on these papers that exceptional circumstances exist, as envisaged by the provisions of s. 7 (2) (c) of PAJA.

7.

There is a good and sound reason for the requirement that internal appeals must be exhausted. These are discussed fully, as well in Nicholl and Another v Registrar of Pension Fund and Others 2008 (1) SA 383 (SCA). Where a professional person in hearing charges of misconduct arrives at a decision as to the appropriate penatly, it

is more so of importance that the particular professional person or body utilizes its own mechanisms to pass judgment as it were on the appropriateness or otherwise of the particular penalty imposed. It is in any event also clear that the Court will not readily interfere with the opinion of a professional body, unless it can be said that such body did not exercise its discretion at a, or otherwise committed a material misdirection.

See: Thuketana v Health Professions Council of South Africa 2003 (2) SA 628 (T) at par. 26.5.

The same reasoning appears also from De Beer v Health Professions Council of South Africa 2005 (1) SA 332 (T) at 343 par. [36].

8.

I am at this stage also not convinced that Applicant has established a prima facie right in the context of the requirements for interim relief. I do however not intend dealing with the requirements for such relief at present. The Applicant has not complied with the provisions of s. 7 of PAJA and the present relief can therefore not be granted. Inasmuch as it may be necessary in the light of the history of this matter, the three month period referred to in s. 38 (B) (c) is extended to accommodate the order in par. 3 below.

9 .

The following order is therefore made: ·

1. The application is dismissed with costs;

2. The Applicant is ordered to exhaust the appeal remedy provided for by s. 38 (B) of the Act before it proceeds with a review of the disciplinary proceedings in this Court.

3. The appeal to the First Respondent shall be lodged within seven days of this order.

__________________________

JUDGE H.J FABRICIUS

JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA

Case number: 24932/17

Counsel for the Applicant:

Adv C. P. Wesley

Instructed by: Hills Inc.

Counsel for the 151 Respondent:

Adv G. M. Young

Instructed by: Van Gaalen Attorneys

Date of Hearing:

14 June 2017

Date of Judgment:

15 June 2017 at 10:00