Garib v Health Professions Council of South Africa and Others (A2007/02) [2006] ZAGPHC 27 (30 March 2006)

/SGIN THE HIGH COURT OFSOUTH AFRICA(TRANSVAALPROVINCIAL DIVISION)DATE:30/3/2006CASE NO:A2007/2002REPORTABLEIn the matter between:DR S H GARIB

APPELLANT/APPLICANTAndTHE HEALTH PROFESSIONSCOUNCIL OFSOUTH AFRICA1STRESPONDENTPROF T J MARIBA N.O.(In his capacity as President of the HealthProfessions Council ofSouth Africa)

2NDREPONDENTTHE MEDICAL AND DENTALPROFESSIONS BOARD

3RDRESPONDENTPROF L H BECKER N.O.(In his capacity as Chairman of the Medicaland Dental Professions Board)

4THRESPONDENTTHE PROFESSIONAL CONDUCTCOMMITTEE

5THRESPONDENTDR P J BARNARD N.O.(In his capacity as Chairman of theProfessional Conduct Committee)

6THRESPONDENTMR M E MATHIBE N.O.(In his capacity as Pro FormaComplainant)

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 VOS, J1. This is an appeal under section 20 of the Health Professions Act56 of 1974 (as amended)(“the Act”), combined with an application for review of certain decisions of the Medical and Dental Professions Board.2. The applicant was charged with professional misconduct. Itwas alleged that he had engaged in sexual intercourse with a patient on four occasions in October and November 1999. He was found guilty and a penalty of six months suspension from the register of health professionals, was ultimately imposed. In the application for a review as well as in the heads of argument filed on behalf of the applicant a number of legal argumentswere raised,alldirected at the setting aside of the decision of the board. During argument, however, Mr Duminy,who appeared on behalf of the applicant,chose not to pursue those arguments,although he did not abandon them. Instead he suggestedthat the crux of the matter lies in the merits of the appeal itself. I am of the view that Mr Duminywas correct in his approach not to pursue thelegal arguments in regards the review. To my mind thereisno merit in any of the submissions made on behalf of the applicant in the heads of argument or in the papers before me insofar as the review is concerned. I am also of the view that the crux of the matter lies in the merits of the appeal itself and dofind it necessaryto deal with the legal arguments raised.3. MrDuminysubmitted that he appeal contemplated by section 20 of the act is an ordinary appeal. For this part of the case the court need not be satisfied that there was any irregularity and it is sufficient that the court would not have come to the same decision as the boardon the material before it. I agree with this submission. MrDuminythen proceeded to attack the findings of the committee and therefore the board on the following bases:(1) Firstly the committee expressly found that sexual intercourse had been proven on 28 October 1999, however, concerning the events of 28 October 1999 it found the following earlier in its recommendation:“When confronted with the particulars contained in telephone statements which showed that she (ie the complainant) on 25 and 28 October could not have been at your residence at the time she alleged shecould not satisfactory explainthe differences between her evidence and the information contained in itemised telephone statements.”It was therefore submitted that in the light of this finding concerning the 25thand 28ththe complainant could not have been at the applicant’s residencewhere the sexualencountersallegedly took place at the relevant time the finding is therefore incomprehensible and not supported by the evidence that there was sexual intercourse between the applicant and the complainant on 28 October of that year. Furthermore during argument MrDuminyalso pointed out thatalso as far as 20 October is concerned the telephone records show that the complainant could not have been at the applicant’s residence between 12:30 and 13:00 as is suggested by the evidence. It was therefore argued that the court should find that,in view of the evidence about the telephone conversations,the complainant was not at the applicant’s house between 12:30 and 13:00 on 20, 25 and 28 October. That only leaves 4 November’s incident. Based on the fact that complainant was a single witness it was argued that her evidence as far as 4 November is concerned was not corroborated in any way and therefore not acceptable. This together with the fact that she lied about the telephone calls and specifically aboutthe phone calls after shelaid the charge against the applicant that this court should not uphold the conviction.”4.It seems to me that this argument fails to take into account the evidence as a whole and especially the probabilities in this particular case. To my mind the following probabilities established the existence of a sexual relationship.(1)The evidence that the applicant proposed herbal oil treatment and thatthe complainant’s husbandknew of the appointment. It is highly improbable that the complainant would fabricate the liein this regard on/or before 20 October in order to lay a basis for a later false admission of sexual involvement with the applicant.(2) As far as the indicated telephone calls are concerned there was no direct evidence that the complainant arrived at the house at exactly 12:30 or left at exactly 13:00. These are merely inferences drawn by the counsel for the applicant from the evidence presented. I do not think that this is the only inference that can be draw from the facts before the court. I do not find that the telephone documentary evidence insofar as the telephone conversations are concerned in relation to 20 and 28 October necessarily excludesa visit to the applicant’s house.(3)Clearly something outof the ordinary occurred on 20 October. Whyelse would applicant phone the complainantseven times and she him four times. No casual friendship existed at the time on any version and in any event the frequency of the telephonic contact cannot be explained on the basis of a casual friendship between a doctor and his patient. The applicant’s explanation in this regard is highly improbable.(4) The complainant visited the applicant’s home at least onthree occasions in this relevant period. This was admitted by the applicant. Furthermore the version that the applicant hid the complainant from his father on one of those occasions was not contested in cross-examination and such conduct cannot be explained on the basis of an innocent visit. On the probabilities he did so because the visit was not of an innocent nature. The applicant’s denial tothe complainant’s husbandwhen confronted over the phone about his relationship with the complainant, and his statementthathe only knew the complainant for medical reasons was not consolablewith the telephone conversations and wasirreconcilable with the applicant’s claims of innocence.(5) If it was indeed an innocent relationship in which the complainant had become dependent on the applicant he would have conveyed that to her husband. His failure to do so makes his claim in this regard improbable.(6) The very next day the applicant admitted to Dr Sunpath to a serious relationship with the complainant. His later explanation of the admission is really unconvincing to say the least. He had been accused of a sexual relationship the night before by the complainant’s husband. He must have understood what his colleague was enquiring about. If the allegations were falsehe would no doubt have conveyed this to Dr Sunpath in no uncertain terms. Instead he admits to a serious relationship and when questioned about the seriousness he refers to the fact that they have been together at his place. It is highly improbable that the applicant would have reacted in this way in the absence of a sexual relationship.(7)The applicant is thereafter blatantly accusedof a sexual relationship at thePhoenixmeeting. The situation called for a denial yet he remained silent. To my mind his silence under the circumstances amounted to an admission that he had sexual intercourse with the complainant. His statement on being invited to take the complainant away that he did not “want this to go so far” is irreconcilable with an innocent explanation. His denial in evidence of the existence of a sexual relationship is therefore improbable in the light of what was said before and should be rejected.5. I am therefore of the view thatthe evidence clearly establishes the findings referred to or the findings by the board namely that the applicant had sexual intercourse with the complainant on at least three occasions. The board therefore correctly found the applicant guilty of unprofessional conduct as recorded.6. The appeal against the sentence cannot succeed. It is trite law that this court will only interfere with a sentence on appeal if it can be shown that the board misdirected itself in any way or if the sentence induces asense of shock. Neither one of these two elements are present in this matter. MrDuminyargued that the sentence should be suspended. Hecould, however, not refer to any misdirection or could not make the allegation that the sentence induced a sense of shock. Under those circumstances this court cannot interfere even though itmay feel that the sentence is harsh.7. In any eventas far as I am concerned unprofessional conduct of a sexual nature towards a patient is serious in nature. The vulnerability of a patient involved is always an aggravating factor. In the circumstances I am of the view that the appeal against the sentence cannot be upheld.8. In view of the above I am of the view that the appeal should be dismissed with costs. The costs to include the cost of two counsel.A DE VOSJUDGE OF THE HIGH COURTI agreeA P LEDWABAJUDGE OF THE HIGH COURTI make such an orderA2007/2002HEARD ON:28/02/2006FOR THE APPLICANT: ADVWRE DUMINY SCINSTRUCTED BY: MACROBERT INC,PRETORIAFOR THE RESPONDENTS: ADVHB SMALBERG SC &MM MOJAPELOINSTRUCTED BY: MESSRSGELDENHUYS LESSING MALATJIINC,PRETORIADATE OF JUDGMENT:30/03/2006

/SG

IN THE HIGH COURT OFSOUTH AFRICA(TRANSVAALPROVINCIAL DIVISION)DATE:30/3/2006

IN THE HIGH COURT OF

SOUTH AFRICA

(

TRANSVAAL

PROVINCIAL DIVISION)

DATE:

30/3/2006

CASE NO:A2007/2002

CASE NO:

A2007/2002

REPORTABLEIn the matter between:

REPORTABLE

In the matter between:

DR S H GARIB

APPELLANT/APPLICANT

And

THE HEALTH PROFESSIONSCOUNCIL OF

1

ST

RESPONDENT

PROF T J MARIBA N.O.

(In his capacity as President of the HealthProfessions Council of

South Africa

)

2

ND

REPONDENTTHE MEDICAL AND DENTALPROFESSIONS BOARD

3

RD

RESPONDENTPROF L H BECKER N.O.(In his capacity as Chairman of the Medicaland Dental Professions Board)

4

TH

RESPONDENTTHE PROFESSIONAL CONDUCTCOMMITTEE

5

RESPONDENTDR P J BARNARD N.O.(In his capacity as Chairman of theProfessional Conduct Committee)

6

RESPONDENTMR M E MATHIBE N.O.(In his capacity as Pro FormaComplainant)

7

010009000003bb00000006001c00000000000400000003010800050000000b0200000000050000000c022300c006040000002e0118001c000000fb021000070000000000bc02000000000102022253797374656d0000c0060000c09c0000d43a120026e28239f07063030c020000040000002d01000004000000020101001c000000fb02ceff0000000000009001000000000440001254696d6573204e657720526f6d616e0000000000000000000000000000000000040000002d010100050000000902000000020d000000320a2d0000000100040000000000c0062200205c1600030000001e0007000000fc020000ff00ff000000040000002d01020008000000fa02050000000000ffffff00040000002d0103000e00000024030500ffffffffffff2100c1062100c106ffffffffffff08000000fa0200000000000000000000040000002d01040007000000fc020000ffffff000000040000002d010500040000002701ffff040000002d010000030000000000

JUDGMENT

DE VOS, J

1. This is an appeal under section 20 of the Health Professions Act56 of 1974 (as amended)(“the Act”), combined with an application for review of certain decisions of the Medical and Dental Professions Board.2. The applicant was charged with professional misconduct. Itwas alleged that he had engaged in sexual intercourse with a patient on four occasions in October and November 1999. He was found guilty and a penalty of six months suspension from the register of health professionals, was ultimately imposed. In the application for a review as well as in the heads of argument filed on behalf of the applicant a number of legal argumentswere raised,alldirected at the setting aside of the decision of the board. During argument, however, Mr Duminy,who appeared on behalf of the applicant,chose not to pursue those arguments,although he did not abandon them. Instead he suggestedthat the crux of the matter lies in the merits of the appeal itself. I am of the view that Mr Duminywas correct in his approach not to pursue thelegal arguments in regards the review. To my mind thereisno merit in any of the submissions made on behalf of the applicant in the heads of argument or in the papers before me insofar as the review is concerned. I am also of the view that the crux of the matter lies in the merits of the appeal itself and dofind it necessaryto deal with the legal arguments raised.3. MrDuminysubmitted that he appeal contemplated by section 20 of the act is an ordinary appeal. For this part of the case the court need not be satisfied that there was any irregularity and it is sufficient that the court would not have come to the same decision as the boardon the material before it. I agree with this submission. MrDuminythen proceeded to attack the findings of the committee and therefore the board on the following bases:

1. This is an appeal under section 20 of the Health Professions Act

56 of 1974 (as amended)

(“the Act”), combined with an application for review of certain decisions of the Medical and Dental Professions Board.2. The applicant was charged with professional misconduct. It

was alleged that he had e

ngaged in sexual intercourse with a patient on four occasions in October and November 1999. He was found guilty and a penalty of six months suspension from the register of health professionals, was ultimately imposed. In the application for a review as well as in the heads of argument filed on behalf of the applicant a number of legal argument

s

were raised

,

all

directed at the setting aside of the decision of the board. During a

rgument, however, Mr Du

min

y,

who appeared on behalf of the applicant

chose not to pursue those arguments

although he did not abandon them. Instead he suggested

that the crux of the matter lies in the merits of the appeal itself. I am of the view that Mr D

u

y

was correct in his approach not to pursue the

legal arguments in regards the review. To my mind there

is

no merit in any of the submissions made on behalf of the applicant in the heads of argument or in the papers before me insofar as the review is concerned. I am also of the view that the crux of the matter lies in the merits of the appeal itself and do

find it necessary

to deal with the legal arguments raised

.

3. Mr

Dumin

submitted that he appeal contemplated by section 20 of the act is an ordinary appeal. For this part of the case the court need not be satisfied that there was any irregularity and it is sufficient that the court would not have come to the same decision as the board

on the material before it. I agree with this submission. Mr

Duminy

then proceeded to attack the findings of the committee and therefore the board on the following bases:

(1) Firstly the committee expressly found that sexual intercourse had been proven on 28 October 1999, however, concerning the events of 28 October 1999 it found the following earlier in its recommendation:

(1) Firstly the committee expressly found that sexual intercourse had been proven on 28 October 199

9

, however, concerning the events of 28 October 1999 it found the following earlier in its recommendation:

“When confronted with the particulars contained in telephone statements which showed that she (ie the complainant) on 25 and 28 October could not have been at your residence at the time she alleged shecould not satisfactory explainthe differences between her evidence and the information contained in itemised telephone statements.”

“When confronted with the particulars contained in telephone statements which showed that she (ie the complainant) on 25 and 28 October could not have been at your residence at the time she alleged she

could not satisfactory explain

the differences between her evidence and the information contained in itemised telephone statements.

”

It was therefore submitted that in the light of this finding concerning the 25thand 28ththe complainant could not have been at the applicant’s residencewhere the sexualencountersallegedly took place at the relevant time the finding is therefore incomprehensible and not supported by the evidence that there was sexual intercourse between the applicant and the complainant on 28 October of that year. Furthermore during argument MrDuminyalso pointed out thatalso as far as 20 October is concerned the telephone records show that the complainant could not have been at the applicant’s residence between 12:30 and 13:00 as is suggested by the evidence. It was therefore argued that the court should find that,in view of the evidence about the telephone conversations,the complainant was not at the applicant’s house between 12:30 and 13:00 on 20, 25 and 28 October. That only leaves 4 November’s incident. Based on the fact that complainant was a single witness it was argued that her evidence as far as 4 November is concerned was not corroborated in any way and therefore not acceptable. This together with the fact that she lied about the telephone calls and specifically aboutthe phone calls after shelaid the charge against the applicant that this court should not uphold the conviction.”

It was therefore submitted that in the light of this finding concerning the 25

th

and 28

the complainant could not have been at the applicant’s residence

where the sexual

encounters

allegedly took place at the relevant time the finding is therefore incomprehensible and not supported by the evidence that there was sexual intercourse between the applicant and the complainant on 28 October of that year. Furthermore during argument Mr

also pointed out that

also as far as 20 October is concerned the telephone records show that the complainant could not have been at the applicant’s residence between 12:30 and 13:00 as is suggested by the evidence. It was therefore argued that the court should find that

in view of the evidence about the telephone conversations

the complainant was not at the applicant’s house between 12:30 and 13:00 on 20, 25 and 28 October. That only leaves 4 November’s incident. Based on the fact that complainant was a single witness it was argued that her evidence as far as 4 November is concerned was not corroborated in any way and therefore not acceptable. This together with the fact that she lied about the telephone calls and specifically about

t

he phone calls after she

laid the charge against the applicant that this court should not uphold the conviction.”

4.It seems to me that this argument fails to take into account the evidence as a whole and especially the probabilities in this particular case. To my mind the following probabilities established the existence of a sexual relationship.

4.

It seems to me that this argument fails to take into account the evidence as a whole and especially the probabilities in this particular case. To my mind the following probabilities established the existence of a sexual relationship.

(1)The evidence that the applicant proposed herbal oil treatment and thatthe complainant’s husbandknew of the appointment. It is highly improbable that the complainant would fabricate the liein this regard on/or before 20 October in order to lay a basis for a later false admission of sexual involvement with the applicant.(2) As far as the indicated telephone calls are concerned there was no direct evidence that the complainant arrived at the house at exactly 12:30 or left at exactly 13:00. These are merely inferences drawn by the counsel for the applicant from the evidence presented. I do not think that this is the only inference that can be draw from the facts before the court. I do not find that the telephone documentary evidence insofar as the telephone conversations are concerned in relation to 20 and 28 October necessarily excludesa visit to the applicant’s house.

(1)

The evidence that the applicant proposed herbal oil treatment and that

the complainant’s husband

knew of the appointment

. I

t is highly improbable that the complainant would fabricate the lie

in this regard on/or before 20 October in order to lay a basis for a later false admission of sexual involvement with the applicant.

(2) As far as the indicated telephone calls are concerned there was no direct evidence that the complainant arrived at the house at exactly 12:30 or left at exactly 13:00. These are merely inferences drawn by the counsel for the applicant from the evidence presented. I do not think that this is the only inference that can be draw from the facts before the court. I do not find that the telephone documentary evidence insofar as the telephone conversations are concerned in relation to 20 and 28 October necessarily excludes

a visit to the applicant’s house

(3)Clearly something outof the ordinary occurred on 20 October. Whyelse would applicant phone the complainantseven times and she him four times. No casual friendship existed at the time on any version and in any event the frequency of the telephonic contact cannot be explained on the basis of a casual friendship between a doctor and his patient. The applicant’s explanation in this regard is highly improbable.(4) The complainant visited the applicant’s home at least onthree occasions in this relevant period. This was admitted by the applicant. Furthermore the version that the applicant hid the complainant from his father on one of those occasions was not contested in cross-examination and such conduct cannot be explained on the basis of an innocent visit. On the probabilities he did so because the visit was not of an innocent nature. The applicant’s denial tothe complainant’s husbandwhen confronted over the phone about his relationship with the complainant, and his statementthathe only knew the complainant for medical reasons was not consolablewith the telephone conversations and wasirreconcilable with the applicant’s claims of innocence.(5) If it was indeed an innocent relationship in which the complainant had become dependent on the applicant he would have conveyed that to her husband. His failure to do so makes his claim in this regard improbable.(6) The very next day the applicant admitted to Dr Sunpath to a serious relationship with the complainant. His later explanation of the admission is really unconvincing to say the least. He had been accused of a sexual relationship the night before by the complainant’s husband. He must have understood what his colleague was enquiring about. If the allegations were falsehe would no doubt have conveyed this to Dr Sunpath in no uncertain terms. Instead he admits to a serious relationship and when questioned about the seriousness he refers to the fact that they have been together at his place. It is highly improbable that the applicant would have reacted in this way in the absence of a sexual relationship.(7)The applicant is thereafter blatantly accusedof a sexual relationship at thePhoenixmeeting. The situation called for a denial yet he remained silent. To my mind his silence under the circumstances amounted to an admission that he had sexual intercourse with the complainant. His statement on being invited to take the complainant away that he did not “want this to go so far” is irreconcilable with an innocent explanation. His denial in evidence of the existence of a sexual relationship is therefore improbable in the light of what was said before and should be rejected.

(3)

Clearly something out

of the ordinary occurred on 20 O

ctober. W

hy

else would applicant phone the complainant

seven times and she him four times. No casual friendship existed at the time on any version and in any event the frequency of the telephonic contact cannot be explained on the basis of a casual friendship between a doctor and his patient. The applicant’s explanation in this regard is highly improbable.(4) The complainant visited the applicant’s home at least on

ree occasions in this relevant period. This was admitted by the applicant. Furthermore the version that the applicant hid the complainant from his father on one of those occasions was not contested in cross-examination and such conduct cannot be explained on the basis of an innocent visit. On the probabilities he did so because the visit was not of an innocent nature. The applicant’s denial to

when confronted over the phone about his relationship with the complainant

, and his state

ment

that

he only knew the complainant for medical reasons was not consolable

with the telephone conversations and w

as

irreconcilable with the applicant’s claims of innocence.(5) If it was indeed an innocent relationship in which the complainant had become dependent on the applicant he would have conveyed that to her husband. His failure to do so makes his claim in this regard improbable.(6) The very next day the applicant admitted to Dr Sunpath to a serious relationship with the complainant. His later explanation of the admission is really unconvincing to say the least. He had been accused of a sexual relationship the night before by the complainant’s husband. He must have understood what his colleague was enquiring about. If the allegations were fals

e

he would no doubt have conveyed this to Dr Sunpath in no uncertain terms. Instead he admits to a serious relationship and when questioned about the seriousness he refers to the fact that they have been together at his place. It is highly improbable that the applicant would have reacted in this way in the absence of a sexual relationship.(7)

The applicant is thereafter blatantly accused

o

f a sexual relationship at the

P

hoenix

meeting. The situation called for a denial yet he remained silent. To my mind his silence under the circumstances amounted to an admission that he had sexual intercourse with the complainant. His statement on being invited to take the complainant away that he did not “want this to go so far” is irreconcilable with an innocent explanation. His denial in evidence of the existence of a sexual relationship is therefore improbable in the light of what was said before and should be rejected.

5. I am therefore of the view thatthe evidence clearly establishes the findings referred to or the findings by the board namely that the applicant had sexual intercourse with the complainant on at least three occasions. The board therefore correctly found the applicant guilty of unprofessional conduct as recorded.6. The appeal against the sentence cannot succeed. It is trite law that this court will only interfere with a sentence on appeal if it can be shown that the board misdirected itself in any way or if the sentence induces asense of shock. Neither one of these two elements are present in this matter. MrDuminyargued that the sentence should be suspended. Hecould, however, not refer to any misdirection or could not make the allegation that the sentence induced a sense of shock. Under those circumstances this court cannot interfere even though itmay feel that the sentence is harsh.7. In any eventas far as I am concerned unprofessional conduct of a sexual nature towards a patient is serious in nature. The vulnerability of a patient involved is always an aggravating factor. In the circumstances I am of the view that the appeal against the sentence cannot be upheld.8. In view of the above I am of the view that the appeal should be dismissed with costs. The costs to include the cost of two counsel.

5. I am therefore of the view that

the evidence clearly establishes the findings referred to or the findings by the board namely that the applicant had sexual intercourse with the complainant on at least three occasions. The board therefore correctly found the applicant guilty of unprofessional conduct as recorded.

6. The appeal against the sentence cannot succeed. It is trite law that this court will only interfere with a sentence on appeal if it can be shown that the board misdirected itself in any way or if the sentence induces a

sense of shock. Neither one of these two elements are present in this matter. Mr

argued that the s

entence should be suspended. He

could, however, not refer to any misdirection or could not make the allegation that the sentence induced a sense of shock. Under those circumstances this court cannot interfere even though it

may feel that the sentence is harsh.

7. In any event

as far as I am concerned unprofessional conduct of a sexual nature towards a patient is serious in nature. The vulnerability of a patient involved is always an aggravating factor. In the circumstances I am of the view that the appeal against the sentence cannot be upheld.

8. In view of the above I am of the view that the appeal should be dismissed with costs. The costs to include the cost of two counsel.

A DE VOSJUDGE OF THE HIGH COURT

A DE VOS

JUDGE OF THE HIGH COURT

I agree

A P LEDWABA

JUDGE OF THE HIGH COURTI make such an orderA2007/2002

I make such an order

HEARD ON

:

28/02/2006

FOR THE APPLICANT

: ADV

WRE DUMINY SC

INSTRUCTED BY

: MACROBERT INC,

PRETORIA

FOR THE RESPONDENT

S

HB SMALBERG SC &

MM MOJAPELO

: MESSRS

GELDENHUYS LESSING MALATJI

INC,

DATE OF JUDGMENT

30/03/2006