Petse v Health Professions Council of South Africa and Another (91234/2020) [2020] ZAGPPHC 631 (15 October 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 91234/2020

In the matter between:

DR UVIWE PETSE

Applicant

and

HEALTH PROFESSIONS COUNCIL OF 1st Respondent

SOUTH AFRICA

ADV T BOIKANYO 2nd Respondent

JUDGMENT

PHAHLANE, AJ

[1] This is an urgent application in which the applicant seeks an order suspending the implementation of the sanction imposed on him pending the appeal of the sanction. The terms of the interim order sought are as follows:

“1. That the implementation of the sanction imposed by the Professional Conduct Committee of the Health Professions Council of South Africa on Saturday, 12 September 2020 be suspended pending the finalisation of the appeal against that sanction instituted by the applicant in terms of the provisions of Rule 11 of the Regulations Relating to the Conduct of Inquiries into Alleged Unprofessional Conduct under the Health Professions Act, 1974, promulgated under Regulation R102 in the Government Gazette No. 31859 dated 6 February 2009”.

[2] Before delving into the matrix of this application, I will first deal with the issues surrounding service. The respondents were served with the notice of this application at 11:10 on Friday and were called upon to file an answering affidavit by no later than 12:00 the same day. The respondents argued that proper service was not effected and the averments set out in the applicant’s replying affidavit justifying service should not be taken into account as those aspects should have been dealt with in the founding affidavit so as to afford the respondents the opportunity to deal with them in their answering affidavits.

[3] It is the applicant’s contention that proper service has been effected because the application was emailed to the first respondent before 10:00 on Wednesday, 23rd September 2020. He alleges that arrangements were made with Mr Mosiane, the pro-forma complainant in the Professional Conduct Inquiry from the HPCSA that the original application would be served on him on the same day when he (Mr Mosiane) would collect it at 5pm from the applicant’s attorney of record, Mr Mayaba. In paragraph 9.6 of the applicant’s replying affidavit deposed to by his attorney, it is stated that:

“On Wednesday 23 September 2020, the applicant’s application (as yet unsigned) was sent by email to both Mr Mosiane and a Ms Matlakala Mathibeli, an official in the respondent’s department at 09h56. This was done to apprise the respondents at the earliest possible opportunity of the application and the grounds relied upon, to enable them to respond thereto, pending issuing of the application and service of the identical issued application”.

[4] Mr Mayaba explains in this affidavit that he received a telephone call from Mr Mosiane at 17h19 on 23 September 2020 in which he enquired whether he (Mr Mayaba) was still going to serve the application on him that day. He explained to Mr Mosiane that the application had not been served as there had been difficulties in having the application formally issued. Mr Mayaba further indicated that there has been communications between himself and Mr Khumalo who is the deponent to the first respondent’s answering affidavit and the Head of Department: Legal and Regulatory Affairs of the HPCSA in which Mr Khumalo indicated to him on Friday 25 September 2020 at 10h15 that the application had already been received by the respondents. According to him, Mr Mosiane accepted service of the application at his office at approximately 11h10 on 25 September 2020 as had been arranged with him. He noted same in his ‘affidavit in respect of service’- that Mr Mosiane offered to personally attend to his practice address on 23 September 2020 after he was electronically served on the same date.

[5] It is very strange that Mr Mayaba would indicate in an affidavit that Mr Khumalo confirmed that the application has been received by the respondent, while Mr Khumalo had in the answering affidavit stated that the applicant has disregarded the rules of the court by serving the first respondent with the application on 25 September 2020 at 11h00, effectively affording the first respondent only an hour to file an answering affidavit. He stated at paragraph 14 that that “the time frames imposed by the applicant were oppressive in order to steal a march against the first respondent hoping that they will not file the answering affidavit”. It is on this basis that advocate Vimbi on behalf of the first respondent argued that the applicant’s explanation trying to justify service should not be accepted by the court.

[6] Advocate Van Bergen SC on behalf of the applicant argued that the allegation that the respondent only became aware of the application when Mr Mosiane collected it on 25 September 2020, and further that the respondents were afforded 1 hour until 12:00 to respond cannot be true, because there was early service which was effected via email on 23 September 2020. Counsel further

argued that issues pertaining to service could not have been raised in the founding affidavit because service had not been effected yet.

[7] Though Rule 6(12) of the Uniform Rules of Court provides for dispensing with the forms in terms of service, it does not make provision for unsigned applications to be served as that would render the service defective.

[8] I am inclined to agree with advocate Vimbi that the ‘unsigned affidavit’ sent via email to Mr Mosiane on 23 September 2020 is not an affidavit but a document. This is so because a document can only be an affidavit if

it has been signed by the deponent and confirmed by oath or affirmation. As already stated, Mr Mayaba confirms in his affidavit that the application was unsigned. It would therefore be improper to refer to such, as an application. On the other hand, advocate Van Bergen in stating that issues pertaining to service could not have been raised in the founding affidavit because service had not been effected yet, confirms that there was no services effected on Friday 23 September 2020. Having said that, those issues

could still have been raised on the founding affidavit which formed part of the application and was served on Mr Mosiane on 25 September 2020. It is trite that the necessary allegations upon which the applicant relies must appear in the founding affidavit, as the applicant will not generally be allowed to supplement the founding affidavit by adducing supporting facts in a replying affidavit. I am of the view that there was no service effected on 23 September 2020 on the respondents.

[9] With regards to the main issues before court, the facts can briefly be summarised as follows:

9.1 The applicant is a specialist obstetrician and gynaecologist practicing as such at Life Carstenhof clinic in Midrand and Netcare Waterfall City Hospital in Midrand.

9.2 He appeared in a ‘Professional Conduct Inquiry’ held before the Professional Conduct Committee of the Health Professions Council of South Africa (“HPCSA”) on charges emanating from the complaints lodged with the HPCSA by three of his patients.

9.3 Seven counts of alleged unprofessional misconduct were proffered against the applicant in respect of which he pleaded guilty to two counts (counts 1 and 3) pertaining to a patient which the court will refer to as “Ms M”. These two counts relate to the fact that the applicant had on 25 May 2017 removed her Fallopian tubes without her knowledge and consent. In respect of count 1, the charge reads that: “That you are guilty of unprofessional conduct or conduct which, when regard is had to your profession, is unprofessional in that on or about 25 May 2017, in respect of Ms M (your patient), you acted in a manner that is not in accordance with the norms and standards of your profession and that you performed salpingectomy on your patient without her consent”.

In respect of count 3, the charge reads as follows: “That you are guilty of unprofessional conduct or conduct which, when regard is had to your profession, is unprofessional in that on or about 25 May 2017, in respect of Ms M (your patient), you acted in a manner that is not in accordance with the norms and standards of your profession in that you performed salpingectomy, which was not indicated in that the tubes could have been drained and/or fixed in other ways”.

9.4 The applicant was acquitted on the other counts but was duly found guilty only on the counts in respect of which he had pleaded guilty to. A sanction was imposed in terms of which the applicant was suspended from the register of medical practitioners for a period of twelve (12) months, six of which was suspended for a period of three (3) years on condition that he is not found guilty of a similar misconduct committed during the period of suspension.

9.5 The effect of the suspension from the register is that the applicant is disqualified from practicing in his profession and his registration certificate is deemed to be cancelled until the period of suspension has expired or until his name is restored to the register by the professional board.[1]

9.6 This is confirmed in a letter from the HPCSA dated 13 September 2020, in which it is stated: that “the sanction will be with effect from 01 October 2020. Dr Petse is effectively not allowed to practice from 01 October 2020 until 31 March 2021”.

[10] On 22 September 2020 the applicant noted an appeal against his sanction. The application in casu is accordingly prompted by the provisions of section 42(1A) of the Health Professions Act 56 of 1974 (the Act) which provides that a suspension from practice shall remain effective despite an appeal having been lodge. The section reads as follows:

“If an appeal is lodged against a penalty of erasure or suspension from practice, such penalty shall remain effective until the appeal is finalised”.

[11] ‘Notice of intention to cross-appeal and opposition of appeal’ has also been filed and served by the first respondent in which it is stated that the Council is of the view that the sanction imposed on the applicant is lenient and will

as such seek that the applicant be removed from the roll (Register of Medical Practitioners).

The applicant’s case

[12] It was argued on behalf of the applicant that the applicant has a prima facie right to challenge the sanction prior to the sanction being served for the following reasons:

(a) That the deponent who deposed to the answering affidavit of the first respondent has no personal knowledge of the facts because he did not take part in the proceedings and is therefore not in a position to express himself on the seriousness of the offences and further that he does not know the circumstances in which the offences were committed.

(b) That the sanction is severe or excessively harsh.

(c) That there are reasonable prospects of success on appeal

(d) That the irreparable harm which is sought to be protected is the actual loss of the applicant’s ability to appeal against the sentence because if the operation of section 42(1A) is sustained, the appeal falls away and the applicant will not be able to appeal. Put differently, that by the time the appeal is heard, the sanction will already have been implemented, irrespective of the outcome of the appeal which will be rendered nugatory.

(e) The sanction will have a permanent and detrimental impact, not only the applicant but also on the public, especially the applicant’s obstetric patients, who have been under the applicant’s care for the duration of their pregnancies.

(f) There is a risk if the applicant is not allowed to continue practicing in that he has sixty-two (62) patients who are due to deliver in the next three months (ie. in October, November, and December).

(g) That the applicant will suffer financial loss which will have an impact on him, as well as the employees in the applicant’s practice who will lose their employment if the sanction is implemented. In this regard, the applicant stated in his founding affidavit that in terms of the sanction, he will have to close his practice for a period of six months and thus resulting in him being unable to earn an income to support his wife and three children, and finding a substitute tenant in his medical disciplines to provide services.

(h) That the applicant has no other satisfactory remedy available to him and that the balance of convenience favours that he be granted the relief sought because the respondents will be entitled to oppose the appeal with or without a cross-appeal.

[13] It is the applicant’s contention that the sanction imposed was founded on the incorrect finding. He stated that the Professional Conduct Committee erred in imposing an effective period of suspension from practice as a sanction, and that

the Committee took irrelevant factors into consideration and failed to consider his mitigating factors. He submitted that Committee’s

approach to the severity of the transgressions on which he had been found guilty, was a misdirection. In this regard, he stated the circumstances relating to the procedures he undertook in the performance of his duties with regards to his patient Ms M. which I deem unnecessary and irrelevant for purposes of this application, as those aspects will be properly ventilated in the appeal proceedings.

[14] With regards to the argument raised that the court should disregard any factual allegations made by the deponent to the first respondent’s answering affidavit because he has no personal knowledge of the facts of the case as he did not take part in the proceedings, the applicant has not placed any evidence before court to substantiate his argument. Neither was the court afforded

the benefit of knowing the participants or members of the Professional Conduct Committee when the applicant appeared before it.

Mr Khumalo deposed to the answering affidavit of the first respond and stated under oath that:

“1. I am duly authorized to depose to this affidavit and to oppose this application of the first respondent.

2. The facts contained in this affidavit are within my personal knowledge except where the contrary is stated”

[15] With nothing to gainsay what Mr Khumalo has stated in his affidavit, I am of the view that Mr Khumalo having been duly authorized by the first respondent to depose to its answering affidavit, had personal knowledge of the facts of the case.

The first respondent’s case

[16] The first respondent contends that this application is fundamentally flawed and stated that the applicant seeks to defeat the objects of section 42(1A) of the Act without challenging it and without making out a case justifying the relief sought. The first

respondent argued that the relief sought is not competent in law and that the application lacks merits as it is an attempt for the applicant to invite the court to usurp the HPCSA powers bestowed by legislation.

16.1 It was further argued that it is not in the interest of the public to suspend the sanction pending the appeal. It is the respondent’s case that section 42(1A) was put on the statute book to protect the public at large and it is thus important that the public be protected against practitioners who have been found guilty of serious misconduct such as the applicant, pending the outcome of any appeal, particularly where the penalty is one of erasure or suspension from the register of Medical Practitioners. Further that duty to protect the public must be contrasted with the self-serving needs of the applicant to continue practicing amid the

serous misconduct that he has already pleaded guilty to.

16.2 It is stated that the applicant has not challenged the constitutionality of the section 42(1A) of the Act and that there is no basis upon which the applicant can allege that any of the right worthy of protection has been breached by the application of section 42(1A). The first respondent stated further that it will not be just and equitable to disregard the provisions of the Act while there is a clear motive of the application which is self-serving and aimed at protecting the financial interests of the

applicant.

16.3 It was argued that it is not in the interest of justice to suspend the operation of the applicant’s suspension while his actions have already caused irreparable harm to his patients.

[17] The issue for determination by this court is whether the court can suspend the operation of the sanction pending the applicant’s appeal.

[18] As stated in para [10] supra that the applicant noted an appeal, the first respondent argued that the applicant’s notice to appeal is fatally defective and consequently renders the notice non-existent as there is no appeal before the Registrar as required by Regulation 11(2) of the Regulations. In terms of Regulation 11(2) the applicant must submit to the Registrar, a written notice of his intention to appeal. However, the notice of intention to appeal attached to the court bundle as annexure “FA1” reflects that the applicant has noted an appeal to the pro-forma complainant only, and not to the Registrar. As such, the applicant’s notice of appeal is defective for non-compliance or for want of compliance with the provisions of Regulation 11(2). Nonetheless, the court will for purposes of this application accept that notice of appeal has been lodged, because the first respondent has lodged a cross-appeal.

[19] With regards to the issue for determination, the applicant stated in his founding affidavit that he is entitled, not only of the provisions of Regulation 11 relating to an appeal before the ad hoc Appeal Committee of the HPCSA, but also the right to administrative action that is lawful, reasonable and procedurally fair, and stated further that the Professional Conduct Inquiry inclusive of the sanction imposed, constitutes an administrative action in terms of PAJA. He submitted that reasonableness, fairness and justice require that the implementation of the sanction be suspended.

[20] In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others[2] the court stated that:

“In treating the decisions of administrative agencies with the appropriate respect, a court is recognising the proper role of the executive within the Constitution. In doing so a court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government. A court should thus give due weight to findings of fact and policy decisions made by those with special expertise and experience in the field. The extent to which a court should give weight to these considerations will depend upon the character of the decision itself, as well as on the identity of the decision-maker. A decision that requires an equilibrium to be struck between a range of competing interests or considerations and which is to be taken by a person or institution with specific expertise in that area must be shown respect by the courts. Often a power will identify a goal to be achieved but will not dictate which route should be followed to achieve that goal. In such circumstances a court should pay due respect to the route selected by the decision-maker.

[21] This decision makes it clear that the courts should recognise the separation of powers afforded to functionaries such as the Professional Conduct Committee of the HPCSA. It is on this basis that advocate Vimbi submitted that the first respondent was constitutionally ordained and conferred with the

powers to exercise its duties to regulate the medical practitioners and protect public health, with the expertise and knowledge in their field.

[22] Although the case of National Treasury and Others v Opposition to Urban Tolling Alliance and Others[3] differs from the current matter, the principle regarding the issue of separation of powers remain relevant. The Constitutional Court stated that:

“There is yet another and very important consideration when the balance of convenience is struck. It relates to separation of powers. In ITAC we followed earlier statements in Doctors for Life and warned that:

“Where the Constitution or valid legislation has entrusted specific powers and functions to a particular branch of government, courts may not usurp that power or function by making a decision of their preference. That would frustrate the balance of power implied in the principle of separation of powers. The primary responsibility of a court is not to make decisions reserved for or within the domain of other branches of government, but rather to ensure that the concerned branches of government exercise their authority within the bounds of the Constitution. This would especially be so where the decision in issue is policy-laden as well as polycentric”.

[23] Relying on De Beer v Dire Raad vir Gesondheidsberoepe van Suid-Africa and Peer v Chairperson Medical and Dental Professions Board and Others[4], advocate Van Bergen submitted that the court should exercise its discretionary power and suspend the operation of the sanction

imposed. On the other hand, advocate Vimbi submitted that the court should have regard to the purpose for which 42(1A) of the Act was promulgated, which is the protection of public health and interests because the balance of convenience favours the refusal of the relief sought by the applicant.

[24] Referring to the case of Ntlemeza v Helen Susman Foundation and Another[5] advocate Vimbi further argued that in terms of section 42(1A) of the Act, the sanction is not suspended by operation of law and

accordingly the applicant bears the onus to satisfy the court why the provisions of the section should not be applied, and submitted that the applicant has failed to do so.

[25] In dealing with the impediment created by the application of section 42(1A) of the Act, Botha J, in the Peer matter supra stated that:

“…It is clear that the legislature did not grant the court, or the appeal committee, or any official, the power to grant relief from the harsh effect of section 42(1A) if an appeal is noted against an erasure or suspension”.

[26] The Constitutional Court in Economic Freedom Fighters v Speaker of the National Assembly[6] stated that:

“Courts must be conscious of the vital limits on judicial authority and the Constitution’s design to leave certain matters to other branches of government. They too must observe the constitutional limits of their authority. This means that the judiciary should not interfere in the processes of other branches of government…”.

[27] In his founding affidavit, the applicant made reference to a medical article relating to the importance of the relationship between the obstetrician and the patient. He stated that it is not easy for a woman to change from one obstetrician and gynaecologist to another and that he has built an enduring patient-doctor relationship with his patients. His counsel submitted that if this relationship is broken, it will cause potential harm to his patients. The first respondent argued that the actions of the applicant has already caused irreparable harm to his patients and submitted that it will be irresponsible for the Council to let the applicant to practice and put his patients at risk. Further that in the light of the serious misconducts to which the applicant has pleaded guilty to, it will not be in the interests of justice to suspend the operations of the applicant’s suspension.

[28] When the law entrusts a functionary with a discretion, it means just that. Having applied the above principles, I align myself with the decision in Bato Star Fishing supra that the court should give due weight and consideration to the decisions made by those with special expertise and experience because

the Professional Conduct Committee in suspending the applicant from practice, was in a better placed position with its expertise in the field of medicine to know whether the applicant’s patients would suffer potential harm if the doctor-patient relationship is broken.

[29] I am of the view that the order sought by the applicant seeks to intrude on the powers granted to an ad hoc Appeal Committee of the HPCSA which in terms of the provisions of section 10(2) of the Act, may vary; confirm or set aside a finding of a Professional Conduct Committee.

[30] His counsel correctly pointed out that the court has a general and overriding discretion whether to grant or refuse and interim relief. Having taken all factors into consideration, I am of the view that the applicant failed to establish or satisfy the allegation that he has a prima facie right. The applicant has not shown any right worthy of protection which has been breached by the application of section 42(1A) of the Act. He is still entitled by Regulation 11 to challenge the sanction, which right remain intact.

[31] With regards to the balance of convenience and irreparable harm, the applicant stated that he will suffer financial prejudice because he will have to close two of his practices and that the impact of the sanction on the interests of the public, more particularly the interests of his patients should be taken into consideration. He however does not deny the point raised by the first respondent that the legislature’s intention by the promulgation of section 42(1A) of the Act was aimed at protecting the public from the conduct of medical practitioners where a penalty of suspension from practice has been imposed, pending appeal. I am inclined to agree with the first respondent that the balance of convenience favours the protection of the public over the financial interests of the applicant, more so because the applicant appreciates that the interests of the public should be taken into consideration. I am of the view that there is no apprehension of irreparable harm which favours the granting of a relief sought by the applicant.

[32] With regards to the question whether there are prospects of success on appeal, both the applicant and the first respondent are ad idem with the fact that the applicant had removed the fallopian tubes of his patient without her knowledge and consent, and have pleaded guilty thereto. However, the applicant is of the view that the sanction imposed was founded on the incorrect finding. Be that as it may, the applicant had in his founding affidavit indicated, as also submitted by his counsel, that the applicant is not asking the court to make a finding on the prospects of the appeal or review the decision or consider this application as an appeal. Further that the applicant seeks the opportunity to go before an ad hoc Appeal Committee of the Health Professions Council to make a finding on the propriety of the sanction. With this in mind, and the fact I have already stated that the circumstances relating to the procedures the applicant undertook in the performance of his duties with regards to his patient Ms M., is irrelevant for purposes of this application as those aspects will be properly ventilated in the appeal proceedings, I am unable to find that the applicant has reasonable prospects of success on appeal.

[33] I have seriously considered the circumstances of this case as well as the arguments and submissions made on behalf of both parties, and I can find no substantial reasons why this court should grant interim order suspending the implementation of the sanction imposed by the Professional Conduct Committee of the HPCSA. I am of the view that the applicant failed to satisfy the court that an interim interdict should be granted in his favour.

[34] In the circumstance, the following order is made:

1. The application is dismissed with costs.

P. D. PHAHLANE

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

For the Applicant

: ADV. CH VAN BERGEN SC

Instructed by

: MACROBERT INCORPORATED

BROOKLYN, PRETORIA

Tel: (012) 425-4300

Email: jmayaba@macrobert.co.za

For the First Respondent

: ADV. M VIMBI

Instructed by

: MKHONTO & NGWENYA INCORPORATED

LYTTELTON, CENTURION

PRETORIA

Tel: (012) 645-1039 / 082 213 1106

Email:

For the Second Respondent : No appearance

C/O HEALTH PROFFESIONS COUNCIL OF SOUTH FRICA

ARCADIA, PRETORIA

Date Heard :

30 September 2020

Date Delivered :

15 October 2020

[1] See: section 44 of Act 56 of 1974.

[2] [2004] ZACC 15; 2004 (4) SA 490 (CC) at para 48.

[3] (CCT 38/12) [2012] ZACC 18; 2012 (6) SA 223 (CC); 2012 (11) BCLR 1148 (CC) at para 63.

[4] De Beer v Dire Raad vir Gesondheidsberoepe van Suid-Africa 2003DJR 0757 (T); Peer v Chairperson Medical and Dental Professions Board and Others, case no. 76888/2010 (24/12/2010) (Unreported)

[5] 2017 (5) SA 402 (SCA)

[6] [2016] ZACC 11; 2016 (3) SA 580 (CC); 2016 (5) BCLR 618 (CC) at para 92