Sello v Health Professions Council of South Africa and Others (49162/18) [2018] ZAGPPHC 551 (6 August 2018)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) NOT REPORTABLE

(2) NOT OF INTEREST TO OTHER JUDGES

(3) REVISED.

Case Number: 49162/18

6/8/2018

In the matter between:

DR DAVID GAOTINGWE SELLO

Applicant

and

HEALTH PROFESSIONS COUNCIL OF SOUTH AFRICA

First Respondent

PROF F PARUK

In her capacity as Chairperson of an ad hoc suspension

committee of the Medical and Dental Professions Board Second Respondent

THE CHAIRPERSON OF THE MEDICAL AND

DENTAL PROFESSIONS BOARD

Third Respondent

JUDGMENT

POTTERILL J

[1] The applicant, a doctor, brought an urgent application that his suspension effective from 13 June 20 18 , pending a hearing by a Professional Conduct Committee in terms of section 15(5)(f) of the Health Professions Act 56 of 1974 ("the Act") be reviewed and set aside.

[2] The applicant is also seeking a declaratory order that there is no impediment in terms of the Act for the applicant to practise his profession.

[3] The application was brought in terms of section 6 of the Promotion of Administrative Justice Act 2000 ("PAJA"). In argument no reliance was placed on section 6 of PAJA but it was argued that the principle of legality was extended to an unfair process and that the procedural points raised by the applicant render the conduct of the Committee to suspend the applicant as irrational affording the suspension to be set aside.[1]

[4] The headline of the applicant's matter is: No matter how good the merits of the respondents' case is if the administrative action performed contravened formal statutory requirements the suspension is invalid.

The common cause background

[5] During March 2018 the Health Professions Council of South Africa ("the HPCSA") was approached by ENCA to obtain comments in respect of a television programme known as "Checkpoint''. A number of complaints, alleging possible acts of unprofessional conduct, had been made against the applicant.

[6] On 23 February 2018 there was an inspection of the applicant' s practice to investigate the claim of one of the five complainants prior to the ENCA interview. It was recommended that the matter be referred to Legal Services for further investigations.

[7] During the period March 2018 and April 20 18 the complainants were contacted and five statements were obtained from the five complainants.

[8] On 16 March 2018 the applicant was informed of the charges to which the applicant responded without any reference to the merits. Also on this date an e-mail was sent from Mr. Mphaphuli from the Legal Department of the HPCSA to Dr. Dhlamini informing him that:

"The COO and the President wanted us to arrange a special professional committee to suspend him yesterday."

[9] On 23 May 2018 the applicant was provided with a bundle of documents as well as a notice to appear before an ad hoc committee on 12 to 13 June 2018.

[10] On 7 June 20 18 the Chairperson: Medical and Dental Professions Board, the first respondent ("the Chairperson") , approved the

appointment of the Professional Conduct Committee consisting of Mr. Mkhontoas the legal assessor and Prof. Paruk as the Chairperson,

second respondent ("Paruk"), and Drs. Chetty and Appie as members of the Committee. The letter to the Chairperson was drafted by Ms. Raseawelo, the Co- ordinator: Professional Conduct and dated 1 May 20 18 .

The legislative framework

[11] Section 15(B)(a) provides for inter alia: " or suspend a registered person from practising his or her profession pending the institution of a formal inquiry in terms of section 4I. "The regulations to this Act, now relevant, was published under Government Notice R1356 in Government Gazette 23998 of 1 November 2002.

[12] Section 19 A(1):

''A relevant professional board or a committee of a professional board to whom the function has been delegated may authorise the registrar to suspend the registration of any person -

(e) who on the basis of a complaint lodged with the council or information available at the disposal of council is posing an imminent threat or danger to the public in terms of his or professional practice. "

[13] In terms of Regulation 3(4):

"The registrar shall as soon as possible forward a complaint, together with any evidential material, to the chairperson of the professional board established for the profession in respect of which the practitioner against whom a complaint has been made is registered, for further consideration. "

Regulation 3(5):

"If the chairperson of the relevant professional board is of the opinion that the complaint, together with any evidential material, reveals prima facie evidence of unprofessional conduct of the nature referred to in regulation 2 and that the matter should be considered further by such professional board, he or she shall refer the matter to an ad hoc committee of such professional board and instruct the registrar to appoint the pro-forma complainant to present the case before the ad hoc committee."

Regulation 3( 8 ):

"The chairperson of the relevant professional board or the chairperson of an ad hoc committee may appoint a person with sufficient experience in the administration of justice to advise such professional board or ad hoc committee before or during a suspension hearing on any aspect of law, procedure or evidence."

[14] Regulation 2(2)(a) reads as follows:

"The procedures referred to in regulations J and 4 may be departed from only if this is reasonable and justifiable in the particular circumstances and only to the extent that is necessary.

Regulation 2( 2)( b) :

''A departure from the procedures referred to in paragraph (a) shall include but is not limited to a departure from the stipulated time frames referred to in regulations 3 and 4."

The grounds for review

[15] The submission is that the date of the hearing was not determined as required by Regulation 3 ( 7). Regulation 3( 7) reads as follows:

"The chairperson of the relevant professional board shall, in consultation with the registrar and the chairperson of an ad hoc committee, and having regard to the degree of seriousness and urgency of the matter, determine the date, time and place of the hearing for consideration of the matter by such ad hoc committee. "

[16] The non-compliance with Regulation 3( 7) lies therein that the Chairperson did not determine the date and furthermore the date was not determined in consultation between Paruk and the Chairperson. This resulted in an unfairness in that the pro forma complainant , a subjective person, determined the date also not in consultation with the applicant. The unfairness lies also therein that the date was determined on the 1st of May 2018, but was only conveyed to the applicant on the 23rd of May 2018. The 23rd of May 20 18 constituted only three weeks before the hearing. The unfairness is escalated in that the notice to appear was not served on the applicant's attorney who was on record.

[17] This ground of review is meritless. If the letter of the Regulation has to be followed: no date for the hearing has to be in consultation with the applicant. Nineteen days' notice for an urgent suspension hearing can in nobody's books constitute an insufficient time period of notice resulting in unfairness. A Regulation must serve a purpose; the purpose of the consultation would relate to the availability of the selected ad hoc members and nothing else. It clearly suited all the members of the ad hoc committee and they were all at the hearing. The attorney for the applicant expressly informed the HPCSA that he did not have instructions pertaining to the suspension hearing and thus service on him would in fact have constituted an irregular

service.

The appointment of the ad hoc committee

[18] The applicant's representative at the suspension hearing asked for the appointment letters of the committee, despite this request the applicant had never received any appointment letters. The request by the applicant's representative was seen as a delaying tactic and in fact the pro-forma prosecutor had informed the ad hoc committee that he had sent the appointment certificates to the applicant and his attorney, but they had in fact never received same. The crux of the argument is that there was in fact no appointment of the ad hoc committee; there was only an approval of an ad hoc committee. This flows from the comparison between the appointment letter of the proforma complainant (DGS10) with DGS8 , the approval of the committee.

[19] The respondent's version pertaining to the ''establishment" versus the "appointment" in terms of the regulations, was not replied to by the applicant and in terms of trite law, the respondent' s version must than be accepted, unless far-fetched, untenable, uncreditworthy or bad in law.[2] I cannot find the version to be any of the last- mentioned.

[20] Regulations 3(5) and 3(8) regulate the appointment of the pro-forma prosecutor and the "person with sufficient experience in the administration of justice" that must be appointed for the functioning of a suspension hearing. The other members of the ad hoc committee need not be formally appointed. Reliance for the non-compliance with the procedures as set out in the regulations is based on Regulation 3( 5) and ( 6); the ad hoc committee must also be formally appointed. Upon a reading of those regulations it does not explicitly or by implication make reference to the "appointment" of the committee. Regulation 3( 6) expressly reads that the ad hoc committee must be established. In this context the Oxford dictionary defines ''established" as ''initiate or bring about". The ad hoc committee was brought about and fulfilled their function at the suspension hearing.

[21] It was also advanced that the Chairperson did not constitute the ad hoc committee, as he only attended to the letter dated 1 May 2018 [setting out the members of the ad hoc committee] on 7 June 20 18; i.e. ex post facto. It was argued that what should have happened was that the Registrar of the Board was to forward the complaint to the Chairperson for his consideration. If he was of the opinion that the complaint reveals prima fade evidence of unprofessional conduct he should have referred the matter to an ad hoc suspension committee established by himself. There was however no evidence that the board had resolved that the suspension hearing be held. Factually the pro-forma complainant and a number of other officials did which was in the domain of the chairperson.

[22] The Chairperson was interviewed by ENCA about the complaints against the applicant. He was thus fully aware of the nature of the complaints. There was already an investigation launched against the applicant on one of these complaints prior to the suspension hearing. The complaints are in detail set out in the respondent' s answering affidavit. The complaints are indeed serious. The applicant in his reply is completely silent on these complaints. The complaints set out are indeed of extreme seriousness and the HPCSA had to act to fulfil its duty to protect the unsuspecting public. Suspension to prevent harm or injury to a patient as a result of unsafe professional practises or a substantial risk of such harm or injury needs to be averted. The chairman was on these facts not in the dark about the nature of the complaints. The fact that the President of the HPCSA wanted an urgent suspension hearing does not negate the Chairperson's involvement. But, in any event, if I am wrong and there was non-compliance with Regulation 3 and 4, I find that Regulation ( 2)( 2), as argued, was under these circumstances reasonably and justifiably applied. The mere fact that the Chairperson of the board only signed the letter of the ad hoc committee's appointment later is a justifiable and reasonable deviation due to the urgency of the protection of any possible patients. In the balancing of the rights of a citizen of South Africa to practise his profession, the protection of the public will override the applicant's rights. The Chairperson was fully au fait with this matter and I am satisfied that under these circumstances the administrative action was just and reasonable and conformed with the principles of legality.

The averment of bias

[23] The bias of the committee is set out as a ground for review. The facts in the founding affidavit is astoundingly this bald averment: "I am advised that the record of the proceedings spanning 132 pages reflects repetitively bias on behalf of the ad hoc committee against myself. Full argument in that regard will be addressed to the Honourable Court." It is trite law that such a bald averment does not constitute a review ground.[3] It is thus not surprising that the review ground of the alleged bias was not addressed at this hearing by senior counsel on behalf of the applicant. I find it unnecessary to at all address this point. In the replying affidavit it is averred that counsel would take court through the record. This is an unacceptable practice and simply unsustainable as there are no grounds set out in the applicant' s founding affidavit.[4]

The refusal of a right to legal representation

[24] In the founding affidavit the grounds for review is set out and the bare averment is made that the committee refused the applicant a right to legal representation. In the founding affidavit there is not a single fact set out to substantiate this bald averment. It accordingly needed no answer from the respondent. In the replying affidavit the applicant sets out that the ad hoc committee was biased simply because he insisted on legal representation. It would thus seem that although the right to legal representation was raised as a separate ground for review it in fact formed part of the bias of the sub-commtitee. An applicant cannot make out a case in the replying affidavit and since there was absolutely no foundation for bias in the founding affidavit, I do not find it necessary to address this point any further. In any event, the argument raised on behalf of the respondent that attorneys were instructed to appear at the suspension hearing even though the applicant knew that this attorney was unavailable. The applicant cannot then cry foul that he was not entitled to legal representation if he appointed a legal representative that was unavailable.

[25] The legal officer of the HPCSA is the deponent to the answering affidavit. Much criticism was levelled that Paruk and the Chairperson did not file affidavits. In fact the criticism was extended in the heads of the argument on behalf of the applicant that the President of the HPCSA as well as the Chief Operating Officer should have filed affidavits. Again the question to be arrived at is at what purpose? The answer provided by the applicant is that it is disconcerting that they did not answer; thus not submitting that the absence of the affidavit is fatal or prejudicial to the applicant. The serious allegations made against the committee is that it was biased and refused the applicant a right to legal representation. Simply no facts were set out for these bald allegations and the committee had no reason or obligation to answer to these bald statements i.e. filing affidavits. The allegation against the Chairperson is that he did not lawfully appoint Chetty and Appie and Paruk and did not lawfully determine a date and place of the hearing. These points were fully argued by the applicant despite there being no affidavit from

the Chairperson. I cannot find that it was fatal or indeed necessary for the Chairperson to have filed an affidavit.

[26] Accordingly I cannot find that the administrative action was performed in contravention of any formal statutory requirement. The action is valid and necessary. No court can or would on these grounds of review set aside a suspension allowing this applicant to practise pending the hearing. Any weighing up of the interests of the applicant versus

the public would on a balance go to protection of the public. As no arguments were submitted on section 6 of PAJA, I make no finding

thereon.

[27] I accordingly dismiss the application with costs.

S. POTTERILL

JUDGE OF THE HIGH COURT

CASE NO: 4916 2 / 18

HEARD ON: 1 August 2018

FOR THE APPLICANT: ADV. Q . PELSER SC

INSTRUCTED BY: Moratha & Mataka Attorneys c/o Mpoyana Ledwaba Inc.

FOR THE 1ST , 2ND , 3RD RESPONDENTS: ADV. S. TSHIKILA

INSTRUCTED BY: Fiarbridges Wertheim Becker Attorneys c/o Macintosh, Cross Farquharson

DATE OF JUDGMENT: 6 August 2018

[1] Albutt v Centre for the Study of Violence and Reconciliation, and Others 2010 (3) SA 293 (CC)

[2] National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) (pa r 26); Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) 634-635; Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) para 55; Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma v National Director of Public Prosecutions and Others [2008] ZACC 13; 2009 (1) SA 1 (CC) (2008 (2) SACR 421; (2008) ZACC13) paras 8-10

[3] Venmop 275 {Pty) Ltd and Another v Clever/ad Projects (Pty) Ltd and Another 2016 (1) SA 78 (GJ) paragraph s 7-12

[4] Genesis Medical Aid Scheme v Registrar, Medical Schemes and Another 2017 (6) SA 1 (CC) para 171: "The fact that the second respondent got the point about the auditor's assurance report from an annexure from one of the affidavits and not from the respondents' answering affidavit raises the question whether it is permissible in our law to decide a matter on the basis of a point contained in, or based on, an annexure to an affidavit but which is not covered in the relevant affidavit. The answer is NO."