THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 1356/2019

In the matter between:
THE HEALTH PROFESSIONS COUNCIL
OF SOUTH AFRICA

First Appellant
T MAFAFO N.O

Second Appellant
S RAMASALA N.O

Third Appellant

and

DR DAVID STEPHEN GRIEVE

Respondent

Neutral citation: The Health Professions Council of South Africa and
Others v Grieve (1356/2019) [2021] ZASCA 06 (15
January 2021)
Coram:
DAMBUZA, PLASKET, NICHOLLS JJA, WEINER and
SUTHERLAND AJJA
Heard:

12 November 2020

Delivered: This judgment was handed down electronically by circulation to
the parties’ legal representatives by email publication on the Supreme Court
of Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be 10H00 on 15 January 2021

Summary: Administrative Law: Review of decision of the Health
Professions Council of South Africa: allegations that doctor persuaded
patients to invest in a financially distressed company of which he was a
director and misappropriated moneys invested by patients: Council the
primary custos morum of the health professions: decision in line with the
Council’s supervisory duties over the health profession: no proper basis
for review.

ORDER

On appeal from: Gauteng High Court, Pretoria (Khumalo J sitting as court
of first instance):
1 The appeal succeeds with costs.
2 The order of the high court is set aside and replaced with the following order:
‘1
The point in limine is dismissed with costs

The matter is remitted to the Professional Conduct Committee’.

JUDGMENT

Dambuza JA (Plasket, Nicholls JJA, Weiner and Sutherland AJJA
concurring)

Introduction
[1] On 25 November 2014 the respondent, Dr David Grieve, appeared
before the professional conduct committee (the committee) of the first
appellant, the Health Professions Council of South African (the Council). He
was charged with unprofessional conduct, it being alleged, amongst other
things, that  during the period 2004 to 2009 he improperly persuaded a number
of his patients to invest in a financially distressed company of which he was
a director, and that he transferred funds invested in that company to his private
bank account. On the two days that the matter served before the committee
the second and third appellants acted as chairpersons thereof.

[2] A point in limine raised by Dr Grieves, that the Council lacked
jurisdiction in relation to the subject matter of the charge, was dismissed by
the committee. After his attempt at lodging an internal appeal with the
Council’s Appeal Committee failed, Dr Grieves launched an application, in
the Gauteng High Court, Pretoria (high court, Khumalo J), for review of the
Council decision to institute disciplinary proceedings against him. The high
court granted an order setting aside the decision of the committee and
upholding Dr Grieve’s point in limine. This appeal against the judgment of
the high court is with the leave of this court.

Background
[3] Dr Grieve is a general medical practitioner from Centurion, Gauteng.
On 4 August 2014 he received a notice from the Council, inviting him to
attend a disciplinary inquiry scheduled for the period 24 to 26 November 2014
in relation to unprofessional conduct charges preferred against him. He was
charged with contravening the norms and standards of his profession,
alternatively, bringing the good name of his profession into disrepute by: (a)
persuading some of his patients and former patients to invest in a company of
which he was a director when he knew that the company was in financial
distress; and/or (b) transferring funds invested in his company into his private
bank account; and/or (c) causing financial prejudice to the persons concerned
who were persuaded to deposit large sums of money into bank accounts of
companies that were subsequently liquidated.

[4] Dr Grieve objected to the committee instituting disciplinary
proceedings against him, asserting, in limine, that the factual allegations that
formed the basis of the charges did not constitute unprofessional conduct as

envisaged in the Health Professions Act 56 of 1974 (the Act) in that they did
not relate to the ‘health profession’. The committee was therefore acting
beyond the powers conferred on it in terms of s 49 and did not have the
jurisdiction to prosecute him, so he contended. The point in limine was
dismissed by the committee. Dr Grieves attempted to appeal against the
dismissal of his point in limine. However the Council refused to afford him an
appeal hearing, saying that such procedure was not provided for in the Act.
Dr Grieve then approached the high court for review of the decision by the
Council, through its committee, to charge him.

[5] In the high court Dr Grieve persisted in his contention that the Council
had no authority to institute the disciplinary proceedings as the conduct
complained of did not relate to the health profession. He also contended that
in assuming jurisdiction over him the Council concluded, incorrectly, that
because in 2010 it had considered charges similar to his, it had jurisdiction in
respect of the allegations against him. Similarly irrelevant, according to Dr
Grieve was the premise that because a report had been made about his conduct
at Lyttleton Police Station, and the matter had become public knowledge, a
public interest duty arose for the Council to proceed with the inquiry.  In
essence the basis for the review was that the decision to institute disciplinary
proceedings against him and to dismiss the special plea was not rationally
connected to the empowering provision in the Act.

[6] The Council opposed the review application on the basis that it was
premature, having been launched before the finalization of the merits of the
disciplinary hearing. It was contended on its behalf that both the internal
appeal that Dr Grieve attempted to lodge against the dismissal of his point in

limine and the review proceedings constituted impermissible piecemeal
litigation tactics.

[7] In upholding the point in limine the high court drew a distinction
between Dr Grieve being accused of having abused the doctor patient
relationship with his patients, which, according to the court, ‘would
undoubtedly have put the health profession into disrepute’ and the allegations
that he ‘persuaded his patients to invest in the companies when he knew or
ought to have known that [they] were in financial distress’, which, on the
court’s reasoning, was not unprofessional conduct. It found that the doctor’s
conduct did not relate to ‘treatment’ of his patients, or to the health profession.
It relied on the regulations which define the Scope and Profession of
Medicine1 and found that the doctor’s conduct did not accord with the acts
relating to the health profession as listed or defined therein. The high court
then concluded that in the circumstances the Council could only determine
whether the doctor’s engagements with his patients constituted unprofessional
conduct if or when he was convicted of criminal conduct as provided in s 45
of the Act.

On appeal
[8] Although in his Heads of Argument on appeal Dr Grieve insisted that
the Council did not have the requisite jurisdiction, this stance was abandoned
at the hearing of the appeal. Instead it was submitted on his behalf that the
charges lacked the necessary particularity, such as the names of the investor
patients and the companies in which they invested. However, that is not the

1 Issued under Government Notice R237 published on 6 March 2009 in Government Gazette 31958 in terms
of s 33(1) read with s 61(2) of the Act.

case that was brought before the high court. Furthermore, as submitted on
behalf of the Council, the doctor never sought any further particulars to the
charges.

[9] Be that as it may, the concession was correctly made. Dr Grieve’s
counsel accepted that the conduct complained of fell within the jurisdiction of
the Council. Section 41(1) of the Act confers power on the Professional
Boards of Council to ‘institute an inquiry into any complaint, charge or
allegation of unprofessional conduct against any person registered under the
Act’. It was common cause that Dr Grieve was a registered health practitioner
with the Council in terms of the Act. The committee is a Professional Board
appointed by the Council in terms of s 15 of the Act. The only issue was
whether the conduct complained of, if proved, would constitute
unprofessional conduct.

[10] Unprofessional conduct is defined in the Act as ‘improper or
disgraceful or dishonourable or unworthy conduct or conduct which, when
regard is had to the profession of a person who is registered in terms of this
Act is improper or dishonourable or unworthy’.2 This definition is broad, and
nothing in it supports the contention that the Council’s jurisdiction is confined
to the conduct of rendering of health services.

[11] Contrary to the limited disciplinary powers which Dr Grieve contended
for, in terms of the Act the Council bears extensive supervisory functions
which include: protection of the public from conduct arising during the

2 Section 1 of the Act.

rendering of health services3; maintenance of professional and ethical
standards within the profession4; ensuring that investigation of complaints
concerning persons registered in terms of the Act are done and that appropriate
disciplinary action is taken  against such persons in accordance with the Act
in order to protect the interests of the public5; and ensuring that persons
registered in terms of the Act behave towards users of health services in a
manner that respects their constitutional rights to human dignity, bodily and
psychological integrity and equality, and that disciplinary action is taken
against persons who fail to act accordingly.6 In addition, the functions of the
Professional Bodies include the maintenance and enhancement of the health
profession and the integrity of persons practising such profession, guiding the
relevant health professions, and protection of members of the public.7

[12] The Council is therefore not merely a medical malpractice watchdog; it
is also the primary guardian of morals of the health profession.8 As this court
held in Preddy and Another v Health Professions Council of South Africa9:
‘It has been said of the various predecessors of the council that each was the repository of
power to make findings about what is ethical and unethical in the medical practice and the
body par excellence to set the standard of honour to which its members should conform’.

[13] In Preddy the appellants, both specialist medical practitioners
registered with the Council in terms of the Act, had been found guilty of
unprofessional conduct arising from receiving kickbacks in return for

3 Section 3(j) of the Act.
4 Section 3(m) of the Act.
5 Section 3(n) of the Act.
6 Section 3(o) of the Act.
7 Subsections 15A (g) and (h).
8 De Beer v Health Professions Council of South Africa 2007(2) SA 502 (SCA); Veriava and Others v
President SA Medical and Dental Council and Others 1985 (2) SA 293 (T).
9 Preddy and Another v Health Professions Council of South Africa 2008 (4) SA 434 (SCA) para [6].

referring patients to a particular radiology  firm. The Disciplinary Committee
of Council found the receipt of the ‘perverse incentives’ by the doctors to be
disgraceful conduct. The condemned conduct in Preddy did not relate to the
practice of medicine. It was also not a listed prohibited form of conduct under
the regulations. But it was found to be morally and ethically reprehensible
because the medical practitioners concerned had used their access to the
relevant patient to make undue financial gains (in addition to the professional
fees due to them for their services). In the appeal before us the allegations are,
in essence, that Dr Grieve used his access to his patients to benefit himself
and his companies unduly, to the prejudice of the patients. If the allegations
are proved, the misconduct in this case could be more serious than in Preddy.

[14] Should the Council have awaited the results of criminal prosecution?
Indeed a criminal conviction may trigger disciplinary proceedings by the
Council or Professional Board as provided in s 45 of the Act. However the
Council’s disciplinary functions are not limited to instances where there has
been criminal conviction.  It is the Council’s duty to act against conduct that
is improper, unethical, dishonourable, disgraceful and unworthy. Conduct
may be unethical without being criminal. And criminal prosecution may result
in an acquittal for reasons other than the innocence of the respondent or
accused. The Council remains obliged to discharge its duties as the moral
compass of the health profession. For example, in De Beer10 this court
confirmed the increase, by the Council, of a penalty that had been
recommended by the disciplinary committee, against a doctor who had
sexually abused his patient.11 The Council’s decision in De Beer was not

10 Fn 8 supra.
11 Ibid

premised on a criminal conviction. It was an incidence of the Council’s
initiative in fulfilment of its custos morum responsibility.

[15] In this case the allegations were that unprofessional conduct occurred
within a doctor-patient relationship. The Council as the administrative body
charged with the function of defining the norms and standards, and monitoring
adherence to the ethical prescripts of the medical profession, was the primary
repository of disciplinary power in relation to unethical conduct by its
registered members.

[16] The fact that the conduct complained of was not defined or listed in the
regulations did not detract from the Council’s administrative powers in
respect of other conduct that it reasonably considered to be unprofessional.
Indeed s 49 of the Act provides for specification of acts or omissions in respect
of which the Council may take disciplinary action. However, the matter does
not end there because the section also provides that the powers of the Council
shall not be limited to the specified acts. It reads as follows:
‘The Council shall, in consultation with the Professional Board, from time to time, make
rules specifying the acts or omissions in respect of which the Professional Board may take
disciplinary steps under this Chapter; provided that the powers of the Professional Board
to inquire into and deal with any complaint, charge or allegation relating to a health
profession under this Chapter, shall not be limited to the acts or omission so specified’.
(emphasis supplied)

[17] In the end, the two jurisdictional bases for the exercise of the Council’s
disciplinary authority are registration, by the health professional concerned,
with the Council and allegations which, if proved, would constitute improper,
or disgraceful or dishonourable or unworthy conduct. In some instances, such

as this case, a doctor-patient relationship will be a feature of the alleged
conduct.  However, such a relationship is not a prerequisite for the council’s
jurisdiction.

[18] In this case it was submitted on behalf of the Council that the allegations
made against Dr Grieve, if proved, would constitute unprofessional conduct;
hence the decision to institute disciplinary proceedings. I agree that the
decision to institute disciplinary proceedings was rational and within the
powers of Council.

[19] Consequently:
The appeal is upheld with costs including the costs of two counsel.
The order of the high court is set aside and replaced with the following:

‘1
The point in limine is dismissed with costs.

The matter is remitted to the Professional Conduct Committee’.

________________________
N DAMBUZA
JUDGE OF APPEAL

Appearances

For Appellant:
J G Rautenbach SC (with him B Maphosa)
Instructed by:

Mkhonto Ngwenya Incorporated, Pretoria

Phalatsi & Partners, Bloemfontein

For the Respondent:
H F Jacobs SC (with him D E Hugo)
Instructed by:

Hills Incorporated, Pretoria
Kramer Weighmann and Joubert Inc.,
Bloemfontein.

THE SUPREME COURT OF APPEAL OFSOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED

FROM

The Registrar, Supreme Court of Appeal

DATE

15 January 2021

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

The Health Professions Council of South Africa and Others v Grieve (1356/2019)
[2021] ZASCA 06 (15 January 2021).

MEDIA STATEMENT

Today the Supreme Court of Appeal upheld an appeal against a court order of the
Gauteng High court, Pretoria which set aside a decision of the Health Professions
Council of South Africa (HPCSA) to charge Dr David Grieve of Pretoria for
unprofessional conduct.

On 25 November 2014 the Dr Grieve appeared before the professional conduct
committee of the HPCSA on charges of unprofessional conduct. The charges
emanated from allegations that during the period 2004 to 2009 Dr Grieve persuaded
his patients and former patients to invest in a financially distressed company of which
he was a director. It was also alleged that he the misappropriated the funds invested
by his patients.

Dr Grieve objected to the disciplinary process, challenging the authority of the
committee (and the Council) to charge him on the subject of the charges fell outside
the Council’s jurisdiction as envisaged in s 49 of the Health Professions Act 56 of 1974
(the Act). According to him the subject which formed the basis of the charges did not
relate to the health profession. The committee dismissed the objection.

After Dr Grieve had tried, unsuccessfully, to lodge an internal appeal against the
withdrawal of his objection, he approached the high court for a review of the
committee’s decision to prosecute him. The high court upheld the objection and
granted an order setting aside the decision to prosecute Dr Grieve. The Council the
appealed to the Supreme Court of Appeal against the high court decision.

In upholding the appeal the SCA held that the correct approach was to ask whether
the conduct complained of, if proved, would indeed constitute unprofessional conduct.
It held that the Act’s definition of unprofessional conduct is sufficiently wide to support
the exercise of the Council’s supervisory functions over conduct that is not directly
related to the rendering of health services. It emphasized that the Council is not only
a medical malpractice watchdog; it is also the primary guardian of morals in the health
profession. It found further that the Council’s supervisory functions are not limited to
instances where there has been a criminal conviction, as some unethical conduct may
not be criminal.  In this case, if the charges were proved, Dr Grieve would have used
his access to his patients to benefit himself and his company unduly to the prejudice
of the patients, conduct which would fall under the Council’s supervisory powers. The
matter was referred back to the Council for further proceedings.

--- ends ---