THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 968/16

In the matter between:

DR WOUTER BASSON

APPELLANT

and

PROF J F M HUGO

FIRST RESPONDENT

PROF R E MHLANGA

SECOND RESPONDENT

HEALTH PROFESSIONS COUNCIL

OF SOUTH AFRICA

THIRD RESPONDENT

Neutral citation: Basson v Hugo & others (968/16) [2017] ZASCA 01 (17
January 2018)

Coram:
Shongwe AP, Seriti and Swain JJA and Mokgohloa and Schippers
AJJA

Heard:
24 November 2017

Delivered: 17 January 2018

Summary: Promotion of Administrative Justice Act 3 of 2000, s 7(2) – failure
to exhaust internal remedy prior to instituting judicial review proceedings –
whether this is an appropriate case to grant exemption in terms of s 7(2)(c)
where administrator alleged to be biased or reasonably suspected of bias – court
finding that internal remedy ineffective and inadequate.

ORDER

On appeal from: The Gauteng Division, Pretoria (Unterhalter AJ sitting as
court of first instance):
1 The appeal is upheld and the order of the court a quo is set aside.
2 The third respondent is ordered to pay the costs of the proceedings before the
court a quo and the costs of appeal, such costs to include the costs of two
counsel.
3 The case is remitted to the Gauteng Division of the High Court, Pretoria, to
decide the review application.

JUDGMENT

Shongwe AP (Seriti JA and Mokgohloa and Schippers AJJA concurring)

[1] The issue in this appeal is whether the appellant was obliged to exhaust
an internal remedy as contemplated in s 7(2) of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA), before launching an application to review and set
aside a decision taken on 13 March 2015 by the third respondent, the Health
Professions Council of South Africa (the Council), in terms of which an
application for the recusal of the second and third respondents on the ground of
bias, was refused (the impugned decision).

[2] The matter arises from a disciplinary inquiry which the Council launched
against the appellant, Dr Wouter Basson, under the Health Professions Act 56 of
1974 (the Act). The appellant is a cardiologist practising in the Western Cape.
In 2007 he was charged with unprofessional conduct before a professional

conduct committee (the Committee) constituted in terms of 15(2)(f) of the Act,
comprising Professor J F M Hugo as Chairperson, Professor R E Mhlanga and
the late Judge Eloff, then retired. The conduct in question related to the
appellant‟s participation in chemical and biological warfare research during his
employment with the South African Defence Force in the 1980s.

[3] In December 2013 the Committee found that the appellant had breached
established ethical rules of the medical profession and he was found guilty of
unprofessional conduct on four of the charges brought against him. In January
2015 the pro forma prosecutor called Mr Martin Heywood, a director of a law
clinic, as a witness in aggravation of sanction. Mr Heywood submitted two
petitions for the removal of the appellant‟s name from the Register of Medical
Practitioners (the register), by registered health professionals and organisations
working in the fields of human rights and law. One of these petitions was
supported by various organisations, including the South African Medical
Association (SAMA) and the Rural Doctors Association of South Africa
(RUDASA).

[4] At the hearing in January 2015 the appellant‟s counsel asked the
Committee whether the first and second respondents were members of any of
the organisations that had endorsed the petitions calling for his removal from
the register. The Committee noted the request and ruled that the hearing
proceed, without furnishing the information requested. The appellant‟s counsel
then asked the Committee for an adjournment to consider his position, which
was granted. On resumption of the proceedings, the appellant‟s counsel
requested an adjournment till the next morning to take instructions to approach
the high court for an order compelling the respondents to furnish the
information. That request was refused and the appellant and his counsel excused
themselves from the disciplinary inquiry.

[5] The Committee proceeded forthwith to hear evidence by Professor Marc
Blockman, the Chair of the Human Research Ethics Committee at the
University of Cape Town, in aggravation of the penalty to be imposed.
Professor Blockman expressed the opinion that despite having been found guilty
of unprofessional conduct, the appellant had shown no accountability, no
responsibility and was a disgrace to the profession. He then referred to a petition
signed by various health professionals who called on the Council to remove the
appellant‟s name from the register.

[6] In the interim, the appellant approached the high court urgently and
obtained an order prohibiting the respondents from proceeding with the
disciplinary inquiry, pending the finalisation of an application compelling them
to furnish information relating to their membership of the organisations that
supported the petition for his removal from the register. In an explanatory
affidavit in that application, Professor Hugo confirmed that he is a member of
SAMA and was associated with RUDASA, and that he did not have any
interaction with RUDASA for three years prior to January 2015. He stated that
he did not participate in the processes that led to the relevant petitions; and that
Professor Mhlanga advised him that he is not a member of any of the
organisations in question.

[7] In March 2015 the appellant applied to the Committee for the recusal of
Professors Hugo and Mhlanga, on the grounds that Professor Hugo has an
interest in the subject matter of the inquiry; and actual or a reasonable
apprehension of bias on the part of both these members of the Committee. The
application for recusal was refused by the Committee. The appellant then
approached the court a quo to review and set aside the impugned decision.

[8] The review application was dismissed and the appellant was directed to
exhaust his internal remedy of appeal before an ad hoc appeal committee in
terms of the Act, „should he wish to do so‟. The court a quo concluded that the
review application was premature as the appellant had a duty to exhaust an
internal remedy before approaching the court to review and set aside the
impugned decision. It found that the appellant had not complied with such duty;
that he failed to show exceptional circumstances in terms of s 7(2)(c) of PAJA;
and that it was not in the interests of justice to exempt him from the obligation
to exhaust an internal remedy. That remedy, the court a quo held, is an appeal to
an ad hoc appeal committee established under s 10(2) of the Act, which in terms
of s 10(3), has the power to vary, confirm or set aside a finding of the
Committee, or to refer the matter back to the Committee with such instructions
as it may deem fit.

[9] Before us the appellant contended that in terms of s 42(1A) of the Act, a
penalty imposed by a committee remains effective until the appeal is finalised.
This situation, so the appellant argued, is prejudicial to him, in that such penalty
would cause irreparable harm to his practice. He further argued that the sanction
would be imposed by the same persons he wanted to have recused.  The
appellant conceded that courts are ordinarily opposed to hearing appeals and
reviews piecemeal, but argued that this was a case where the court a quo should
have exercised its discretion and found exceptional circumstances, and thus
have exempted him from the duty to exhaust the internal remedy.

[10] On the other hand, the third respondent contended that the court a quo
was correct in finding that before applying for judicial review by a high court,
the appellant had to exhaust the internal remedy as envisaged in s 10(3) of the
Act, read together with 8(1) of the Regulations relating to the conduct of
inquiries into alleged unprofessional conduct (GN 765, GG 22584, 24 August

2001),  which sets out the procedure for appeals from the Committee to an
appeal committee.  The third respondent further contended that the appeal
committee would be seized with the whole record of the proceedings of the
Committee as the appellant brought a substantive application for the recusal of
the first and second respondents; therefore the appeal committee would have to
consider the appeal as a normal appeal. It was also contended that the appeal
committee has the power not only to set aside the findings of the committee, but
also the proceedings as a whole. The respondent asked this court to find that the
appellant is not entitled to exhaust his internal appeal remedy for the recusal of
Professors Hugo and Mhlanga, until the entire case has been completed and the
Committee has imposed sanction.

[11] The starting point in determining whether the appellant was obliged to
exhaust the internal remedy in s 10(3) of the Act, is s 7(2) of PAJA. It reads:
„(a) Subject to paragraph (c), no court or tribunal shall review an administrative action in
terms of this Act unless any internal remedy provided for in any other law has first been
exhausted.
(b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any internal
remedy referred to in paragraph (a) has been exhausted, direct that the person concerned must
first exhaust such remedy before instituting proceedings in a court or tribunal for judicial
review in terms of this Act.
(c) A court or tribunal may, in exceptional circumstances and on application by the person
concerned, exempt such person from the obligation to exhaust any internal remedy if the
court or tribunal deems it in the interests of justice.‟

[12] It is settled that the impugned decision constitutes administrative action
as defined in PAJA (SA Veterinary Council & another v Veterinary Defence
Force Association [2003] ZASCA 27; 2003 (4) SA 546 (SCA) para 34).
Therefore, an internal remedy must be exhausted prior to judicial review, unless
the appellant can show exceptional circumstances to exempt him from this

requirement (Koyabe & others v Minister for Home Affairs & others (Lawyers
for Human Rights as amicus curiae) [2009] ZASCA 23; 2010 (4) SA 327 (CC)
para 34; Nichol & another v Registrar of Pension Funds & others [2005]
ZASCA 97; 2008 (1) 383 (SCA) para 15). What constitutes exceptional
circumstances depends on the facts and circumstances of the case and the nature
of the administrative action in issue (Koyabe supra para 39). Factors taken into
account in deciding whether exceptional circumstances exist are whether the
internal remedy is effective, available and adequate. An internal remedy is
effective if it offers a prospect of success, and can be „objectively implemented,
taking into account relevant principles and values of administrative justice
present in the Constitution and our law‟; and available if it can be pursued
„without any obstruction, whether systemic or arising from unwarranted
administrative conduct‟ (Koyabe supra para 44). An internal remedy is adequate
if it is capable of redressing the complaint (Koyabe supra paras 42, 43 and 45).

[13] Section 10 of the Act provides in material part as follows:
„(2) The council shall establish ad hoc appeal committees, each consisting of, as chairperson,
a person with knowledge of the law with at least 10 years‟ relevant experience, not more than
two registered persons drawn from the profession of the registered person in respect of whose
conduct a professional conduct committee of a professional board had held an inquiry, and a
member of the council appointed to represent the community.
(3)  An  appeal committee referred to in subsection (2) shall have the power to vary, confirm
or set aside a finding of a  professional conduct committee established in terms of section
15(5)(f) or to refer the matter back to the  professional conduct committee with such
instructions as it may deem fit.‟

[14] Regulation 8 sets out the appeal procedure. The relevant provisions read:
„(1) The accused or pro forma complainant may appeal to the appeal committee against the
finding and/or penalty of the professional conduct committee to the appeal committee.

(2) The appellant shall inform the registrar by notice within three weeks from the date of the
professional conduct committee‟s decision of his or her intention to appeal against the finding
and/or penalty.
(3) The registrar shall provide the appellant with a copy of a transcript of the proceedings at
the inquiry within one month from the date on which the registrar received a written notice of
appeal.
(4) The appellant shall file six copies of his or her papers setting out the grounds for appeal
and containing heads of argument with the registrar within one month from the date on which
he or she received a copy of the transcript referred to in subregulation (3).
(5) The appeal shall only be heard on the papers referred to in subregulation (4).‟

[15] Section 20 of the Act provides for an appeal to a high court. It reads:
„(1) Any person who is aggrieved by any decision of the council, a professional board or a
disciplinary appeal committee, may appeal to the appropriate High Court against such
decision.‟

[16] The court a quo held that an appeal committee is empowered to consider
the merits of the recusal application and the finding of the Committee to refuse
it, in the light of the following circumstances. The recusal application was made
by way of a formal application; the facts and law relied upon in support of the
application were before the Committee; and the appeal committee would be
assisted by a full record of proceedings of the Committee. If the Committee
came to an incorrect finding and should have found that Professors Hugo and
Mhlanga should have recused themselves, the court reasoned, the appeal
committee, in terms of s 10(3) of the Act, has the power to set aside and correct
the Committee‟s finding.

[17]  The court a quo‟s finding that an appeal committee is empowered to
consider the merits of the recusal application presupposes that the impugned

decision is merely voidable, which is somehow rendered valid as a result of a
subsequent decision by the Committee on sanction, or by an appeal committee.
However, in Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service
[1996] ZASCA 2; 1996 (3) SA 1 (A) at 8J-9B, this court rejected the notion that
a refusal by a judge (in this case an administrator) to recuse himself from
proceedings in respect of which he is reasonably suspected of bias, renders that
decision voidable; and held that the consequence of a failure to recuse renders
the proceedings a nullity. Hefer JA observed:
„The effect of a refusal to do so is clear. Unlike the seemingly controversial status in English
administrative law of the decisions of biased officials (cf Craig Administrative Law 3rd ed at
467-8; Wade „Unlawful Administrative Action: Void or Voidable‟ (1968) 84 LQR 95), firm
and authoritative views have been expressed in South Africa regarding the effect on judicial
proceedings of a Judge‟s refusal to withdraw from the matter from which he should have
recused himself. Without spelling out its actual effect, Centlivres CJ observed in R v Milne
and Erleigh (6) (supra at 6 in fin) that a biased Judge who continues to try a matter after
refusing an application for his recusal thereby “commits … an irregularity in the proceedings
every minute he remains on the bench during the trial of the accused.” ‟

[18] Hefer JA went on to say (at 9C) that the judgment in Council of Review,
South African Defence Force, & others v Mönnig & others 1992 (3) SA 482 (A)
is more explicit. If a presiding officer should have recused himself, proceedings
conducted after dismissal of an application for recusal must be regarded as
never having taken place at all (Mönnig supra at 495A-D). In the instant case,
the appellant‟s complaint was not that the finding of the Committee is an
irregularity committed by an otherwise competent tribunal. Instead, his
complaint was that the Committee lacked competence from the outset, because
of actual or a reasonable apprehension of bias on the part of two of its members.
Stated differently, the appellant alleged that by virtue of its composition, the
Committee could not exercise jurisdiction over him. So, this is not a case where

the Committee wrongly acted within its jurisdiction: the appellant alleged that it
had no jurisdiction from the start. The issue is one of elementary justice.

[19] Therefore, should it be found that Professors Hugo and Mhlanga ought to
have recused themselves, the proceedings before the Committee would be a
nullity (Moch supra at 9G). An appeal under s 10(3) of the Act cannot cure the
lack of jurisdiction, for one cannot appeal against a nullity. And the logical
implication of the nullity of the proceedings at the first stage, is that any
appellate proceedings must suffer the same fate, ie they should also be treated as
void (Moch supra at 9J-10A).

[20] In addition, the appellant is entitled to fairness at every stage of the
disciplinary proceedings. As this court said in Slagment (Pty) Ltd v Building
Construction and Allied Workers’s Union & others [1994] ZASA 108; 1995 (1)
SA 742 (A) at 756:
„The question whether it is possible for an appellate tribunal to correct an administrative
decision which is impeachable on the grounds of unfairness, is discussed by Baxter,
Administrative Law, at 588-9. The learned author states that in the first place, a complainant
is entitled to fairness at all stages of the decision-making process, and he quotes from the
judgment of Megarry J in the English case of Leary v National Union of Vehicle Builders
[1971] Ch 34 at 49:
"If the rules and the law combine to give the member the right to a fair trial and the right of appeal,
why should he be told that he ought to be satisfied with an unjust trial and a fair appeal?" ‟

[21] Further, the appellant claimed a remedy beyond the powers of an appeal
committee: it does not exercise original jurisdiction and cannot hear the matter
de novo, with or without new evidence or information (compare Nichol supra
paras 20-22). Its powers are limited to varying, confirming or setting aside a
finding by the Committee, or remitting a matter to the Committee. An appeal
committee does not have the power to set aside the proceedings before the

Committee. This is underscored by reg 8(1) which confines an appeal to a
finding or penalty of the Committee; and reg 8(5) which provides that an appeal
„shall only be heard on the papers referred to in subregulation (4)‟, ie the
transcript of the proceedings at the inquiry, and an appellant‟s papers
comprising the grounds of appeal and heads of argument. The internal remedy
in s 10(3) of the Act is an appeal in the narrow sense (Tikly & others v Johannes
NO & others 1963 (2) SA 588 (T) at 591F-591A), and thus inadequate.
Professor Hoexter (Cora Hoexter Administrative Law in South Africa 2 ed
(2012) at 388) puts it thus:
„With a narrow appeal, however, the appellate body is confined to the record, which means
that the “taint” of the unfairness is inevitably carried forward to the appellate hearing.‟

[22] For these reasons alone, the court a quo should have found that there were
exceptional circumstances as contemplated in s 7(2)(c) of PAJA, which required
the immediate intervention of the court rather than resort to the internal remedy
under s 10(3) of the Act (Nichol supra para 16). The internal remedy is
ineffective and inadequate: it does not offer a prospect of success and cannot
redress the appellant‟s complaint.

[23] The internal remedy in s 10(3) of the Act is moreover ineffective and
inadequate, because it cannot be implemented in accordance with the relevant
principles and values of administrative justice of the Constitution (Koyabe supra
para 44). In President of the Republic of South Africa & others v South African
Rugby Football Union & others [1999] ZACC 9; 1999 (4) SA 147 (CC) para
28), the Constitutional Court, affirming Mönnig (supra at 491E-F), held that the
recusal right is designed to ensure that a person accused before a court should
have a fair trial; that the right to a fair trial in criminal proceedings has now
been entrenched in s 35(3) of the Constitution; and that s 34, which guarantees
the right to have a dispute decided „in a fair public hearing before a court or,

where appropriate, another independent and impartial tribunal or forum‟,
applies to other proceedings.

[24] The Act and s 10(3) in particular, must be construed in a way that gives
effect to the spirit, purport and objects of the Bill of Rights (s 39(2) of the
Constitution), one of which is s 34 of the Constitution. The common law, which
is „law‟ within the meaning of s 8(1) of the Constitution, is also subject to s 34
and in terms of s 39(2) must be developed in accordance with its provisions
(Sarfu supra para 28).

[25] As was held in Sarfu (supra para 48), an impartial Judge (or other
presiding officer) is a fundamental prerequisite for a fair trial and a presiding
officer should not hesitate to recuse herself or himself where a litigant has
reasonable grounds to apprehend that the presiding officer, for whatever reason,
was not or will not be impartial. Impartiality, the Constitutional Court has said,
„is the keystone of a civilised system of adjudication‟; and an absolute
requirement in every judicial proceeding and proceedings before other tribunals
(see also South African Commercial Catering & Allied Workers Union & others
v Irvin & Johnson Ltd (Seafoods Division Fish Processing) [2000] ZACC 10;
2000 (3) SA 705 (CC) para 13). The reason is that:
„A cornerstone of any fair and just legal system is the impartial adjudication of disputes
which come before courts and other tribunals. . . . Nothing is more likely to impair
confidence in such proceedings, whether on the part of litigants or the general public, than
actual bias or the appearance of bias in the official or officials who have the power to
adjudicate on disputes‟ (Sarfu supra para 35; Saccawu supra para 13).

[26] The rule against bias is thus firmly anchored to public confidence in the
legal system, and extends to non-judicial decision-makers such as tribunals.

And the rule reflects the fundamental principle of our Constitution that courts
and tribunals must not only be independent and impartial, but must be seen to
be such; and the requirement of impartiality is also implicit, if not explicit in s
34 of the Constitution (Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC) paras 28
and 31).

[27] The determination of what constitutes „exceptional circumstances‟ within
the meaning of s 7(2)(c) of PAJA, is necessarily informed by the nature of the
complaint for which judicial relief is sought (Koyabe supra para 39). In the
present case the complaint is actual or a reasonable apprehension of bias, raised
directly and promptly at first instance, ie before the Committee. The rule against
bias is entrenched in the Constitution, which places a high premium on the
substantive enjoyment of rights (Koyabe supra para 44). Section 38 of the
Constitution gives the appellant the right to approach a competent court if a
right in the Bill of Rights (s 34) has been infringed or threatened, and the court
may grant appropriate relief. In ruling against the appellant, the Committee has
set out its position and there is a proper record of the proceedings before it. If
the relevant members of the Committee should have recused themselves, the
proceedings before it would be null and void; and any appeal to an appeal
committee would suffer the same fate. The pursuit of an internal remedy would
therefore be futile.

[28] These factors, in my view, constitute exceptional circumstances which
render judicial intervention in the interests of justice, and which exempt the
appellant from the obligation to exhaust the remedy under s 10(3) of the Act.

[29] In the result, I make the following order:
1 The appeal is upheld and the order of the court a quo is set aside.

2 The third respondent is ordered to pay the costs of the proceedings before the
court a quo and the costs of appeal, such costs to include the costs of two
counsel.
3 The case is remitted to the Gauteng Division of the High Court, Pretoria, to
decide the review application.

_______________________

J B Z Shongwe
Acting President of
the
Supreme Court of   Appeal

Swain JA:

[30] I have had the benefit of reading the judgment of my colleague Shongwe
AP and agree with the outcome of the appeal and the order granted. I however
reach the same conclusion by a route which in certain important respects differs
from that of my colleague.

[31] The issues raised by the third respondent before the court a quo, which
are relevant to the determination of the appeal, were as follows;
(a) The appellant was required to exhaust the internal remedy of appeal under
the Health Professions Act 56 of 1974, (the Act) before approaching the court a
quo.

(b) There were no exceptional circumstances that permitted the appellant to
have recourse to the court a quo, before exhausting this internal remedy.

[32] The preliminary point taken by the third respondent, concerning the duty
to exhaust any internal remedy is found in the provisions of ss 7 (2)(a) and (c)
of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) which provide
as follows;

„(2)(a) Subject to paragraph (c), no court or tribunal shall review an administrative action in
terms of this Act unless any internal remedy provided for in any other law has first been
exhausted.
(c) A court or tribunal may, in exceptional circumstances and on application by the person
concerned, exempt such person from the obligation to exhaust any internal remedy if the
court or tribunal deems it in the interest of justice.‟

[33]   The court a quo defined the central issue for determination as whether the
appellant, „may appeal the refusal by the committee to uphold his application
for the recusal of Professors Hugo and Mhlanga to an ad hoc appeal committee
established in terms of section 10 (2) of the Act?‟

[34] Section 10(3) of the Act makes provision for the powers of an appeal
committee established in terms of s 10 (2), in the following terms;
„(3) A disciplinary appeal committee referred to in subsection (2) shall have the power to
vary, confirm or set aside a finding of a disciplinary committee established in terms of
subsection (1) or to refer the matter back to the disciplinary committee with such instructions
as it may deem fit.‟

[35]   In dealing with the issue as to whether the appeal to the appeal committee
constituted an effective internal remedy for the purposes of the PAJA, the court
a quo noted that the power given to the appeal committee to vary, confirm or set
aside a finding, or to refer the matter back to the professional conduct
committee, was a formulation of the powers of an appellate administrative body
found in many statutes. The formulation however did not resolve perennial
questions of statutory interpretation, namely whether the appellate body enjoyed
review powers as well as an appellate jurisdiction.

[36]   In addition, the court a quo noted that the issue was whether the appellate
body entertained appeals in the wide sense, or whether the appeal was an
ordinary appeal limited to the evidence and the record upon which the original
decision was rendered. The court a quo remarked that these matters often
occasioned considerable difficulty where, as here, the legislature had not
expressly stated the scope of appellate jurisdiction.

[37]   The court a quo however concluded that such interpretational intricacies
could be avoided in the present case.  It reasoned that even if it was assumed in
favour of the appellant that the committee did not enjoy review powers and no
appeal jurisdiction in the wide sense, that did not mean that the appeal
committee did not enjoy a jurisdiction to consider an appeal in respect of the
committee‟s decision, to dismiss the appellant‟s recusal application.  This was
because the application was made formally, with the result that the facts and law
relied upon in support of the application, served before the committee. The
committee was therefore entitled to consider the merits of the recusal
application and conclude that it should be refused.  If the committee had erred
and should have upheld the application for refusal, then the appeal committee
enjoyed the power to set aside this finding of the committee.

[38] According to the court a quo this was not a case in which there were
irregularities that did not appear from the record. The recusal application was
argued before the committee, considered by it and a decision rendered on the
merits. On this basis the correctness of the committee‟s finding on the recusal
application could be considered by the appeal committee.  No power of review
was required to do so because the question was not whether the committee‟s
finding was lawful, but whether it was correct. In addition the appeal committee
did not need to decide the recusal application de novo in order to decide
whether the finding of the committee was correct. No wider appeal was
implicated in order to determine the merits of the recusal finding.

[39] The court a quo accordingly decided that the appellant was afforded a
meaningful right of appeal under the Act, to have the correctness of the recusal
finding considered. The appellant therefore enjoyed an internal remedy of
appeal under the Act and had a duty to exhaust this remedy in terms of the
PAJA, unless exempted from doing so.

[40] For reasons which will become apparent, the court a quo erred in
classifying the claim of bias as an issue which was amenable to an appellate
jurisdiction by the appeal committee. To reduce the enquiry to whether the
decision by the committee in refusing the application for recusal was right or
wrong, ignores the juridical nature of a claim of bias as well as the legal effect
upon the proceedings of the committee, if the claim is upheld.

[41] The rule against bias is foundational to the fundamental principle of the
Constitution that courts, as well as tribunals and forums, must not only be

independent and impartial, but must be seen to be so. The constitutional
imperative of a fair public hearing is negated by the presence of bias, or a
reasonable apprehension of bias, on the part of a judicial or presiding officer.
The vital importance of this constitutional principle was described in Bernert v
ABSA Bank Ltd 2011(3) SA 92 (CC) paras 28 and 31 in the following terms;
„It is, by now, axiomatic that a judicial officer who sits on a case in which he or she should
not be sitting, because seen objectively, the judicial officer is either actually biased or there
exists a reasonable apprehension that the judicial officer might be biased, acts in a manner
that is inconsistent with the Constitution…The apprehension of bias principle reflects the
fundamental principle of our Constitution that courts must be independent and impartial. And
fundamental to our judicial system is that courts must not only be independent and impartial,
but they must be seen to be independent and impartial…
…And the requirement of impartiality is also implicit, if not explicit, in s 34 of the
Constitution which guarantees the right to have disputes decided "in a fair public hearing
before a court or, where appropriate, another independent and impartial tribunal or forum…”‟
The appellant accordingly possesses a constitutional right to an independent and
impartial hearing before the committee, whose conduct assessed objectively
should not exhibit a reasonable apprehension of bias, towards the appellant.

[42] In the pre-constitutional era this Court in Council of Review, South
African Defence Force & others v Mönnig 1992 (3) SA 482 (A) at 491 stated
that;
„The recusal right is derived from one of a number of rules of natural justice designed to
ensure that a person accused before a court of law should have a fair trial. Generally speaking
such rules, which are part of our common law, must be observed unless the Legislature has
by competent legislation, either expressly or by clear implication, otherwise decreed‟.
The legal effect upon proceedings, of a finding of bias on the part of the
presiding officer, was described at page 495 in the following terms;

„What must be remembered is that in the present case we are concerned with the proceedings
of what is in substance a court of law. It is a court which admittedly is composed of laymen,
but one which in all other respects has the characteristics of a court of law and which enjoys a
wide criminal jurisdiction. And, as I have already observed, the propriety of its proceedings
should be judged by the normal standards pertaining to a court of law. If, as I have held, the
court martial should have recused itself, it means that the trial which it conducted after the
application for recusal had been dismissed should never have taken place at all. What
occurred was a nullity. It was not, as in many of the cases quoted to us, an irregularity or
series of irregularities committed by an otherwise competent tribunal. It was a tribunal that
lacked competence from the start. The irregularity committed by proceeding with the trial
was fundamental and irreparable. Accordingly, there was no basis upon which the council of
review could validate what had gone before. The only way the council of review could have
cured the proceedings before the court martial would have been to set them aside.‟
(Emphasis added)
The fundamental right to a fair and impartial hearing is accordingly guaranteed,
because a denial of the right results in the invalidity of the hearing and an order
setting aside the proceedings.  Consequently, if it is subsequently found that the
first and second respondents should have recused themselves, the hearing before
the committee will be a nullity and the proceedings will have to be set aside.

[43] It is against this background that the provisions of ss 7(2)(a) and (c) of
the PAJA must be applied. A requirement that the administrative remedy be
available, effective and adequate was enunciated in Koyabe & others v Minister
for Home Affairs & others (Lawyers for Human Rights as Amicus Curiae) 2010
(4) SA (CC) 327 paras 44 and 45 in the following terms;
„In a constitutional democracy like ours, where the substantive enjoyment of rights has a high
premium, it is important that any existing administrative remedy be an effective one. A
remedy will be effective if it is objectively implemented, taking into account the relevant
principles and values of administrative justice present in the Constitution and our law. An
internal remedy must also be readily available and it must be possible to pursue without any
obstruction, whether systemic or arising from unwarranted administrative conduct. Factors

such as these will be taken into account when a court determines whether exceptional
circumstances exist, making it in the interests of justice to intervene.‟
Thus, as the international jurisprudence illustrates, judicial enforcement of the duty to
exhaust internal remedies, in giving content to the “exceptional circumstances” exemption,
must consider the availability, effectiveness and adequacy of the existing internal remedies.‟
(Emphasis added)
It is therefore apparent that the enquiry whether an internal remedy is available,
effective and adequate, and the enquiry whether exceptional circumstances are
present justifying exemption from the duty to exhaust an internal remedy in the
interest of justice, are not disparate enquiries.

[44]   That the presence of exceptional circumstances may be established by the
absence of an effective and adequate internal remedy, is illustrated by the
decision of this court in Nichol & another v Registrar of Pension Funds &
others 2008 (1) SA 383 (SCA) para 18, where the following was stated;
„As “exceptional circumstances” which might justify an exemption in terms of s 7 (2) (c)
would exist where the available internal remedy would not be able to provide the applicant
with effective redress for his or her complaint…‟

[45] The meaning of the term „exceptional circumstances‟ was described in
Nichol para16, as follows;
„Counsel for the registrar and the FSB submitted that, while there is no definition of
“exceptional circumstances” in PAJA, these must be circumstances that are out of the
ordinary and that render it inappropriate for the court to require the s 7(2)(c) applicant first to
pursue the available internal remedies. The circumstances must in other words be such as to
require the immediate intervention of the courts rather than resort to the applicable internal
remedy. I agree with this contention. In the words of Sir John Donaldson MR in R v
Secretary of State for the Home Department, Ex Parte Swati1:

1 [1986] 1 All ER 717 (CA) at 724 a-b.

“By definition, exceptional circumstances defy definition, but, where Parliament provides an
appeal procedure, judicial review will have no place unless the applicant can distinguish his
case from the type of case for which the appeal procedure was provided.”‟
In other words, where an internal remedy in the form of an appeal procedure
does not provide the applicant with effective and adequate redress for the
complaint, exceptional circumstances will be present which will justify
exemption from the obligation to exhaust this internal remedy in the interest of
justice.

[46]   The enquiry is whether the court a quo correctly concluded that the power
of the appeal committee, in terms of s 10 (3) of the Act „to vary, confirm or
aside a finding‟ of the committee, provided an available, effective and adequate
remedy to protect the appellant‟s constitutional right to a fair and impartial
hearing, before the committee. Implicit in the finding by the court a quo that the
appellant enjoys an effective right of appeal to the appeal committee, to
challenge the refusal by the first and second respondents to recuse themselves,
is that the appellant must at this stage submit himself to the jurisdiction of the
committee for the imposition of a penalty, which may include erasure or
suspension from his medical practice, before exercising his right of appeal to
the appeal committee.

[47] In Kayobe, the Constitutional Court at footnote 41 in dealing with
possible exceptions to the duty to exhaust an internal remedy, referred to the
decision of Justice Blackmun in McCarthy v Madigan 503 US 140 (1992) at
144-148, in the following terms;
„Justice Blackmun further recognized exceptions to the exhaustion requirement, where the
interests of the individual in obtaining judicial intervention outweigh the institutional interest
in exhaustion: (a) where it may prejudice subsequent court action (for example, an

unreasonable or indefinite time frame for administrative action); (b) where there is doubt
whether the agency can grant effective relief; and (c) where the administrative body is biased
or has predetermined the issue.‟
These exceptions may also be regarded as examples of the absence of an
effective and adequate internal remedy for the particular complaint.

[48] With regard to the first exception, Justice Blackmun also said the
following at 147;
„Even where the administrative decision-making schedule is otherwise reasonable and
definite, a particular plaintiff may suffer irreparable harm if unable to secure immediate
judicial consideration of his claim.‟
This is consonant with what was stated in Nichol, namely that the circumstances
must require the immediate intervention of the courts, rather than resort to the
applicable internal remedy.

[49] The court a quo dealt with the issue of whether the appellant would suffer
irreparable harm, if the penalty imposed by the committee was one of erasure or
suspension from his medical practice, in the context of whether the appellant
had established the presence of exceptional circumstances. The issue is however
of equal relevance in determining whether the right of appeal to the appeal
committee, is an effective and adequate internal remedy.

[50] The date upon which a „decision‟ by the committee or appeal committee
takes effect, is dealt with in ss10 (4) and (5) of the Act;
„(4) A decision of a disciplinary committee, unless appealed against, shall be of force and
effect from the date determined by the disciplinary committee.

(5) Where a matter has been considered by a disciplinary appeal committee the decision of
the disciplinary appeal committee, unless appealed against, shall be of force and effect from
the date determined by the disciplinary appeal committee.‟
The lodging of an appeal therefore precludes the exercise of a discretion by the
committee or the appeal committee, as the case may be, to determine the date
when a „decision‟ will be of force and effect. This is consistent with the
common law rule that generally the execution of a judgement is automatically
suspended upon the noting of an appeal2. However, in the absence of an appeal,
a committee or an appeal committee is entitled to determine the date from
which the „decision‟ will be of force and effect.

[51] Section 42 (1A) of the Act however provides that;
„(1A) If an appeal is lodged against a penalty or erasure or suspension from practice, such
penalty shall remain effective until the appeal is heard.‟
Lodging an appeal against a penalty therefore has no effect upon the operation
of the penalty which remains effective pending the outcome of the appeal.

[52] A clear distinction is drawn in these sections between the consequences
which follow upon an appeal being lodged against the imposition of a penalty,
or erasure or suspension from practice (hereafter referred to as a „penalty‟), and
an appeal being lodged against a „decision‟. If an appeal is lodged against the
decision as well as the penalty imposed, the operation of the decision will be
suspended, but not the operation of the penalty. The justification for this
distinction must be to protect the public from the conduct of the medical
practitioner concerned pending the outcome of any appeal, particularly where
the penalty is one of erasure or suspension from the Register of Medical
Practitioners.

2  Reid & another v Godart & another 1938 AD 511 at 513.

[53] The court a quo however erroneously concluded that although s 42 (1 A)
of the Act provided that a penalty would remain effective until an appeal was
finalised, this provision did not determine the date from which the penalty
would take effect. It found that ss 10(4) and (5) of the Act permitted a
committee, or appeal committee, to determine the date when its „decision‟,
which included its decision as to the penalty to be imposed, would be of force
and effect. This interpretation disregards the clear distinction drawn between a
„decision‟ and a „penalty‟ in the Act and renders superfluous the stipulation in s
42(1A) that the penalty „shall remain effective until the appeal is heard.‟

[54] The court a quo therefore erred in deciding that the date when a penalty
would take effect remained within the discretionary power of the committee or
appeal committee and that any harm the appellant would suffer would be
mitigated if he was able to persuade the committee or the appeal committee, as
the case may be, that the penalty should not commence until his appeals or
review were determined. In addition, I disagree with the view of the court a quo
that a „formidable hurdle‟ to finding that exceptional circumstances were
present, was that the statutory scheme under the Act, strikes a balance between
rights of appeal and the need to protect the public from a medical practitioner
found guilty of serious misconduct. The court a quo noted that although this
might work harshly upon a professional person who may suffer a penalty
destructive of his professional life, and yet be vindicated on appeal, that was
what the legislature had determined and no constitutional challenge to this
regime had been brought.

[55] This reasoning however loses sight of the real issue, which is whether the
appellant may suffer irreparable harm if he is unable to secure immediate

judicial consideration of his claim of bias, on the part of the committee. That the
legislature may have intended in the normal course of events, harsh
consequences for a professional person pending the outcome of an appeal,
cannot justify denial of the immediate consideration of the appellant's claim of
bias.

[56] I agree with the submission made on behalf of the appellant, that in
addition, any decision to impose a penalty of erasure or suspension will be taken
by persons who it might subsequently be determined, should have recused
themselves. The appellant will therefore suffer the exercise of drastic powers by
persons, whose decisions may ultimately be found to be a nullity, after a hearing
that should never have taken place. For these reasons, the immediate judicial
consideration of the appellant‟s claim for review would be justified. The right of
appeal to the appeal committee does not constitute an adequate and effective
internal remedy in this regard.

[57] The second exception to the duty to exhaust an internal remedy referred
to in Koyabe, is where there is doubt whether the administrative agency can
grant effective relief. In this regard Justice Blackmun added the following at
147-148;
„For example, an agency, as a preliminary matter, may be unable to consider whether to grant
relief because it lacks institutional competence to resolve the particular type of issue
presented, such as the constitutionality of a statute… Alternatively, an agency may be
competent to adjudicate the issue presented, but still lack authority to grant the type of relief
requested.‟
Although couched in the context of an exception to the duty to exhaust an
internal remedy, a lack of authority on the part of the administrative agency to

grant the type of relief requested, would also constitute evidence of the absence
of an effective and adequate internal remedy.

[58] The power the appeal committee possesses in terms of s 10 (3) of the Act
to, „vary, confirm or set aside a finding of a professional conduct committee…
or to refer the matter back to the professional conduct committee with such
instructions as it may deem fit,‟ would entitle it to set aside the „finding‟ by the
committee that its members were not obliged to recuse themselves from the
hearing. However, this would not include the power to set aside the proceedings
before the committee, because the power of the appeal committee is restricted to
the variation, confirmation or setting aside of a „finding‟ of the committee.

[59]   In Mönnig it was made clear that the irregularity in the proceedings, being
the failure of the court martial to recuse itself, could only be cured by setting the
proceedings aside. This is necessary because a finding of bias permeates and
invalidates every aspect of the proceedings and not simply their outcome. I
therefore disagree with the submission of counsel for the third respondent that if
the appeal committee upheld the claim of bias, it could legitimize the
proceedings simply by setting aside the finding of guilt.

[60] There is a further basis upon which the appeal committee would be
unable to grant the necessary relief. The decision taken by the committee as to
the guilt of the appellant constitutes administrative action within the meaning of
s 33 of the Constitution, read with item 23 (2)(b) of Schedule 6 to the
Constitution, in accordance with the decision in SA Veterinary Council &
another v Veterinary Defence Force Association 2003 (4) SA 546 (SCA) para
34. In terms of the decision in Oudekraal Estates (Pty) Ltd v City of Cape Town

& others 2004 (6) SA 222 para 26, until this decision of the committee „is set
aside by a court in proceedings for judicial review it exists in fact and it has
legal consequences that cannot simply be overlooked.‟ Even if it is assumed that
the appeal committee possesses a review jurisdiction to vary, confirm or set
aside the committee's finding of guilt, this would not include the power to set
aside the proceedings.

[61] The appellant is therefore able to distinguish his case from the type of
case for which the appeal procedure was provided. This procedure does not
provide the appellant with effective redress for his complaint. Put differently,
the appeal committee is not competent to adjudicate the issue of bias because it
lacks the necessary authority to grant the type of relief requested, namely setting
aside the proceedings on the ground that they are a nullity.

[62]    The third exception from the duty to exhaust internal remedies referred to
in Koyabe, is bias on the part of the administrative body. The vital importance
of an absence of bias in determining whether an internal remedy is effective,
was referred to in Koyabe para 44, as follows;
„A remedy will be effective if it is objectively implemented, taking into account the relevant
principles and values of administrative justice present in the Constitution and our law.‟
(Emphasis added)
In the present case the allegation of bias, or the reasonable apprehension of bias,
lies against the members of the committee and not the appeal committee, for it
is the members of the committee who must still impose an appropriate penalty.

[63]   To summarize, the internal remedy of an appeal to the appeal committee
does not provide an available, effective and adequate remedy to protect the

appellant‟s constitutional right to a fair and impartial hearing before the
committee, on the following grounds. The appellant may suffer irreparable harm
if he is unable to secure immediate judicial consideration of his claim of bias on
the part of the committee. In addition, the appeal committee is not competent to
adjudicate the issue of bias because it lacks the necessary authority to grant the
type of relief requested, namely setting aside the proceedings on the ground that
they are a nullity. Finally, the internal remedy cannot be effective or adequate if
it will not be objectively implemented without bias, or the reasonable
apprehension of bias.

[64]   Because these grounds also justify a finding that the appellant should be
exempted from the obligation to exhaust the internal remedy of an appeal
because of the presence of exceptional circumstances, it becomes unnecessary
to consider the reasons why the court a quo concluded that no exceptional
circumstances were present.

[65] The allegation of bias, or the reasonable apprehension of bias by the
appellant on the part of the committee, has to be assessed in accordance with the
appropriate standard of proof to be applied by a court in deciding whether to
grant, or refuse leave to apply for judicial review. This was described in R v
Secretary of State for the Home Department, ex parte Swati [1986] 1 All ER
717 at 723, by Sir John Donaldson MR in the following terms;
„Even if the matter had stopped there, I would have been minded to refuse leave to apply on
the grounds that an applicant must show more than that it is not impossible that grounds for
judicial review exist. To say that he must show a prima facie case that such grounds do in fact
exist may be putting it too high, but he must at least show that it is a real, as opposed to a
theoretical, possibility. In other words, he must have an arguable case.‟

[66] In my view, the appellant has demonstrated an arguable case for leave to
be granted to apply for judicial review, to consider the committee‟s decision to
refuse the appellant‟s application for recusal.

________________
K G B Swain
Judge of Appeal

APPEARANCES

For Appellant:
J G Cilliers SC (with him M M W Van Zyl SC and
W W Coetzee)

Instructed by:

Geyser & Coetzee Attorneys, Centurion
Hill McHardy & Herbst Incorporated, Bloemfontein

For Respondent:
S Joubert SC (with him L Kutumela)

Instructed by:

Gildenhuys Malatji Incorporated, Pretoria
Honey & Partners, Bloemfontein

SUPREME COURT OF APPEAL SOUTH AFRICA

MEDIA SUMMARY - JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM
The Registrar, Supreme Court of Appeal

DATE
17 January 2018

STATUS
Immediate

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

Basson v Hugo & others (968/16) [2017] ZASCA 01 (17 January 2018)

Today, the Supreme Court of Appeal (SCA) upheld an appeal brought by the appellant, Dr Wouter
Basson, against a judgment of the Gauteng Division, Pretoria (court a quo)(Unterhalter AJ). The issue
at the nub of the appeal concerned the question as to whether the appellant was obliged to exhaust
an internal remedy as contemplated in s 7(2) of the Promotion of Administrative Justice Act 3 of
2000 (PAJA), before launching an application to review and set aside a decision taken on 13 March
2015 by the third respondent, the Health Professions Council of South Africa (the Council), in terms
of which an application for the recusal of the second and third respondents on the ground of bias,
was refused.
The dispute between the parties which gave rise to the appeal emanates from the following factual
background. The appellant is a qualified medical practitioner, specialising in cardiology. In 2007 the
Council launched a disciplinary inquiry against the appellant alleging that he had engaged in
unprofessional conduct. The conduct in question related to the appellant’s participation in chemical
and biological warfare research during his employment with the South African Defence Force in the
1980s. As a result, the committee was appointed to inquire into the charges of professional
misconduct against the appellant.
The inquiry proceeded against the appellant and in December 2013, he was found guilty of
unprofessional conduct on four of the charges brought against him. In aggravation of the sanction,
Mr Martin Heywood was called as a witness to testify on behalf of various civil society organisations.
Mr Heywood’s testimony aimed at convincing the committee that the appellant should be struck off
the Register of Medical Practitioners (the register) through petitions that were signed by a number
of civil society organisations. During the course of the proceedings, it transpired that Professors

Hugo and Mhlanga were members of the South African Medical Association (SAMA), which
organisation is listed as part of the organisations that supported the petition. Unhappy about their
membership and perceived bias, the appellant brought an application for their recusal to the
committee on the grounds that he would not have a fair inquiry. The application was refused. The
appellant then approached the court a quo with an application to review the decision to refuse the
recusal application.
In the court a quo, the review application was dismissed and the appellant was directed to exhaust
his internal remedy of appeal before an ad hoc appeal committee in terms of the Health Professions
Act 56 of 1974 (the Act), ‘should he wish to do so’. The court a quo concluded that the review
application was premature as the appellant had a duty to exhaust any internal remedy before
approaching the court with a review application. It found that the appellant had not complied with
such duty and he failed to show exceptional circumstances in terms of s 7(2)(c) of PAJA, and also
upon a consideration of the interests of justice, justifying the court to exempt him from complying
with exhausting any internal remedy.
The court a quo further held that an appeal committee is empowered to consider the merits of the
recusal application and the finding of the Committee to refuse it, in the light of the following
circumstances. The recusal application was made by way of a formal application; the facts and law
relied upon in support of the application were before the Committee; and the appeal committee
would be assisted by a full record of proceedings of the Committee. If the Committee came to an
incorrect finding and should have found that Professors Hugo and Mhlanga should have recused
themselves, the court reasoned, the appeal committee, in terms of s 10(3) of the Act, has the power
to set aside and correct the Committee’s finding.
On appeal, the SCA held that the court a quo’s finding that an appeal committee is empowered to
consider the merits of the recusal application presupposes that the impugned decision is merely
voidable, which is somehow rendered valid as a result of a subsequent decision by the Committee
on sanction, or by an appeal committee. However, the SCA stated, the consequence of a failure to
recuse renders the proceedings a nullity. Therefore, if a presiding officer should have recused
himself, proceedings conducted after dismissal of an application for recusal must be regarded as
never having taken place at all. An appeal under s 10(3) of the Act cannot cure the lack of
jurisdiction, for one cannot appeal against a nullity. And the logical implication of the nullity of the
proceedings at the first stage is that any appellate proceedings must suffer the same fate, ie they
should also be treated as void.
Furthermore, the SCA considered that the appellant claimed a remedy beyond the powers of an
appeal committee: it does not exercise original jurisdiction and cannot hear the matter de novo,
with or without new evidence or information. Its powers are limited to varying, confirming or setting
aside a finding by the Committee, or remitting a matter to the Committee. An appeal committee
does not have the power to set aside the proceedings before the Committee. This is underscored by
reg 8(1) of the Regulations relating to the conduct of inquiries into alleged unprofessional conduct,
which confines an appeal to a finding or penalty of the Committee; and reg 8(5) which provides that
an appeal ‘shall only be heard on the papers referred to in sub regulation (4)’, ie the transcript of the
proceedings at the inquiry, and an appellant’s papers comprising the grounds of appeal and heads of

argument. The internal remedy in s 10(3) of the Act is an appeal in the narrow sense and thus
inadequate.
For these reasons alone, the SCA concluded that the court a quo should have found that there were
exceptional circumstances as contemplated in s 7(2)(c) of PAJA, which required the immediate
intervention of the court rather than resort to the internal remedy under s 10(3) of the Act. The
internal remedy is ineffective and inadequate: it does not offer a prospect of success and cannot
redress the appellant’s complaint.
As a result, the appeal was upheld and the matter remitted to the Gauteng Division of the High
Court, Pretoria, to decide the review application.

---ends---