THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 786/2010

In the matter between:

LYNETTE MARY ROUX

Appellant

and

HEALTH PROFESSIONS COUNCIL
OF SOUTH AFRICA

First Respondent

OLIVER MICHAEL POWELL

Second Respondent

Neutral citation:  Roux v Health Professions Council of SA (786/2010)
[2011] ZASCA 135 (21 September 2011)

Coram:
Navsa, Lewis, Ponnan, Mhlantla and Malan JJA
Heard:
17 August 2011
Delivered: 21 September 2011

Summary: Health Professions Act 56 of 1974 and regulations ─
interpretation and application of provisions dealing with disciplinary
inquiries ─ principle of legality ─ council obliged to act in
accordance with its statutory powers ─ decision of pro forma
complainant to add additional charge not sanctioned by Health
Professions Council and not sourced in law ─ additional charge set
aside.

___________________________________________________________

ORDER
___________________________________________________________

On appeal from: North Gauteng High Court, Pretoria (Tuchten J sitting
as court of first instance):

The appeal is upheld with costs.
The order of the court below is set aside and replaced with the
following:
'(a)
Count 1 of the charge sheet dated 4 September 2009 is set
aside.
(b)
The first respondent is ordered to hold an inquiry into the
appellant's alleged misconduct solely in respect of Count 2,
within two months of the date of this judgment.
(c)
The first and second respondents are ordered jointly and
severally, the one paying the other to be absolved, to pay the
costs of the application.'

___________________________________________________________

JUDGMENT

MHLANTLA JA (NAVSA, LEWIS, PONNAN and MALAN JJA)
concurring):

[1] This appeal, with leave of the court below, turns on the
interpretation and application of the provisions of the Health Professions
Act 56 of 1974 dealing with disciplinary enquiries. It also implicates the
regulations relating to the conduct of inquiries into alleged unprofessional

conduct, promulgated in Government Notice 765 dated 24 August 2001
and published in Government Gazette 22584, made under the Act. The
specific provisions will be referred to in due course. The events leading
up to the litigation that culminated in the present appeal are set out
hereafter.

[2]   The appellant, Ms Lynette Mary Roux, a clinical psychologist, was
appointed to conduct forensic work and furnish a report to the office of
the Family Advocate in Johannesburg, regarding litigation between the
second respondent, Mr Oliver Michael Powell and Ms Linda Petzer about
access to a minor child Byron, born of the relationship between them. The
appellant furnished the Family Advocate with her report on 19 March
2004. She thereafter assumed the role of a therapeutic psychologist and
began treating Byron. During March 2005, and while still treating Byron,
the appellant supplemented her March 2004 report.

[3] On 11 April 2005 Powell, through the registrar, submitted a
complaint to the first respondent against the appellant which he
supplemented in September 2005. The first respondent, the Health
Professions Council of South Africa (HPCSA), was established in terms
of s 2 of the Act and has as its objects, amongst others, to promote and to
regulate interprofessional liaison between health professions in the
interest of the public and to control and exercise authority in respect of all
matters affecting the profession. The HPCSA must, in terms of s 3(j) of
the Act, serve and protect the public in matters involving the rendering of
health services by persons practising a health profession. Importantly for
this case, one of the functions of the HPCSA is set out in s 3(n) of the
Act, which is:

'to ensure the investigation of complaints concerning persons registered in terms of
this Act and to ensure that appropriate disciplinary action is taken against such
persons in accordance with this Act in order to protect the interest of the public.'

[4]    In essence, Powell’s first complaint was that the appellant had acted
unprofessionally when she assumed multiple relationships, that is, that of
being an investigator appointed by the Family Advocate and then also a
therapist to Byron. Secondly, Powell complained that the appellant had
misdiagnosed his condition and had labelled him a liar. Powell requested
the HPCSA to investigate these allegations and institute an inquiry into
the conduct of the appellant. Acting in terms of regulation 3(1)b)1 the
registrar forwarded a copy of the complaint to the appellant requesting
her to respond. The appellant submitted a written response in February
2006.

[5] Thereafter, in terms of regulation 3(2),2 the matter was placed
before the committee of preliminary inquiry of the professional board for
psychology (the committee). The committee obtained an opinion from
Professor Charl Vorster, a clinical psychologist, in regard to the
allegations of unprofessional conduct. His view was that the appellant
should be prosecuted only on the allegation of multiple relationships. It is

1 Regulation 3(1)(b) reads:
'3(1) The registrar may ─
. . .
(b) within seven working days after he or she received a complaint, notify the accused of the complaint
or forward particulars of the complaint to him or her –
(i) requesting a written response from him or her within 21 working days after receipt of such
notification or particulars, failing which the complaint will be forwarded to the preliminary inquiry
committee without such written response; and
(ii) warning him or her that the written response referred to in subparagraph (i) may be used in
evidence against him or her.
. . .'
2 Regulation 3(2) reads:
'On receipt by the registrar of further information or a written response referred to in subregulation
(1)(a) or (b), the registrar shall submit such further information or written response to the committee of
preliminary inquiry and if no further information or written response is received, the registrar shall
report this to the committee of preliminary inquiry.'

common cause between the parties that the committee accepted Prof
Vorster's opinion. On 18 May 2007 the committee resolved, in terms of
regulation 3(3) and (4), that an inquiry into the conduct of the appellant
should be held.

[6] The pro forma complainant3 prepared a draft charge sheet which
referred to the multiple relationships charge only. This draft charge sheet
was submitted to the chairman of the committee for final approval and
was approved by the latter on 18 July 2007 – this procedure is not
statutorily prescribed but appears to be established practice. The registrar,
acting in terms of regulation 4(a), thereafter issued a notice enclosing the
charge sheet to the appellant specifying the date, time and place where
the inquiry into this lone charge would be held.

[7] The inquiry was postponed on numerous occasions for various
reasons.  The charge sheet was also amended on at least three occasions.
First, it was amended by the pro forma complainant, without reference to
the professional committee, after Powell insisted that the pro forma
complainant also prefer the misdiagnosis charge against the appellant. In
this regard Powell relied on an opinion from Professor D A Louw, a
clinical psychologist. Second, the pro forma complainant withdrew the
charge sheet after Vorster advised him that the evidence before the
committee of preliminary enquiry revealed only one count of misconduct,
that is, the multiple relationships charge. A new charge sheet was served
upon the appellant. The third occasion is referred to in para 9 below.

[8] As the inquiry was repeatedly postponed, the appellant launched an
application in the North Gauteng High Court, Pretoria for declaratory and

3 Regulation 1 defines a pro forma complainant as 'a person appointed by a professional board to
represent the complainant and to present the complaint to a professional conduct committee'.

interdictory relief against the HPCSA and Powell. She sought an order
that the inquiry instituted against her in terms of s 41 of the Act be
declared unlawful, unreasonable and/or procedurally unfair and directing
that the inquiry be permanently stayed.

[9]   Following what is set out in para 7 Powell was even more insistent
that the misdiagnosis charge be added. He placed reliance on an opinion
from another expert, Dr Louise Olivier, a clinical and counselling
psychologist. This stance by Powell led to the pro forma complainant
withdrawing the old charge sheet and supplanting it with a new one
containing two charges, the multiple relationships and misdiagnosis
charges. This charge sheet was served on the appellant on 4 September
2009.The parties were at this stage exchanging affidavits in preparation
for the hearing of the application in the court below.

[10] This caused the appellant to file an amended notice of motion in
which she sought additional relief, inter alia, a declarator that the charge
sheet dated 4 September 2009 be set aside; alternatively, that count 1
thereof (the misdiagnosis charge) be set aside, and that the HPCSA be
directed to hold an inquiry only into the alleged misconduct in respect of
count 2 (the multiple relationships charge).

[11]   In the court below the appellant submitted that the charges be set
aside due to the delays caused in bringing the matter to finality as well as
the fact that the pro forma complainant had exceeded his authority when
he preferred the misdiagnosis charge. The HPCSA and Powell, on the
other hand, contended that it was premature for the appellant to approach
the court as the actual inquiry had not been conducted and that the pro
forma complainant had acted within his statutory authority.

[12] Tuchten J in the court below held that there was insufficient
evidence to support the claim for the undue delay in conducting the
inquiry. Furthermore, the learned judge held that the committee had not
authorised an inquiry into specific conduct, but merely considered the
material placed before it and decided, in general terms, that an inquiry
should be held. According to the judge, once the committee had decided
that the complaint had merit, its function was complete. He held that the
ambit of the inquiry was rightly determined by the pro forma
complainant. He thus dismissed the application with costs. He later
granted leave to this court.

[13] Before us, the litigation between the parties has been reduced to a
single issue: whether a pro forma complainant has the authority to prefer
charges against a health practitioner which were not authorised by the
committee of preliminary enquiry?

[14]  As in the court below, counsel for the appellant contended that the
pro forma complainant had exceeded his authority when he included the
misdiagnosis charge in the charge sheet as he was restricted to
formulating a charge as determined by the committee. Put differently, the
question concerned the principle of legality. The submission advanced on
behalf of the respondents was that the relief sought by the appellant was
not competent because the matter was not ripe for review, since the
disciplinary enquiry had not even begun and that the pro forma
complainant in any event had the requisite authority to determine the
nature and extent of the charges to be brought against a health
practitioner.

[15] As indicated earlier in this judgment, the answer to this issue
depends on the interpretation and application of the provisions of the Act
and the regulations. It is thus apposite at this stage to consider the scheme
of the Act.
The relevant provisions of s 15 of the Act provide:
'15. Establishment of professional boards:
(1)  The Minister shall, on the recommendation of the council, establish a professional
board with regard to any health profession in respect of which a register is kept in
terms of this Act, or with regard to two or more such health professions.
. . .
(5) Regulations relating to the constitution, functions and functioning of a
professional board shall at least provide for─
. . .
(f) the establishment by a professional board of such committees as it may deem
necessary, each consisting of so many persons appointed by the board as the board
may determine, but including at least one member of the board who shall be the
chairperson of such committee, and the delegation to any person or any committee so
established, such of its powers as it may from time to time determine, but shall not be
divested of any power so delegated.'
Section 41 provides:
'41. Inquiries by professional boards into charges of unprofessional conduct:
(1)  A professional board shall have power to institute an inquiry into any complaint,
charge or allegation of unprofessional conduct against any person registered under
this Act, and, on finding such person guilty of such conduct, to impose any of the
penalties prescribed in section 42(1).
(2)   A professional board may, whenever it is in doubt as to whether an inquiry
should be held, in connection with the complaint, charge or allegation in question
consult with or seek information from any person, including the person against whom
the complaint, charge or allegation has been lodged.'

[16] As stated above, s 3(n) empowers a council to investigate
complaints against health practitioners and to ensure that appropriate
disciplinary action is taken against such persons in terms of the Act.

Section 41(1) confers on the professional board the power to institute
inquiries into complaints, charges or allegations of unprofessional
conduct. A board may in terms of s 15(5)f) establish committees
comprising such persons as the board may deem fit, and shall include at
least one member of the board. It may delegate to such committee such of
its powers as it may determine.

[17] In terms of s 61(h)(i) of the Act, the Minister is empowered, after
consultation with the council, to make regulations relating to the manner
in which complaints, charges or allegations brought against a registered
person shall be lodged. The regulations promulgated in terms of the Act
deal with the manner in which the complaints of alleged unprofessional
conduct are to be dealt with. Regulation 2(1) states:
'A complaint shall be in writing and be addressed to the registrar or to the council or
to a professional board.'

[18] Regulation 3 sets out the procedure to be adopted upon receipt of a
complaint. The registrar may either call for further information, or within
seven days forward the complaint to the affected person, calling upon him
or her to respond to such complaint or allegations. For present purposes
the critical provisions are regulation 3(3) and (4) and regulation 4(a) and
(b) and these provide:
'(3)
If a committee of preliminary inquiry decides, after due consideration of the
matter, that there are no grounds for an inquiry, it shall direct the registrar to
communicate in writing its decision to the complainant and the accused stating the
reason(s) for such decision.
(4)
If a committee of preliminary inquiry decides, after due consideration of the
matter, that an inquiry must be held into the conduct of the accused, it shall direct the
registrar to arrange for the holding of an inquiry.
4(a)
On receipt of a directive referred to in regulation 3(4), the registrar shall issue
a notice, which is attached hereto and essentially in the form of Annexure A and

addressed to the accused, stating where and when the inquiry will be held and
enclosing a charge sheet as formulated by the pro forma complainant.
(b)
The notice referred to in paragraph (a) shall be served on the accused or
mailed to him or her at his or her registered address by registered mail at least one
month prior to the date of the aforesaid inquiry.'

[19] The primary rule in the interpretation of statutes is to give effect to
the object or purpose of the statute. The nature of the statute and the
purpose for which it was enacted are important when it comes to matters
of interpretation. This court has embraced the purposive approach,
whereby statutory words must be interpreted in the context of the statute
as a whole including its purpose.4 In Stopforth v Minister of Justice;
Veenendaal v Minister of Justice5 this court confirmed that 'even where
the language is unambiguous, the purpose of the Act and other wider
contextual considerations may be invoked in aid of a proper construction'.
It follows therefore that the Act and regulations must be given a
purposive construction to give effect to their principal aims and purposes.

[20] Before us, the parties were agreed that the committee's role as
referred to in sub-regulations (3) and (4) was to ensure that only
sustainable complaints were proceeded with ─ a sifting function.

[21]  It was contended on behalf of Powell that the sifting process was
not one in respect of which a specific charge or charges was or were to be
considered but rather where the committee decided whether all the
information before it should form the basis of the charge or charges to be
formulated by the pro forma complainant.

4 See Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman Primary School 2008 (5) SA 1
(SCA) paras 16-19.
5 Stopforth v Minister of Justice; Veenendaal v Minister of Justice 2000 (1) SA 113 (SCA) para 21.

[22] In my view the submission on behalf of Powell is fallacious. The
very basis of having a committee to conduct a preliminary inquiry, is to
decide, with the skills available to it, which of the complaints put before
it were warranted. The committee consists of health professionals who
possess skills relative to the regulated profession. They are best suited to
decide whether there are grounds on which to conduct an inquiry into
unprofessional conduct. It is that committee's function to specify the
conduct to be the subject of inquiry.

[23] The pro forma complainant in this case is a person legally trained
whose task, in my view, is to ensure that the circumscribed conduct is
accurately encapsulated in an intelligible form by way of a formal charge
sheet. If this were not so, the wrong professionals would be charged with
tasks beyond their expertise.

[24] That this is how the scheme of the Act is understood by the
HPCSA, is borne out not only by what transpired in this case before the
aggressive intervention by Powell, but also by how the process of
inquiries is described in general terms by Mr Janzen, who was employed
by the HPCSA as a pro forma complainant.

[25] In the present case the committee had authorised only the bringing
of the multiple relationships charge. This it did in terms of regulation
3(4). Janzen, who deposed to the answering affidavit and the
supplementary answering affidavit on behalf of the HPCSA, stated that
the committee had resolved that an inquiry be held in regard to the
complaint of the appellant's multiple relationships. In consultation with
Vorster, a draft charge sheet was prepared and approved on 4 July 2007.
This charge sheet was later submitted to the chairman of the committee

for final approval, who approved it on 18 July 2007. The new charge
sheet dated 4 September 2009 which included two charges was never
submitted to the chairperson of the committee for approval, nor were the
reports by Olivier and Louw presented to the committee for its
consideration.

[26] It was submitted on behalf of Powell that the words 'an inquiry
must be held into the conduct of the accused' meant that all that the
committee was required to do was to decide whether an inquiry should be
held into the conduct apparent from the information placed before the
committee, without the need for specificity. In my view, this latter
submission falls to be rejected. It renders the sifting process nugatory.
Furthermore it is at odds with fundamental principles of administrative
law, namely that decisions 'affecting individuals' should be based on
substantiated information and that the person at the receiving end of
disciplinary action should be clearly apprised of the nature of the charges
he or she has to face to enable a proper defence to be mounted.6

[27] The pro forma complainant accordingly did not have the authority
to include the misdiagnosis charge in the charge sheet. He was
furthermore not entitled to accept expert opinions sourced by the second
respondent and formulate the misdiagnosis charge based on such
opinions. He had a duty to act in accordance with the instructions of the
committee. In the result the high court erred in finding that the pro forma
complainant had the power to determine the ambit of the inquiry,
including the specific charges to be preferred.

6 Lawrence Baxter Administrative Law (1984) at 546. See also Cora Hoexter  Administrative Law in
South Africa (2007) at 334.

[28] Counsel for the HPCSA and Powell submitted that the formulation
of the charge sheet did not constitute 'administrative action' as defined in
section 1 of the Promotion of Administrative Justice Act 3 of 2000
(PAJA) and therefore that there were no grounds to review the decision.

[29] Administrative action is defined in s 1 of PAJA as:
'any decision taken, or any failure to take a decision, by ─
(a)
an organ of state, when ─
(i)
exercising a power in terms of the Constitution or a provincial constitution; or
(ii)
exercising a public power or performing a public function in terms of any
legislation; or
(b)
a natural or juristic person, other than an organ of state, when exercising a
public power or performing a public function in terms of an empowering provision,
which adversely affects the rights of any person and which has a direct, external legal
effect . . . .'7
In my view, Janzen (however misguided), acting on behalf of the
HPCSA, in deciding on and proceeding to add the additional charge, was
engaging in administrative action. His decision clearly falls within the
definition of 'administrative action' and is in the ordinary course subject
to review for lack of statutory authority in terms of s 6 of PAJA.

[30] Even if this were not so, the committee and the pro forma
complainant exercised public power, purportedly in terms of the
provisions of the Act and the regulations. In Fedsure Life Assurance Ltd v
Greater Johannesburg Transitional Metropolitan Council the following
was said in para 40:8

7 In Grey's Marine Hout Bay (Pty) Ltd  v Minister of Public Works 2005 (6) SA 313 (SCA) para 24
Nugent JA summarised administrative action as 'the conduct of the bureaucracy (whoever the
bureaucratic functionary might be)  in carrying out the daily functions of the State, which necessarily
involves the application of policy, usually after its transition into law, with direct and immediate
consequences for individuals or groups of individuals'.
8 Fedsure Life Insurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA
374 (CC). See also Gerber v MEC for Development Planning & Local Government, Gauteng 2003 (2)

'It is not necessary in the present case to attempt to characterise the powers of local
government under the new constitutional order, or to define the grounds on which the
exercise of such powers by an elected local government council itself can be reviewed
by the Courts. The exercise of such powers, like the exercise of the powers of all other
organs of State, is subject to constitutional review which, . . . includes review for
"legality" . . .'.

[31] The principle of legality is implicit in our Constitution and applies
to every exercise of public power, thus providing an essential safeguard
even when action does not qualify as 'administrative action' for purposes
of PAJA or the Constitution. As stated by Sachs J in Minister of Health
NO v New Clicks South Africa (Pty) Ltd (Treatment Action Campaign as
amicus curiae)9 'The constitutional principle of legality is of application
even when the action in question is an exercise of public power that does
not qualify as "administrative action" . . .'. The principle of legality
requires that 'power should have a source in law' and 'is applicable
whenever public power is exercised. Public power . . . can be validly
exercised only if it is clearly sourced in law'.10

[32] The principle of legality dictates that administrative authorities
such as the HPCSA cannot act other than in accordance with their
statutory powers. The decision of the pro forma complainant to include
the misdiagnosis charge was not 'sourced in law' and has offended against
the principle of legality. The decision has to be reviewed and nullified for
want of statutory power. It follows that the misdiagnosis charge has to be
set aside. The inquiry, if it continues, can relate only to the multiple
relationships charge.

SA 344 (SCA) para 35 and Senwes Ltd v Competition Commissioner of South Africa (118/2010) [2011]
ZASCA 99 para 51.
9 Minister of Health v New Clicks South Africa (Pty) Ltd  2006 (2) SA 311 (CC) para 613.
Premier,Western Cape  v Overberg District Municipality 2011 (4) SA 441 (SCA) paras 37-38.
10 AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2007 (1) SA 343 (CC) para 68.

[33] It is necessary briefly to consider the respondents' submission that
the matter was not ripe for review as the inquiry had not been held. This
contention cannot be sustained. A person is not prevented from applying
to court for relief where his very complaint is the illegality or
fundamental irregularity in respect of the decision he seeks to challenge
or impugn.11 There is no reason why a person such as the appellant
should first subject herself to an unauthorised inquiry which would entail
costs and wasted time before challenging its legality. This is not the kind
of case where the question of ripeness arises as the challenge relates to
the source of power and the principle of legality. The appellant was
entitled to a declaratory order in that regard.

[34] Finally, there is a disturbing aspect of this case that I am
constrained to address. The purpose of establishing the HPCSA was to
protect the public interest. The complaint was lodged in April 2005. The
inquiry is yet to be heard, six years later. Such a state of affairs reflects
badly on the HPCSA and affects public confidence in it.

[35] For the reasons stated above the appeal succeeds. The following
order is made:
The appeal is upheld with costs.
The order of the court below is set aside and replaced with the
following:
'(a)
Count 1 of the charge sheet dated 4 September 2009 is set
aside.

11 Welkom Village Management Board v Leteno 1958 (1) SA 490 (A) at 503A-D.

(b)
The first respondent is ordered to hold an inquiry into the
appellant's alleged misconduct solely in respect of Count 2
within two months of the date of this judgment.
(c)
The first and second respondents are ordered jointly and
severally, the one paying the other to be absolved, to pay the
costs of the application.'

_______________

N Z MHLANTLA

JUDGE OF APPEAL

APPEARANCES
For Appellant:

P Beltramo SC

Instructed by:

Bowman Gilfillan Inc, Johannesburg

Symington & De Kok, Bloemfontein

For 1st Respondent:
E B Clavier

Instructed by:

Matabane Incorporated, Pretoria

EG Cooper & Majiedt Inc, Bloemfontein

For 2nd Respondent:
F A Snyckers

Instructed by:

Darryl Furman & Associates, Johannesburg

Matsepes, Incorporated, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
21 September 2011
Status:
Immediate

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

ROUX v HEALTH PROFESSIONS OF SA

The Supreme Court of Appeal (SCA) today upheld an appeal against a judgment of the
North Gauteng High Court, Pretoria. The high court had dismissed an application by Ms
Roux, a clinical psychologist- the appellant in the present case- in which she sought to have
a second charge of unprofessional conduct, which was preferred against her by a pro forma
complainant purportedly acting on behalf of the Health Professions Council of South Africa
(HPCSA), set aside. This court held that the pro forma complainant had no the authority to
prosecute a charge of alleged unprofessional conduct which had not been authorised by the
preliminary committee of inquiry of the board. It further held hat the decision of the pro
forma complainant in including a charge of misdiagnosis was not sourced in law and had
offended the principle of legality.

The background facts to the application and the appeal are set out in brief hereafter. The
second respondent, Mr Powell, had lodged a complaint with the HPCSA against the

appellant who had been appointed by the office of the Family Advocate to compile a
forensic report for the purpose of litigation between Powell and Ms Linda Petzer
concerning Powell’s right of access to their minor son. Powell complained that the
appellant had assumed multiple relationships, namely, that of a clinical (forensic)
psychologist and that of a therapeutic psychologist to his son and that she had
misdiagnosed him (Powell). The matter was referred to the committee of preliminary
inquiry which decided, pursuant to expert opinion received by it, that only the multiple
relationships charge should be prosecuted. The committee then referred its decision to the
pro forma complainant for the formulation of the charge sheet. The pro forma complainant
drafted a charge sheet which included only the multiple relationships charge. However, as a
result of Powell’s aggressive intervention the pro forma complainant added the
misdiagnosis charge.

The high court in dismissing the application reasoned that the committee of preliminary
enquiry had provided the entire dossier of information to the pro forma complainant and
that he was at large to determine how the charges were to be formulated, including adding
the second charge.

In upholding the appeal, the SCA held that it was the function of the committee, not the pro
forma complainant, to specify the conduct to be the subject of the inquiry. In the present
case it had only authorised the prosecution of the multiple relationships charge. The SCA
noted that the committee consisted of health professionals who possess skills in the field of
psychology. These professionals were best suited to decide whether there were grounds on
which to conduct an inquiry into unprofessional conduct. The pro forma complainant’s
task, the SCA held, was only to utilise his legal skills to ensure that the circumscribed
conduct was accurately encapsulated in an intelligible form by way of a formal charge
sheet. If this were not so, the SCA stated, the wrong professionals would be charged with
tasks beyond their expertise.

The SCA further held that the decision of the pro forma complainant to include the
misdiagnosis charge was not sourced in law and had offended the principle of legality. It

had to be reviewed and set aside for want of statutory power. The SCA also held that the
appellant was not prevented from applying to court for relief where her very complaint was
the illegality or fundamental irregularity in respect of the pro forma complainant’s decision
to include the misdiagnosis charge. There was no reason why she should first subject
herself to an unauthorised inquiry which would entail costs and wasted time before
challenging its illegality.

Consequently, the SCA upheld the appeal and substituted the order of the high court with
an order setting aside the misdiagnosis charge and directing the HPCSA to hold an inquiry
only in respect of the multiple relationships charge within two months of the date of the
judgment.