Spartan Caselaw

Els v Health Professions Council [2024] ZAWCHC 112

ADMINISTRATIVE – Disciplinary enquiry – Alleged procedural misstep – Ruling on inadmissibility of evidence

Procedure adopted by applicant is Stalingrad tactic during part-heard disciplinary enquiry – Refusal by superior court to permits its jurisdiction to be engaged in medias res – Not establishing that she has right to internal appeal against the interlocutory ruling – Applicant has at least two other remedies in event that she is ultimately found guilty of professional misconduct – Internal appeal and an appeal to High Court – Application dismissed with costs on scale as between attorney and client.

Facts: The applicant is a counselling psychologist in private practice in George who is in the process of being disciplined by the Health Professions Council (HPCSA), the statutory professional body with which she is registered to practice. It is alleged that the applicant engaged in what is termed, in the language of the profession of psychologists, “multiple relationships”. The substance of the complaint is that while the applicant was acting as a court-appointed facilitator in a Childrens’ Court enquiry in Cape Town, she offered professional therapeutic services to certain of the parties involved in that matter. Such conduct is regarded by the HPCSA as unprofessional in that is alleged to be a breach of the so-called Professional Board for Psychology Rules of Conduct Pertaining to the Profession of Psychology. The applicant approached the High Court urgently for an order for a permanent stay of the inquiry, but this application was dismissed with costs. The applicant sought to appeal the Conduct Committee’s ruling on the inadmissibility of evidence by lodging an internal appeal with the Registrar, who found that an appeal was not ripe at that stage of the process.

Application: What the applicant seeks to do at this stage in the middle of her part-heard disciplinary enquiry is to launch a review within 21 days of this court’s interim order to procure the setting aside of the alleged “decision” of the Registrar. If the review is successful, the applicant hopes to persuade the reviewing court to remit the matter back to the Registrar with directions that a duly constituted Appeal Committee consider the applicant’s appeal against the Conduct Committee’s refusal to permit the Children’s Court record to be admitted into evidence and for witnesses to be cross-examined thereon. The applicant will then seek to argue the admissibility point before the Appeal Committee and, if successful, to return to the disciplinary enquiry and request that it proceed on the basis of the admissibility point having been resolved in her favour.

Discussion: Having failed to stop the inquiry in the previous application, the applicant has now seized upon a further alleged procedural misstep to stall the disciplinary proceedings. The procedure adopted by the applicant is yet another page in what has become known as “The Stalingrad Playbook”, where litigants in criminal matters, all the while proclaiming their earnest wish to bring the matter to a speedy conclusion so as to procure their acquittal, put up one procedural hurdle after another to kibosh that very intention. While the disciplinary inquiry which the applicant faces is not a criminal trial, it bears a strong resemblance thereto, both in form and substance. The applicant is not bona fide in her desire to lodge an internal appeal and a civil court would thus be reluctant to permit such a delaying tactic to be advanced. The time might not be far off that the courts visit legal practitioners who facilitate such stratagems with personal costs orders.

Findings: A superior court will only intervene in uncompleted proceedings in a lower court (or other similar tribunal) in exceptional cases. In the absence of exceptional circumstances, reviews should ordinarily be brought at the end of proceedings in order not to threaten the effectiveness of all tribunals and courts by opening sluice-gates that could render the functioning of the courts and the innumerable administrative tribunals throughout the land untenable. The approach in Wahlhaus v Additional Magistrate, Johannesburg 1959 (3) SA 113 (A) is not founded on a party’s failure to satisfy the test for an interim interdict. Rather, it is based on a superior court’s refusal to engage with a matter until the proceedings below have terminated: it is essentially a refusal by the superior court to permits its jurisdiction to be engaged in medias res. The applicant anyway has not established that she has a right to an internal appeal against the Conduct Committee’s interlocutory ruling. She has not established an apprehension of irreparable harm if the application is dismissed. The balance of convenience is manifestly in favour of the proceedings being brought to finality as soon as possible. The applicant has at least two other remedies in the event that she is ultimately found guilty of professional misconduct: an internal appeal under the Regulations and an appeal to the High Court under section 20 of the Health Professions Act 56 of 1974.

Order: The application is dismissed with costs on the scale as between attorney and client.

GAMBLE J

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uMkhonto weSizwe Political Party v Electoral Commission [2024] ZAEC 5

CONSTITUTION – Elections – Eligibility for National Assembly

Appeal against Electoral Commission’s decision upholding objection lodged in terms of section 30 of Electoral Act 73 of 1998 – Section 47(1)(e) of Constitution and conviction for offence – Effect of remission on sentence – Whether reasonable apprehension of bias established – Commission’s construction of section 47(1)(e) was incorrect – Conviction and sentence do not take effect until appeal process has taken place or person has elected to not appeal – Sentence imposed on Mr Zuma cannot be said to be sentence which the section contemplates – Appeal succeeds.

Facts: The Constitutional Court granted an order in favour of the Judicial Commission of Inquiry in terms of which Mr Zuma was ordered to attend the Commission and give evidence before it. As a result of Mr Zuma’s failure to appear before the Commission, it instituted contempt of court proceedings against him in the Constitutional Court which made an order declaring Mr Zuma to be guilty of the crime of contempt of court and sentencing him to undergo 15 months’ imprisonment. He began serving his sentence but was released on medical parole, which release was challenged in court and he had to return. Due to a special remission issued by President Ramaphosa in 2023, Mr Zuma benefited and as a result he was released from the Correctional Centre on the same day on which he presented himself for completion of his sentence. As at the date of the Proclamation approving the remission, Mr Zuma had served just less than three months of the original sentence. In due course, the MK Party was registered as a political party as it intended to contest the 2024 general elections. Mr Zuma became a member of the MK Party and he was nominated as a candidate for the National Assembly election, which nomination Mr Zuma accepted.

Appeal: The Electoral Commission received objections in terms of section 30 of the Electoral Act 73 of 1998 read with regulation 6 of the Regulations Concerning the Submission of Lists of Candidates, 2004 to the nomination of Mr Zuma. The submission was that, in terms of section 47(1)(e) of the Constitution, Mr Zuma is not eligible to be a member of the National Assembly in that: he was convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine, to wit 15 months; and a period of five years after the sentence has been completed has not elapsed. This is an appeal against the decision of the Commission, upholding the objections lodged with it.

Bias and exceeding its powers: The court disagrees with the MK Party’s argument that the Commission exceeded the limits of its powers when it determined under section 30 of the Act that Mr Zuma is not eligible to be a member of the National Assembly in terms of section 47(1)(e) of the Constitution. The source of power to make that determination is to be found in section 27 and section 30 of the Act. The Commission is empowered to determine, before the election, qualification for membership of the National Assembly. The evidence on which the complaint of bias rests is tenuous to say the least. It is a single “illustrative” newspaper report, with only the words set out being directly quoted from Commissioner Love. What is clear is that the statement made by Commissioner Love, in a context in which she was speaking for the Commission, is ambiguous and without specificity. Both the applicant and the Commission put forward different possible interpretations of the statements. The applicant bears the onus to establish the existence of bias, and it has failed to do so. The court disagrees with the submission that the effect of the remission was to cancel or extinguish the remainder of the sentence. This was not a reprieve or pardon. The President may not through the act of remission undo what the judiciary has done.

Conviction and section 47(1)(e): In terms of s 47(1)(e) of the Constitution a person who is convicted of an offence and sentenced to more than 12 months’ imprisonment without an option of a fine is not eligible to be a member of National Assembly. The disqualification does not operate immediately. If there is an appeal against the conviction and/or sentence a nominated candidate remains eligible to be a member of the National Assembly, pending the final determination of the appeal. It was submitted by the Commission that where a sentence is imposed by the highest court in the land, such as the Constitutional Court, the conviction and sentence are not appealable with the result that the person convicted becomes disqualified immediately. The Commission’s construction of section 47(1)(e) is incorrect for two reasons. First, the actual words in section 47(1)(e) are incapable of this interpretation. Secondly, this construction requires the court to read in words into section 47(1)(e) the effect of which will be to exclude the operation of the proviso in section 47(1)(e) if a person concerned was sentenced by the highest court in the land. The conviction and sentence do not take effect until the appeal process has taken place alternatively a convicted and sentenced person has elected to not appeal the conviction and/or sentence. The sentence that was imposed on Mr Zuma cannot be said to be a sentence which the section contemplates. The Commission erred therefore to uphold an objection to Mr Zuma’s candidacy on the basis that the sentence that was imposed on him disqualified him from being eligible to be a member of National Assembly.

Order: The appeal succeeds. The decision of the Electoral Commission upholding the objection to Mr Zuma is set aside and substituted with the following: “The objection is hereby dismissed.” No order is made as to costs.

ZONDI JA (MODIBA J, YACOOB AJ and Professors Ntlama-Makhanya and Phooko concurring)

MODIBA J (Professors Ntlama-Makhanya and Phooko concurring) separately from para [54]

YACOOB AJ from para [86]

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Democratic Alliance v Electoral Commission [2024] ZAEC 6

CONSTITUTION – Elections – Overseas voters

Whether “consulate” includes consulates headed by honorary consuls – Act allows registered voter to apply for special vote – Contention that commission’s decision to limit voters only to consulates headed by “career consuls” is unlawful – Commission and department may not decide which certain consulates may facilitate voting and which ones may not – “Consulate” includes consulate headed by honorary consul – Eligible voters can cast their special votes at such consulate – Electoral Act 73 of 1998, s 33.

Facts: Some registered voters who live in Perth, Australia enquired from the South African consulate in Perth whether they could cast their special votes there in the upcoming election. The consulate told them that they could not vote in Perth because according to an Act of Parliament of the Republic of South Africa, voting can only take place in South African Embassies, High Commissions and Consulates. Consulates only refer to those that are headed by the transferred staff from South Africans excluding Honorary consuls. They need to cast their vote at the High Commission in Canberra, Australia. Canberra is approximately 3,000 km from Perth and is the only place in Australia at which a vote can be cast, according to the Commission’s interpretation. The dispute arose in this context. The argument by the DA (applicant) is that the meaning of the word “consulate” is not confined to consulates headed by career consular officers. It includes consulates headed by honorary consuls and, that being so, eligible voters can cast at such consulates. On the other hand, the Commission and the Department contend that the word “consulate” does not include consulates headed by honorary consuls. They maintain that its meaning is confined to consulates headed by career consuls and, therefore, eligible voters cannot cast special votes at such consulates.

Review: As a result of the dispute between the parties regarding the meaning of the word “consulate”, the DA brought an application in which it sought an order declaring that the Electoral Commission must allow the casting of special votes in terms of section 33 of the Electoral Act 73 of 1998 at any (all) South African embassy, high commission, or consulate abroad; and that the Electoral Commission’s decision not to allow the casting of special votes at any (all) South African embassy, high commission, or consulate is reviewed and set aside. The issue concerns the interpretation of section 33 which provides that certain voters may cast special votes at a South African embassy, high commission, or consulate abroad. It turns on the meaning to be ascribed to the word “consulate” and whether it includes a consulate headed by an honorary consul. The interpretation of this word is important for many eligible South African voters who will be outside the Republic of South Africa on voting day and to whom the only accessible consular posts may be those headed by honorary consular officers.

Discussion: The DA seeks to review the Commission’s decision on three bases. Their first argument is that “consulate” means consulate, whether headed by a career or honorary consular officer. It therefore argues that the Commission’s decision that eligible voters can only vote at certain consulates (not those headed by honorary consular officers) is unlawful. The second argument differs on remedy. The DA seeks an order directing the Commission to take all reasonable steps to ensure that eligible voters can cast special votes at any consulate in the upcoming 2024 general elections. The third argument is an alternative interpretation of section 33(3) and regulation 10(3). It argues that “any consulate” means those consulates where special voting would be reasonably practicable. Those include consulates with public offices, employing staff, that offer consular services, and can verify voters’ identification. The Commission should be directed to facilitate voting at these consulates, both for this upcoming election and subsequent elections. When considering “plain meaning”, a technical meaning that is not obvious to those who do not have specialist knowledge should be avoided when, as in this case, it leads to the exclusion of the eligible voters who live or happen to be in a country which does not have a South African embassy, high commission or consulate. On this interpretation, these voters are deprived of the benefit derived from the special dispensation afforded by section 33 and there is no indication that the legislature either expressly or by necessary implication intended to exclude them. This interpretation undermines the context and purpose of section 33(3).

Findings: The purpose of section 33(3) is to broaden the rights under section 19(2) of the Constitution: a right to free, fair, and regular elections for any legislative body established in terms of the Constitution. Section 33 broadens the opportunity to vote, by creating opportunities to do so outside South Africa. Considering the importance of political rights in the Constitution, and in our history, these rights must be protected and an interpretation which results in their promotion and greater accessibility must be preferred. The interpretation contended for by the DA is a plausible one because by extending the ambit of the definition of “consulate” it enables the eligible voters who happen to be outside the Republic on voting day to exercise their section 19(2) right. If voters cannot cast special votes in places such as Perth which do not have an embassy or high commission, then there is a strong chance that thousands of South Africans will not be able to vote. The Commission and the Department may not decide which certain consulates may facilitate voting and which ones may not. Their decision cannot influence the interpretation of section 33 and regulation 10(3). The fact that the Commission and the Department have decided not to empower honorary consular officials to facilitate special votes at their consul posts cannot change the meaning of the Act and Regulation. Based on the context and purpose of section 33(3) of the Act the word “consulate” appearing in that section includes a consulate headed by an honorary consul and that eligible voters can cast their special votes at such consulate.

Order: It is declared that the word “consulate” in section 33(3) of the Electoral Act 73 of 1998 includes a consulate headed by an honorary consul. To the extent that the Electoral Commission of South Africa decided not to allow the casting of special votes at consulates headed by honorary consuls, the decision is reviewed and set aside.

ZONDI JA (ADAMS AJ, YACOOB AJ and PROFESSOR PHOOKO (additional member) concurring)

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