South African Veterinary Council and another v Veterinary Defence Association (2) (112/2002) [2003] ZASCA 28 (27 March 2003)

.RTF of original document

THE SUPREME COURT OF APPEAL

OF SOUTH AFRICA

Reportable

CASE NO: 112/2002

In the matter between :

SOUTH AFRICAN VETERINARY COUNCIL Appellant

and

VETERINARY DEFENCE ASSOCIATION Respondent

___________________________________________________________________________

Coram: MARAIS, SCHUTZ, FARLAM, MTHIYANE JJA et HEHER AJA

Heard: 28 FEBRUARY 2003

Delivered: 27 MARCH 2003

___________________________________________________________________________

J U D G M E N T

___________________________________________________________________________

MARAIS JA/

MARAIS JA:

[1] I concur in the judgment of Farlam JA. I do so dubitans in so far as the finding that the respondent had locus standi to challenge the outcome of disciplinary proceedings is concerned. If its interest is, as it is said to be, the correction of the reasoning employed by the committee so that the members of the association, should they have the misfortune to be charged with unprofessional conduct, will not in future suffer from the same erroneous reasoning and thus be subjected to unfair administrative action, and if that is a sufficient interest to entitle it to seek relief in terms of s 38 (e) of the Constitution, it would have locus standi to approach the court for a declaratory order. But non constat that it would necessarily have locus standi to review the outcome of a disciplinary enquiry involving a third party (whether or not that party was a member) in order to protect the interests of its members generally.

[2] The locus standi of the respondent cannot depend upon whether or not the subject of the enquiry approves or disapproves of the challenge to the outcome of the enquiry. It either has locus standi or it does not. That is a mixed question of law and fact. Allowing outsiders to challenge, because there is a Bill of Rights principle which was not honoured, the outcome of proceedings the result of which is acceptable to the subject of the proceedings and which he or she does not wish to challenge or have disturbed, is fraught with potential problems.

[3] No doubt there may be infractions which are so grave that the new constitutional order will require the interests of the subject of the enquiry to be subordinated to the interests of the public in having strict adherence to the values enshrined in the Bill of Rights. To take an extreme example: A whipping is ordered by a disciplinary tribunal. The person disciplined prefers that fate to a more serious disciplinary action which it is open to the tribunal to take. It may well be that even outsiders who have no connection with the person concerned will have locus standi to attempt to prevent the whipping from being carried out. But I doubt whether the same would apply to any infraction whatsoever of a right contained in the Bill of Rights no matter how little prejudice, if any, has been caused by it.

[4] Had it not been for the fact that the Promotion of Administrative Justice Act 3 of 2000 has now been enacted and brought into operation, I would have felt obliged to come to a firm conclusion on the issue as the question would have continued to arise in the future and brave souls who might have wished to attempt to persuade this court to revisit the issue might have wanted to know what the detailed reasons for the misgivings are. But the present answer to the question is ephemeral as the provisions of the Promotion of Administrative Justice Act will henceforth have to be taken into account as well in answering such questions and we have obviously not been addressed on the proper interpretation of the provisions of that Act. I shall therefore not say more than I have said.

_____________________

R M MARAIS

JUDGE OF APPEAL

HEHER AJA ) CONCUR

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