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[2006] ZAGPHC 27
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Garib v Health Professions Council of South Africa and Others (A2007/02) [2006] ZAGPHC 27 (30 March 2006)
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(TRANSVAAL PROVINCIAL DIVISION) DATE: 30/3/2006
REPORTABLE
In the matter between: DR S H GARIB APPELLANT/APPLICANT And THE HEALTH PROFESSIONS COUNCIL OF SOUTH AFRICA 1ST RESPONDENT PROF T J MARIBA N.O. (In his capacity as President of the Health Professions Council of South Africa) 2ND REPONDENT THE MEDICAL AND DENTAL PROFESSIONS BOARD 3RD RESPONDENT PROF L H BECKER N.O. (In his capacity as Chairman of the Medical and Dental Professions Board) 4TH RESPONDENT THE PROFESSIONAL CONDUCT COMMITTEE 5TH RESPONDENT DR P J BARNARD N.O. (In his capacity as Chairman of the Professional Conduct Committee) 6TH RESPONDENT MR M E MATHIBE N.O. (In his capacity as Pro Forma Complainant) 7TH RESPONDENT 010009000003bb00000006001c00000000000400000003010800050000000b0200000000050000000c022300c006040000002e0118001c000000fb021000070000000000bc02000000000102022253797374656d0000c0060000c09c0000d43a120026e28239f07063030c020000040000002d01000004000000020101001c000000fb02ceff0000000000009001000000000440001254696d6573204e657720526f6d616e0000000000000000000000000000000000040000002d010100050000000902000000020d000000320a2d0000000100040000000000c0062200205c1600030000001e0007000000fc020000ff00ff000000040000002d01020008000000fa02050000000000ffffff00040000002d0103000e00000024030500ffffffffffff2100c1062100c106ffffffffffff08000000fa0200000000000000000000040000002d01040007000000fc020000ffffff000000040000002d010500040000002701ffff040000002d010000030000000000
DE VOS, J
1.
This is an appeal under section 20 of the Health Professions Act 56 of 1974 (as amended) (“the Act”), combined with an application for review of certain decisions of the Medical and Dental Professions Board.
2. The applicant was charged with professional misconduct. It was alleged that he had engaged in sexual intercourse with a patient on four occasions in October and November 1999. He was found guilty and a penalty of six months suspension from the register of health professionals, was ultimately imposed. In the application for a review as well as in the heads of argument filed on behalf of the applicant a number of legal arguments were raised, all directed at the setting aside of the decision of the board. During argument, however, Mr Duminy, who appeared on behalf of the applicant, chose not to pursue those arguments, although he did not abandon them. Instead he suggested that the crux of the matter lies in the merits of the appeal itself. I am of the view that Mr Duminy was correct in his approach not to pursue the legal arguments in regards the review. To my mind there is no merit in any of the submissions made on behalf of the applicant in the heads of argument or in the papers before me insofar as the review is concerned. I am also of the view that the crux of the matter lies in the merits of the appeal itself and do find it necessary to deal with the legal arguments raised. 3. Mr Duminy submitted that he appeal contemplated by section 20 of the act is an ordinary appeal. For this part of the case the court need not be satisfied that there was any irregularity and it is sufficient that the court would not have come to the same decision as the board on the material before it. I agree with this submission. Mr Duminy then proceeded to attack the findings of the committee and therefore the board on the following bases:
(1)
Firstly the committee expressly found that sexual intercourse had been proven on 28 October 1999, however, concerning the events of 28 October 1999 it found the following earlier in its recommendation:
“When confronted with the particulars contained in telephone statements which showed that she (ie the complainant) on 25 and
28 October could not have been at your residence at the time she alleged she could not satisfactory explain the differences between her evidence and the information contained in itemised telephone statements.”
It was therefore submitted that in the light of this finding concerning the 25th and 28th the complainant could not have been at the applicant’s residence where the sexual encounters allegedly took place at the relevant time the finding is therefore incomprehensible and not supported by the evidence that there
was sexual intercourse between the applicant and the complainant on 28 October of that year. Furthermore during argument
Mr Duminy also pointed out that also as far as 20 October is concerned the telephone records show that the complainant could not have been at the applicant’s
residence between 12:30 and 13:00 as is suggested by the evidence. It was therefore argued that the court should find that, in view of the evidence about the telephone conversations, the complainant was not at the applicant’s house between 12:30 and 13:00 on 20, 25 and 28 October. That only leaves 4 November’s
incident. Based on the fact that complainant was a single witness it was argued that her evidence as far as 4 November is
concerned was not corroborated in any way and therefore not acceptable. This together with the fact that she lied about the telephone
calls and specifically about the phone calls after she laid the charge against the applicant that this court should not uphold the conviction.”
4.
It seems to me that this argument fails to take into account the evidence as a whole and especially the probabilities in this particular
case. To my mind the following probabilities established the existence of a sexual relationship.
(1)
The evidence that the applicant proposed herbal oil treatment and that the complainant’s husband knew of the appointment. It is highly improbable that the complainant would fabricate the lie in this regard on/or before 20 October in order to lay a basis for a later false admission of sexual involvement with the
applicant.
(2) As far as the indicated telephone calls are concerned there was no direct evidence that the complainant arrived at the house at exactly 12:30 or left at exactly 13:00. These are merely inferences drawn by the counsel for the applicant from the evidence presented. I do not think that this is the only inference that can be draw from the facts before the court. I do not find that the telephone documentary evidence insofar as the telephone conversations are concerned in relation to 20 and 28 October necessarily excludes a visit to the applicant’s house.
(3)
Clearly something out of the ordinary occurred on 20 October. Why else would applicant phone the complainant seven times and she him four times. No casual friendship existed at the time on any version and in any event the frequency of the
telephonic contact cannot be explained on the basis of a casual friendship between a doctor and his patient. The applicant’s
explanation in this regard is highly improbable.
(4) The complainant visited the applicant’s home at least on three occasions in this relevant period. This was admitted by the applicant. Furthermore the version that the applicant hid the complainant from his father on one of those occasions was not contested in cross-examination and such conduct cannot be explained on the basis of an innocent visit. On the probabilities he did so because the visit was not of an innocent nature. The applicant’s denial to the complainant’s husband when confronted over the phone about his relationship with the complainant, and his statement that he only knew the complainant for medical reasons was not consolable with the telephone conversations and was irreconcilable with the applicant’s claims of innocence. (5) If it was indeed an innocent relationship in which the complainant had become dependent on the applicant he would have conveyed that to her husband. His failure to do so makes his claim in this regard improbable. (6) The very next day the applicant admitted to Dr Sunpath to a serious relationship with the complainant. His later explanation of the admission is really unconvincing to say the least. He had been accused of a sexual relationship the night before by the complainant’s husband. He must have understood what his colleague was enquiring about. If the allegations were false he would no doubt have conveyed this to Dr Sunpath in no uncertain terms. Instead he admits to a serious relationship and when questioned about the seriousness he refers to the fact that they have been together at his place. It is highly improbable that the applicant would have reacted in this way in the absence of a sexual relationship. (7) The applicant is thereafter blatantly accused of a sexual relationship at the Phoenix meeting. The situation called for a denial yet he remained silent. To my mind his silence under the circumstances amounted to an admission that he had sexual intercourse with the complainant. His statement on being invited to take the complainant away that he did not “want this to go so far” is irreconcilable with an innocent explanation. His denial in evidence of the existence of a sexual relationship is therefore improbable in the light of what was said before and should be rejected.
5.
I am therefore of the view that the evidence clearly establishes the findings referred to or the findings by the board namely that the applicant had sexual intercourse
with the complainant on at least three occasions. The board therefore correctly found the applicant guilty of unprofessional conduct
as recorded.
6. The appeal against the sentence cannot succeed. It is trite law that this court will only interfere with a sentence on appeal if it can be shown that the board misdirected itself in any way or if the sentence induces a sense of shock. Neither one of these two elements are present in this matter. Mr Duminy argued that the sentence should be suspended. He could, however, not refer to any misdirection or could not make the allegation that the sentence induced a sense of shock. Under those circumstances this court cannot interfere even though it may feel that the sentence is harsh. 7. In any event as far as I am concerned unprofessional conduct of a sexual nature towards a patient is serious in nature. The vulnerability of a patient involved is always an aggravating factor. In the circumstances I am of the view that the appeal against the sentence cannot be upheld. 8. In view of the above I am of the view that the appeal should be dismissed with costs. The costs to include the cost of two counsel. A DE VOS JUDGE OF THE HIGH COURT
I agree
A P LEDWABA
JUDGE OF THE HIGH COURT
I make such an order A2007/2002 HEARD ON: 28/02/2006 FOR THE APPLICANT: ADV WRE DUMINY SC INSTRUCTED BY: MACROBERT INC, PRETORIA FOR THE RESPONDENTS: ADV HB SMALBERG SC & MM MOJAPELO INSTRUCTED BY: MESSRS GELDENHUYS LESSING MALATJI INC, PRETORIA DATE OF JUDGMENT: 30/03/2006 |