Director of Hospital Services v Mistry

• Jurisdiction: South Africa
• Judge: Rumpff CJ, Rabie JA, Diemont JA, Viljoen AJA and Hoexter AJA
• Judgment Date: 09 November 1978
• Citation: 1979 (1) SA 626 (A)
• Hearing Date: 07 September 1978
• Court: Appellate Division

Diemont JA:

The appellant is the Director of Hospital Services in the Transvaal. The respondent, Navin Vithal Mistry, is a medical doctor who, C at the time of his suspension from office, was serving on the staff of the Baragwanath Hospital in Johannesburg. The appellant was the respondent in the lower Court and I shall, in order to avoid confusion, refer to him as the respondent, and to respondent in this Court as the applicant.

D It appears from the papers that the applicant graduated with the degrees of bachelor of medicine and bachelor of surgery at the University of Poona in India in 1968, that he took up residence on the Witwatersrand in the following year and that in December 1971 he accepted an appointment on the staff of the Baragwanath Hospital. At the time of his suspension in August 1976 he was the acting head of the casualty section of that hospital.

E Six months after his suspension he instituted proceedings on notice of motion in the Transvaal Provincial Division for his reinstatement on the hospital staff and for certain ancillary relief. In his founding affidavit Mistry stated that he was arrested by the South African Police and told to appear in the Kliptown magistrate's court on 3 August 1976 on criminal F charges arising out of his employment. He was not asked to plead to any charge nor was he informed of the precise nature of the charges but he was advised by the investigating officer that the charges concerned fraud and forgery. The case was remanded until 30 August 1976 in the Orlando magistrate's court. On 12 August 1976 he received a notice signed by the Director of Hospital Services in the following terms:

"Dr N V Mistry,

c/o Baragwanath Hospital

G You, Navin Vithal Mistry, a medical officer on the staff of the Baragwanath Hospital, and as such an officer as contemplated in s 41 of the Hospitals Ordinance 15 of 1958 in the service of the Transvaal Provincial Administration are hereby suspended from duty in terms of s 53 (4) of the said Ordinance with effect from 1 August 1976 until further notice.

In terms of s 53 (5) of the said Ordinance you will not be entitled to any emoluments for the period of suspension."

Applicant stated that he was told by the person who served the notice on him that his suspension arose from the matters which had given rise to the criminal charges against him. He stated further that, having been only suspended, and not discharged, he was precluded from taking any other employment as a medical doctor.

On 30 August 1976 the case against applicant was postponed to 8 September 1976 on which day he was ordered to appear in the magistrate's court in Johannesburg on 22 September 1976. A further postponement

Diemont JA

followed and on 30 September 1976 the matter was once more postponed for the fixing of a trial date in the Johannesburg regional court. Finally applicant's attorney and the regional court prosecutor arranged that the A trial would take place some three months later on 19 and 20 January 1977 in the Johannesburg regional court. There were several reasons for this lengthy postponement: the police officer who was investigating the case was going on leave in October, the applicant himself had planned a visit to India for religious purposes and did not intend returning to South B Africa until late in December and finally the regional court prosecutor wanted sufficient time to enable him to frame a charge and furnish particulars after the police had completed their investigations.

Several written requests were made by applicant's attorney to the regional court prosecutor for a copy of the charge sheet and when these requests C met with no success a final letter was written on 6 January 1977 advising the prosecutor that, as no charge sheet had been furnished, there was insufficient time to prepare for trial and accordingly application would be made on 19 January 1977 for the matter to be quashed. The reply to this letter was a telephone call from a member of the prosecutor's staff informing Mistry's attorney that the trial would not take place on 19 January 1977 and would have to be postponed once more. Applicant attended D court with his attorney and was told that the investigations into the charges against him had not been completed, that no charge had been framed and that it would not be possible for the case to be heard for at least two or three months.

Applicant submitted that he was being harshly penalised for his alleged E criminal conduct in that he had not only received no emoluments during the period of his suspension and no annual bonus, but he was also precluded from taking other employment while he was under suspension. He denied his guilt and said that, regard being had to the consequences of his suspension, he was entitled to have the matter determined as expeditiously as possible. He declared that the respondent was fully aware F of the terms of his suspension and was obliged to act in such manner as to ensure that any charges against him were determined with a minimum of delay. When he learned on 19 January 1977 that the trial could not proceed on that day and would probably not be heard for at least another two or G three months and he realised that he faced the prospect of another lengthy period without pay or employment, he formed the view:

"that the respondent had not acted promptly or expeditiously in this matter (and) was not concerned to ensure that my guilt or innocence was determined with a minimum of delay".

He cited as his reasons for coming to this conclusion the following:

"1.

Numerous H postponements of my trial had taken place due to the fact that investigations were not complete. Those members of the South African police who were investigating this matter appeared to have acted promptly and it would therefore seem that the failure to complete investigation is due to the respondent.

2.

No formal charge sheet has been furnished to my attorney which again is the result of incomplete investigations and which I again attribute to the respondent.

3.

Shortly after my suspension, I addressed a lengthy letter to the Superintendent of Baragwanath to which I received neither an acknowledgment nor a reply.

4.

My attorney was desirous of interviewing a member of the staff of Baragwanath or some other official who could provide some information as to the offences

Diemont JA

which I am alleged to have committed. My attorney was given the necessary permission by the police to have this interview. Pursuant thereto, my attorney telephoned the Superintendent of Baragwanath and was referred to an employee of the respondent A in Pretoria. When asked whether an interview could be arranged, my attorney was referred by this employee to another employee of the respondent who in turn informed my attorney that the information which was being sought could not be discussed nor given without the permission of yet another employee of the respondent. I submit that this indicates an unwillingness to co-operate on the part of those officials and employees of the respondent who are responsible for having the investigations against me completed timeously.

5.

B In terms of s 53 of the Hospitals Ordinance of the Transvaal the respondent has the right to have my alleged misconduct determined in the manner contemplated in that section. The respondent has not availed himself of his right in terms of...