Veriava and Others v President, SA Medical and Dental Council, and Others

• Judge: Boshoff JP and O'Donovan J
• Judgment Date: 30 January 1985
• Citation: 1985 (2) SA 293 (T)
• Court: Transvaal Provincial Division

Boshoff JP:

This application concerns specific complaints of alleged improper and disgraceful conduct on the part of the I fifth and sixth respondents, Drs Ivor Ralph Lang and Benjamin Tucker, respectively, both registered medical practitioners, which complaints had been lodged with the second respondent, the South African Medical and Dental Council (the council) and turned down by the council.

One Stephen Bantu Biko was arrested near Grahamstown on 18 August 1977, and detained at Port Elizabeth under s 6 of the J Terrorism Act 83 of 1967 until his removal to Pretoria where he died on 12 September

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1977. An inquest into his death was held before the A chief magistrate, Pretoria, Mr M J Prins, and two assessors, both professors of forensic medicine, at the conclusion of which they found that the cause or likely cause of his death was

"head injury with associated extensive brain injury, followed by contusion of the blood circulation, disseminated intravascular coagulation as well as renal failure with uraemia. The head injury was probably sustained during the B morning of Wednesday, 7 September 1977, when deceased was involved in a scuffle with members of the Security Branch of the South African Police at Port Elizabeth."

Drs Lang and Tucker were respectively a district surgeon and the chief district surgeon of Port Elizabeth and the conduct complained of related to their medical diagnosis and treatment of Biko over the period 7 - 11 September 1977 when he was C their patient, and their subsequent evidence at the inquest.

After the conclusion of the inquest proceedings, the chief magistrate, on 9 January 1978, purporting to act under the provisions of s 45 (2) of the Medical, Dental and Supplementary Health Service Professions Act 56 of 1974 (the Act), D transmitted that portion of the record of the inquest proceedings which contained the evidence of Drs Lang and Tucker and Hersch, a specialist physician, and Colonel Goosen of the Security Branch of the South African Police, to the council for its attention and explained that the evidence of Dr Hersch and Colonel Goosen was included because it cast some light on the E evidence of Drs Lang and Tucker.

Section 45 (2) provides as follows:

"Whenever in the course of any proceedings before any court of law it appears to the court that there is prima facie proof of improper or disgraceful conduct on the part of a registered person, or of conduct which, when regard is had to such person's profession, is improper or disgraceful, the court F shall direct that a copy of the record of such proceedings, or such portion thereof as is material to the issue, shall be transmitted to the council."

It is common cause that an inquest into the death of a person held under the provisions of the Inquest Act 58 of 1959, as amended, is not a court of law within the meaning of that expression in s 45 (2). For present purposes it is sufficient G to note that it had appeared to the chief magistrate and his two assessors from the evidence that there was prima facie proof of improper or disgraceful conduct on the part of Drs Lang and Tucker, or conduct which, when regard is had to their profession, was improper or disgraceful.

H On 20 December 1977, one E Roelofse, of the Ombudsman Office sponsored by the SA Council of Churches, in a letter to the registrar of the council, requested the council to take cognizance of the evidence given during the inquest into the death of Biko and expressed the view that the council could well be interested in establishing whether the conduct of the medical practitioners Drs Lang, Tucker and Hersch was in I conformity with the requirements of the council.

On 16 January 1978 he followed up this letter, with another letter in which he explained that the only interest which his office had in the conduct of Drs Lang, Tucker and Hersch was of a consumer nature, and drew the attention of the council to press clippings which he had enclosed in the letter and which reported the evidence which the practitioners had given at the J inquest. Only some of the evidence purported to be the

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A verbatim evidence of the witnesses. Roelofse, realizing that the reports might not be entirely accurate and complete, suggested in the letter that the official records of the inquest proceedings be used as a basis for the investigation of the council. He did not formulate specific charges or complaints against the practitioners but extracted from the B press reports a series of events in chronological order in which the practitioners were concerned in their professional capacity and then posed 14 questions in respect of Dr Lang and 13 questions in respect of Dr Tucker relating to the ethics and the professional standards of their conduct.

The president of the council, the first respondent in the C present application, nonetheless treated the matter as a complaint and directed the registrar of the council to refer it together with the portion of the inquest record to the Medical Committee of Preliminary Inquiry (the inquiry committee) appointed in terms of regs 19 (6) and 23 (6) of the Administrative Regulations, made by the Minister of Health in terms of s 61 (1) (a) of the Act and published under Government D Notice R2266 in Government Gazette 5349 of 3 December 1976. The inquiry committee is the fourth respondent in this application. He also directed the registrar to send copies of these documents to the practitioners, and to ask them for an explanation.

Dr Hersch in reply explained the part which he had in the E treatment of Biko. The State Attorney replied on behalf of Drs Lang and Tucker and asked that the matter be kept in abeyance pending the outcome of civil actions which members of the Biko family had instituted against the Government of South Africa and in which the two practitioners will be required to be witnesses for the Government. When the registrar insisted on an explanation, the State Attorney, on behalf of the F practitioners, adopted the attitude that the charges and complaints did not meet the requirements of reg 2 of the Regulations Relating to the Conduct of Inquiries held in terms of s 41 of the Act, made by the Minister of Health in terms of s 61 (1) (r) of the Act and published under Government Notice G R2268 in Government Gazette 5349 of 3 December 1976, which reads as follows:

"In a case of alleged improper or disgraceful conduct reported to the council, the person making the complaint or charge or allegation shall be required to furnish a written statement detailing in concise terms the specific acts complained of, and must be prepared, if so required by the council or its committees, to bring evidence in support thereof."

H One of the points he made was that in terms of this regulation the complainant was required (as a prerequisite of a request for an explanation) to detail in concise terms the specific acts complained of and that this he did not do in that he merely submitted a list of questions most of which were vague and embarrassing and which could not be construed as allegations of improper or disgraceful conduct. The State I Attorney asked that the practitioners be advised in clear terms of the exact nature of the complaints.

This was not done and the upshot of all this was that neither Dr Lang nor Dr Tucker offered the requested explanations.

The inquiry committee in the meantime submitted the portion of the inquest record and the correspondence received from J Roelofse to Dr M B J van Vuuren, a general practitioner of the Department of Household

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Medicine of the University of the Orange Free State, and to Dr A W M Guldenpfennig, a specialist neurologist of Pretoria, for their comments and they reported thereon.

On 24 April 1980 the inquiry committee considered the portion of the inquest record, the correspondence received from Roelofse, the correspondence received from or on behalf of Drs B Lang, Tucker and Hersch and the reports from Drs Van Vuuren and Guldenpfennig and resolved that the contents of the documents be noted and that no further action be taken.

A statement purporting to be issued by the inquiry committee to the press appeared in the South African Medical Journal of 17 C May 1980 and is to the effect that the inquiry committee had come to the conclusion that there was no prima facie evidence of improper or disgraceful conduct on the part of the practitioners and that it had resolved that no further action be taken in the matter. According to the statement the resolution of the inquiry committee would be submitted to the full council for confirmation at its forthcoming meeting in D October 1980.

A special and properly constituted meeting of the council was thereafter convened on 17 June 1980 to consider the recommendation of the inquiry committee together with the documents and any other evidence on which the inquiry committee relied in coming to its conclusion and, if the council so E decided, to adopt the resolution of the inquiry committee. At this meeting Professor Shapiro, seconded by Professor Charlton, moved as an amendment:

"(i)

That this council does not confirm the resolution of the medical committee of preliminary inquiry, as recorded in item 19 of the minutes of the meeting of the medical committee of preliminary inquiry held on 24 April 1980, in respect of Dr I R Lang and Dr B F Tucker.

(ii)

That there is prima facie evidence of improper or disgraceful conduct or conduct which, when regard is had to their profession, is improper or disgraceful, on the part of Dr I R Lang and Dr B Tucker and that an inquiry into their conduct be held.

(iii)

That the resolution in (ii) above be referred to the executive committee for the appointment of a disciplinary committee."

After discussion of the proposed amendment, the amendment was G put to the meeting and...