PROCEDURE AT INQUIRIES
South African Veterinary Council
Protocol for inquiries into professional conduct in terms of the Veterinary and Para-Veterinary Professions Act, no 19 of 1982
1.Duties of the Inquiry Body
The main duty of the Inquiry Body is to investigate the conduct of, or the complaint against registered members fairly.
In order to so fairly, members of the Inquiry Body must apply their minds properly to the evidence to establish the true facts.
"The principles of natural justice do not require a domestic tribunal to follow the procedure and to apply the technical rules of evidence observed in a Court of Law, but they do require such a tribunal to adopt a procedure which would afford the person charged a proper hearing by the tribunal, and an opportunity of producing his evidence and of correcting or contradicting any prejudicial statement or allegation made against him. The tribunal is required to listen fairly to both sides and to observe the principles of fair play. In addition to what may be described as the procedural requirements the fundamental principles of justice require a domestic tribunal to discharge its duties honestly and impartially."
The extent to which the Inquiry Body will be held to the rules of evidence and procedure depends on the circumstances of the case, the subject matter of the inquiry and the particular rule of procedure or evidence concerned. "The less technical that rule of procedure and evidence the more likely a tribunal will be held bound by it".
Section 33 of the Constitution requires that administrative decisions must be lawful, reasonable and procedurally fair. The Inquiry Body is obliged to made decisions that are rationally justifiable.
2.Conduct of members of the Inquiry Body
1.No member should have any material, pecuniary, direct or indirect personal interest in the outcome of the inquiry.
2.In questioning a respondent, members of the Inquiry Body should remain impartial and the questioning should not take the form of cross-examination. The purpose of questions or statements should be to clarify issues. The focus should exclusively be on achieving understanding to get the required information accurately and completely. If a preconceived attitude or state of mind can be inferred the decision of the Inquiry Body could be found to be invalid even if no injustice was proved.
3.An impartial attitude in speech, tone and body language should be maintained.
4.Neither hostility nor sympathy to the respondent implying a pre-judgment against or for the respondent should be shown.
5.During the inquiry and its adjournments members should refrain from discussing the merits of the matter with anyone but co- members serving on the Inquiry Body.
6.Members should reserve their opinions, discussions and arguments on the merits of the inquiry for deliberation in private.
7.Members should take notes of relevant evidence for later referral and judgment.
8.Members are to sign a final judgment sheet indicating whether or not they support a finding of guilty/ not guilty; and
9.If a member is unhappy with the decision/ judgment given by the Chairperson it should be dealt with in Committee first and if not resolved referred to Council before discussed outside of the Committee or Council.
3. Purpose of an inquiry
The purpose of an inquiry is to ascertain whether or not the conduct of a registered member amounts to unprofessional, improper or disgraceful conduct.
Unprofessional, improper or disgraceful conduct is defined in Section 33(8) of the Veterinary and Para-Veterinary Professions Act, no 19 of 1982 as follows:
" (a) the contravention of or the failure to comply with any provision of this Act or the rules;
a. becoming mentally or physically disabled to such extent that it would be detrimental to the public interest to allow him/her to continue practising his/her profession;
b. becoming unfit to purchase, acquire, keep, use, administer, prescribe, order, supply or possess any Scheduled substance as defined in the Medicines and Related Substance Control Act, 196 (Act No.101 of 1965), or using, possessing, prescribing administering or supplying any such Scheduled substance for purposes other than a medicinal purpose as defined in the said Act, or becoming addicted to the use of any such Scheduled substance; or
c. conducting him/herself, through any other act or omission in the opinion of the council unprofessional, improperly or disgracefully, even regard is had to his/her profession."
Judge Van Dijkhorst made the remark in the decided case of Nel v Suid-Afrikaanse Geneeskundige en Tandheelkundige Raad 1996 (4) SA 1120 (T) that in the absence of mala fides (bad faith), or fraud or inability to perform the professional services, a finding of disgraceful conduct would be difficult to justify.
4. Standard of care required.
A registered member is expected to exercise the degree of skill and care of a reasonably skilled practitioner in his/her field. It is not the highest possible degree of professional skill that is required, but reasonable diligence, skill and care. In deciding reasonableness regard will be had to the general level of skill and diligence possessed and exercised by members of the branch of the profession to which the practitioner belongs. A greater degree of skill is expected of a specialist than of a general practitioner.
The test is: how would a reasonably competent practitioner in that branch of veterinary practice have acted in a similar situation?
The setting of the required standard of professional honour is a subjective nature (determined by the members of the professions) and as it is a function entrusted by law to the Veterinary Council, a court will be slow to interfere with a decision honestly arrived at.
If a registered member were to fail in observing proper standards of care in examining a patient or if the person knows that he/she is not properly equipped at all to make a proper examination, and fails to refer the client to a colleague who is so equipped the registered member may be held liable.
How are factual findings made?
Factual findings are made on a preponderance of probability. Certainty of diagnosis is not necessary. If it were, then in a field so uncertain and controversial, a definitive finding would become impossibility.
In Stellenbosch Farmer’s Winery Group Ltd and Another v Martell et Cie and others 2003(1) SA 11 SCA the Court summarised the technique in resolving factual disputes as follows:
Findings have to made on
The credibility of the witnesses
This will depend on the impression about the veracity of the witness, which in turn will depend on the following (not in order of importance)
The witness’ candour and demeanour in the witness stand
The bias, latent and blatant
The probability or improbability of particular aspects of his version
The calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events.
This will depend apart from the bias, external contradictions and probabilities mentioned above, on:
the opportunities he had to experience or observe the event in question; and
the quality, integrity and independence of his recall thereof
This necessitates an analysis and evaluation of the probability and improbability of each party’s versions on each of the disputed issues.
In the light of the assessment of the abovementioned three factors the Inquiry Body should as a final step determine whether the party burdened with the onus of proof has succeeded in discharging it.
The difficult case is where the credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former (credibility) the less convincing the latter (probabilities). However, when all these factors are equipoised the probabilities will prevail.
To analyse and evaluate probabilities/ improbabilities the Inquiry Body considers the facts that are common cause (not in dispute) between the parties and the facts that are proved and tests the respective versions of the parties against these facts. If the probabilities favour the one or the other version a finding can be made. As the pro forma complainant has a duty to discharge the onus of proof, if the probabilities are equal, this onus is not discharged and the respondent must be found not guilty.
When the respondent is at risk of losing his/her livelihood the Inquiry Body will require a higher standard of proof.
5. Adverse findings
If witnesses are available to testify their failure to do so may justify an adverse inference against the party who fails to call such witnesses.
No adverse finding may be made against a person merely because s/he refuses to testify. However, if a prima facie case has been made out against the person there will be an onus to rebut this case and failure to do so may lead to an adverse finding.
6. Procedure to be followed at an inquiry
The Respondent is summonsed to appear on a date, time and place determined by Council and the summons informs the Respondent of the allegations that form the subject matter of the inquiry.
The procedure followed at an inquiry is set out in section 32 of the Veterinary and Para-Veterinary Professions Act, no 19 of 1982 read with rules 37 and 38 promulgated in terms of the Act.
" Rule 37: -
(1) In an inquiry into professional conduct held in terms of Section 31 of the Act the procedure shall be as follows -
(a) the respondent or, if he/she is not present, his/her legal representative shall be asked by the chairperson of the inquiry body to plead guilty or not guilty to the charge and that plea shall be so recorded;
(b) if the respondent, or his/her legal representative, refuses or fails to plea directly to the charge, this shall be recorded and a plea of not guilty shall be entered, and a plea so entered shall have the same result as if it had in fact been so pleaded;
(c) the pro forma complainant shall be given the opportunity of stating his/her case and of leading evidence in support thereof;
(d) the respondent shall thereafter be given the opportunity of stating his/her case and of leading evidence in support thereof;
(e) the inquiry body may, in its discretion, allow further evidence to be led or a witness to be recalled by either the pro forma complainant or the respondent or by both after their cases have been closed;
(f) after the parties have closed their cases, the inquiry body may in its discretion call further witnesses or recall a witness to be questioned by the members of the inquiry body and thereafter by the pro forma complainant and then by the respondent or his/her legal representative;
(g) after all evidence has been given, the pro forma complainant shall be allowed to address the inquiry body on the evidence and the legal position;
(h) thereafter the respondent shall likewise be allowed to address the inquiry body, whereafter the pro forma complainant shall be allowed to address the inquiry body in reply;
(i) after the evidence of a witness has been given, the opposing party shall be entitled to cross- examine the witness, whereafter the chairperson of the inquiry body may put questions to the witness and allow other members of the inquiry body to put questions to the witness;
(j) before re-examination, further cross-examination shall be allowed arising from questions put by the chairperson and other members;
(k) the person who led the evidence shall thereafter be entitled to re-examine the witness, but shall confine his/her re-examination to matters on which the witness was cross examined or on which the chairperson or other members put questions to the witness;
(l) if the respondent and his/her legal representative are not present at the inquiry into professional conduct, it shall proceed in the respondents’ absence and a plea of not guilty shall be entered, unless the respondent has in writing pleaded guilty to the charge against him/her, in which event it shall be entered as his/her plea;
(m) all oral evidence shall be taken on oath or affirmation by the chairperson of the inquiry body;
(n) evidence on affidavit shall be admissible: Provided that the opposing party may object to such evidence if he/she is not given the opportunity of cross-examining the witness.
(2) Upon the conclusion of a case the inquiry body shall deliberate thereon in camera.
(3) If the respondent is found not guilty of the charge against him/her, he/she shall be advised accordingly.
(4) The inquiry body may make a finding of not guilty even if the respondent has pleaded guilty.
(5) If the inquiry body has, regarding any charge, determined that sufficient facts have been proved to its satisfaction to support the charge, it shall decide whether the charge so supported constitutes unprofessional, improper or disgraceful conduct and it shall announce its finding.
(6) If the respondent is found guilty the pro forma complainant shall furnish details to the inquiry body of previous convictions of the respondent under the Act, if any and may address the inquiry body and lead evidence regarding a suitable penalty to be imposed.
(7) The witnesses concerned may be questioned by the respondent and members of the inquiry body.
(8) The respondent may thereafter address the inquiry body and adduce evidence in mitigation of the penalty to be imposed and the witnesses concerned may be questioned by the pro forma complainant and members of the inquiry body.
(9) Thereupon the inquiry body shall deliberate in camera upon the penalty to be imposed, and the chairperson shall then inform the respondent of the inquiry body's decision regarding the penalty.
Rule 38 Consideration by the Council
(1) In the event of a penalty being imposed by an inquiry body, the respondent shall be entitled to make representations to the Council regarding the exercise of its discretion.
(2) Such representations shall be made by the respondent himself or by his/her legal representative only in the form of a written memorandum addressed to the Registrar for submission to the Council.
(3) The Registrar shall receive all representations before a date which the chairperson of the inquiry body shall announce at the time of the communication referred to in paragraph 37(9).
(4) After receipt of a representation in terms of paragraph 38 (2), the Council may vary, confirm or refuse to confirm the finding of an inquiry body or may refer the case to the inquiry body for further consideration and report.
(5) The finding and the penalty (if any) imposed by the Council on the respondent shall be communicated to the parties concerned, immediately thereafter either by the Registrar or at a later date in a letter as the Council may direct."
7.Rules of Evidence
Only evidence as to any fact, matter or thing, which is relevant or material, which can prove or disprove any point or fact, shall be admissible. Unsworn statements, irrelevant to the charges should not be admitted into the record.
Proof of law
Judicial notice shall be taken of any law or government notice, or of any other matter, which has been published in the Government Gazette, and needs not to be proved. A copy of the Gazette, or a copy of such law, notice or other matter shall on its mere production be evidence of the contents of such law, notice or other matter, as the case may be.
Documentary evidence as to facts in issue
Where direct oral evidence of a fact would be admissible, any statement made by a person in a document to establish that fact shall on production of the original document be admissible as evidence of that fact, provided –
1. The person who made the statement had personal knowledge of the matters dealt with in the statement; and
2. The witness is called as a witness in the proceedings unless he/she is dead or unfit by reason of his/her bodily or mental condition to attend as a witness or is outside the Republic, and it is not reasonably practicable to secure his/her attendance or all reasonable efforts to find him/her have been made without success.
The presiding officer may, if having regard to all the circumstance of the case, if he/she is satisfied that undue delay or expense would otherwise be caused, admit such a statement as evidence in the proceedings
notwithstanding that the person who made the statement is available but is not called as a witness
notwithstanding that the original document is not produced, if in lieu thereof there is produced a copy of the original document.
Weight to be attached to evidence
In estimating the weight to be attached to a statement admissible as evidence regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the person who made the statement had any incentive to conceal or misrepresent facts.
Hearsay evidence means evidence, whether oral or in writing, of which the probative value depends upon the credibility of any person other than the person giving such evidence.
As a general rule hearsay evidence shall not be admitted as evidence unless –
a) Each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;
b) The person upon whose credibility the probative value of such evidence depends, him/herself testifies as such proceedings; or
c) The Inquiry Body is of the opinion that such evidence should in the interest of justice be admitted, having regard to -
i. the nature of the proceedings
ii. the nature of the evidence
iii. the purpose for which the evidence is tendered;
iv. the probative value of the evidence
v. the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends,
vi.any prejudice to a party which the admission of such evidence might entail.
Hearsay evidence may be provisionally admitted if the Inquiry Body is informed that the person upon whose credibility the probative value of such evidence depends, will him/herself testify in such proceedings. If such person does not later testify in such proceedings, the hearsay evidence shall be left out of account unless the Inquiry Body admits the evidence in the interest of justice.
After a respondent has been found guilty of unprofessional, improper or disgraceful conduct the Inquiry Body owes a duty to the public in meting out an appropriate sentence.
The disciplinary powers of council are set out in section 33 of the Veterinary and Para-Veterinary Professions Act.
The following factors should be taken into account when deciding on an appropriate sentence:
The respondent’s personal interests
Whether or not the complainant suffered any damages
The interests of the community
Whether or not the good name of the profession has been brought into disrepute by the respondent’s conduct
The general level of care and concern shown for welfare of animals which was the cause of the complaint