Animal Health Technician



 The SAVC wish to clarify what the facts are behind the questioning of the procedure followed by the Investigation Committee and the Inquiry Body:  

  • The Veterinary Defence Association [VDA] has been advising respondents to complaints not to divulge any information pertaining to complaints investigated by the SAVC;
  • The result of this advice is that complaints are screened by the Investigation Committee of Council with only one version (the complainant’s) of the events before it;
  • Complaints cannot be screened with only one version of the events; 
  • The audi alteram partem rule has to be followed (hear both sides of the case);
  • The result of the VDA’s advice is that all the complaints in which the VDA represents the respondent have to be referred to an inquiry merely to obtain the respondent’s version of the events;
  • The implication in terms of funding these inquiries is large.  The basic expenditure for one inquiry varies between R 16 000 and R 20 000.  This whilst the information could have been provided without having incurred these costs; 
  • There is a difference between a criminal process and an administrative process the latter is followed when professional conduct is investigated;
  • The High Court ruled in favour of the SAVC with regard to the submission of the relevant clinical records, which had been opposed by the VDA.  Please refer to the outcome of the ruling also published herein below.  

What needs to be done in order to take the current disciplinary

process under review should any person question the process

executed in terms of the existing statutory provisions ?

 “To approve the recommendations of Senior Counsel as follows: - 

§           Council does not have the power to make a decision regarding the validity of its statutory disciplinary process and procedures and the same applies to any Inquiry Body of Council;

§           Cognisance is taken of the fact that Mr Carser was specifically given two months by the Inquiry Body in the matter of Dr” “...” ”... on 2 June 2004 to take the necessary steps regarding the validity of the disciplinary process and procedures of Council, which of necessity implied taking the matter to the High Court, but that he failed to take such steps,

§           Mr Carser and the VDA would not be allowed to raise the issues regarding the validity of Council’s disciplinary process and procedure again at any Inquiry Body or with Council until he/they has/have taken the necessary steps to take the issues to the High Court of South Africa on review and until such issues have been determined by the High Court or Constitutional Court.

§           In the absence of a finding by a court of law regarding the validity of Council’s disciplinary process and procedure and an interdict to stay disciplinary hearings, such hearings will continue in accordance with the existing statutory provisions;

§           Council members and members appointed to serve on Inquiry Bodies be informed of the decision of Council; and

§           Mr Carser and the VDA be informed of the decision by Council.     (2.06.2005)”;

The decision to place this information on the SAVC's website was promted by the advises published by the VDA.



LOM Business Solutions t/a Set LK Transcribers/HvR




In the matter between









This is an application for what I accept to be the intention namely a declaratory order that rule 26(5) of the rules relating to the practising of veterinary professions which was promulgated in the Government Gazette number 7253 of 18 January 2002, under the provisions of the Veterinary and Para-Veterinary Professions Act 19/1982 be declared unconstitutional. There is also a prayer for costs against the respondent. In the event of course of the application succeeding.

It is only this one subrule that is the target of the applicant’s attack. The applicant describes itself as a section 21 non-profit association which has been duly registered in accordance with the company laws of this country. There is no dispute about the locus standi of the applicant to have launched this application.

According to the applicant’s allegations, in paragraph 10 of the replying affidavit, the applicant is a so-called defence organisation, whose purpose is to arrange professional indemnity insurance cover for its members to assist them with the defence of complaints of unprofessional conduct made against its members to the respondent and to assist counsel appointed to defend civil actions where it is alleged that the members, the applicant’s members have acted negligently.

It also appears from the papers, that the deponent to both the founding affidavit and the replying affidavit, of the applicant Mr Carser is an admitted advocate who has on occasion appeared on behalf of members of the applicant before disciplinary tribunals constituted by the respondent to hear complaints and charges of unprofessional conduct on the part of veterinary practitioners.

The case briefly summarised as I understand it, that the applicant has sought to make out in the founding affidavit, is that this particular subrule of the respondent is unconstitutional because it is used as Mr Bezuidenhout, who today appeared on behalf of the applicant has put it, as a weapon and I can add, so to speak to terrorise the members of the applicant who of course, will also be members of the respondent.

The respondent is of course the professional body charged with the task to which I will allude later on, to see that members of it practice on an acceptable basis and according to acceptable norms. It is referred to in the papers as the custos morum of the profession of veterinary practitioners.

The complaint lodged in the founding papers, is that the respondent in the event of a complaint being lodged against a member of the applicant, by a client of such a member, then starts its investigation with a view to establish whether or not the complaint can be substantiated. If so, a charge of unprofessional conduct is then brought in against the member. If not, then the matter does not proceed any further.

As part of its investigation, the respondent then requires the member the veterinarian practitioner, to also submit his records to the investigation committee. A copy of a letter has been annexed to the founding affidavit which has been described as a standard letter which is sent out to the practitioner by the respondent in the event of a complaint being lodged by a client of the practitioner against him.

At the foot of this standard letter, the following paragraph appears:

“Furthermore in terms of rule 26(5) you are requested to immediately forward your records that relate to the complaint to our office.”

The founding affidavit then alleges that those records which a practitioner is required to keep, is then scrutinised minutely by the committee of the respondent which investigates the complaint and the outcome of that is that the practitioner is then also charged with a contravention of the rules of the respondent relating to the keeping of proper records.

What in fact happens, is that in the event of it being found by the investigation committee that the complaint is substantiated or can be substantiated, the member, the practitioner is then charged with that offence, for instance, that he did not properly treat the patient and apart from that he would also be charged with a second of a further charge relating to the keeping of the records.

Those records according to the founding affidavit, is also used during the disciplinary inquiry which then follows on the investigation of the complaint to cross-examine a practitioner on the keeping of his records. I think the message that it is intended to convey is that that has actually nothing to do with the complaint about his professional conduct in treating the patient, but be that as it may, he now also has to face this additional complaint and to stand to be cross-examined in detail about the keeping of his records. That is what the complaint presently is about.

The allegation is then also made in paragraph 15 of the founding affidavit, that despite the fact that an incorrect or inadequate diagnosis or treatment does not necessarily indicate unprofessional conduct or negligence, which I think can be accepted in principle as correct, the respondent then proceeds:

“…automatically convicts the applicant’s members upon proof that the applicant’s member made an inadequate or incorrect diagnosis or treatment without further inquiry.’

That happens and is based on the keeping of the records. In paragraph 17 of the founding affidavit, it is stated that at the stage when the inquiry, the disciplinary inquiry takes place the disciplinary body is in possession of much more fact and circumstances than were available to the member at the time that he treated the patient.

That I think according to what the complaint, the present complaint is all about, is intended to convey that the practitioner is placed in a rather unfair situation viz a viz the inquiry tribunal. In paragraph 17.2 it is specifically alleged that:

“These are facts and information that the applicant’s member did not have the benefit of when he or she first examined or treated the patient.”

In 17.3 it is alleged that:

“The applicant’s member’s records reflect this lack of knowledge and leave him or her open to unfair criticism.”

In 17.4 it is alleged that:

“This results in the unfair conviction of the applicant’s member and the violation of the applicant’s member’s right to fair administrative action taken by the respondent.”

That, as I understand the papers, seems to be the gist of the complaint.

It is also alleged in paragraph 13 that in the event of a member refusing to provide ‘self incriminating evidence’ i.e. the records to the respondent, the respondent would then charge the member with unprofessional conduct for having refused to do so. It is stated that:

“The respondent does so even in the absence of a prima facie case against the applicant’s member”

One’s first reaction to all these complaints would be that what the complaint is really all about is that the respondent abuses from time to time the power which it has to call on the practitioner to provide its records to the respondent.

Be that as it may, I will approach it on the basis as Mr Bezuidenhout has submitted that the applicant has decided to attack the existence of the weapon, so to speak, namely the power to request the records to be submitted to the respondent and not only to complaint about the use of the weapon from time to time.

In this regard, Mr Bezuidenhout also relied on what is alleged in paragraph 58.8 of the answering affidavit, which reads as follows:

“If during this process (the investigation stage) it appears to the respondent or its investigation committee that the veterinary professional involved has failed to comply with the specific provisions of rule 26 regarding the maintenance and retention or records a decision would be made whether this provides grounds for unprofessional conduct. If so, the veterinary professional is charged with a failure to keep proper records in contravention of rule 26.”

That supports what the applicant is complaining about, submitted Mr Bezuidenhout.

The foundation as to why this subrule should be held to be unconstitutional, is to be found expressly spelt out in paragraph 4 of the replying affidavit as well as paragraphs 27 of the replying affidavit. In paragraph 4 of that affidavit, it is expressly stated that the applicant relies on firstly section 33 of the constitution which deals with just administrative action, secondly the Promotion of Administrative Justice Act 3/2000 which was enacted pursuant to section 33(3) of the constitution, thirdly on the right to be presumed innocent and to remove silent which is a right enshrined in section 35(3)(h) of the constitution and lastly the right not to be compelled to give self incriminating evidence which is enshrined in section 35(3)(j) of the constitution of 1996.

In the very next paragraph, paragraph 5 of the affidavit, it is stated that rule 26(5) violates the rights of the applicant’s members by forcing them to provide their clinical records which are used by the respondent to convict them of unprofessional conduct. The rule therefore violates their rights to firstly to be presumed innocent, a right enshrined in the constitution, section 35(3)(h); and also the right to remain silent which has been enshrined in the same sub-paragraph of the section 35(3) of the constitution; thirdly the not to be compelled to provide self incriminating evidence enshrined in the sub-paragraph already referred to; and lastly fair administrative action ‘by forcing the applicant’s members to provide the evidence contained in the rule 26(5).

The response of the respondent to all this, has been firstly, that the minister of agriculture should have been joined as a party, there is therefore a non-joinder of an interested party. Secondly, that no proper case has been made out in the founding papers for the relief claimed and on that basis alone, the application ought to be dismissed. Thirdly as far as the so-called merits are concerned, that in the light of what is contained in the answering affidavit, the court ought to find that the rule is not unconstitutional and lastly and in the alternative to the third line of defence, that there is an acceptable lawful limitation of the rights relied on by the applicant, about which the papers complaint that has been and is being and are being violated by the conduct of the respondent.

Mr Stroh, how today appeared on behalf of the respondent also submitted in his written heads of argument, as well as his oral argument that in so far as there may be a dispute on the papers between allegations contained in the founding papers and those in the answering papers of the respondent, the approach laid down in the well known Plascon Evans case, must be followed by this court, namely to accept what the respondent has said and that has to be done on the basis thereof that the allegations by the applicant in the founding papers are unsubstantiated and bald, whereas the respondent has shown in detail and by chapter and verse, why it takes a certain stand.

I think as far as that is concerned, that Mr Stroh’s argument is correct. It is a fact in my view, and it is so that many of the pertinent allegations in so far as they are relevant to the case sought to be made out by the applicant in the founding papers, have not been substantiated as Mr Stroh put it, by reference to examples as to what had happened in the past and how the respondent applies the subrule in practice.

Especially in regard to the allegations contained in paragraph 15.2 of the founding affidavit, that the respondent automatically convicts the applicant’s members, on the basis of the records, Mr Stroh submitted that no substantiating evidence has been furnished to substantiate what has there been alleged and that is an example, if not the prime example of bald and unsubstantiated allegations.

That of course has been denied by the respondent and that is why Mr Stroh correctly, in my view, submitted that in so far as there may be disputes on the papers that I should accept what the respondent have said in its answering affidavit. I will certainly do that where it becomes necessary.

As far as the joinder of the minister of agriculture is concerned, the point was raised on the basis that in terms of the relevant section of the act, namely section 30 of Act 19/982, which provides that the respondent, the council, may make rules as to inter alia:

“…the course of conduct to be followed by persons practicing a veterinary profession or a para-veterinary profession…”

And also:

“Any matter which the council deems necessary or expedient for the achievement or promotion of its objects, or for the exercise of its powers or for the performance of its functions…”

Those rules which the council can make and which is it had made, is in terms of subsection 3 of no force and effect until approved by the minister and published in the gazette by the registrar.

Mr Bezuidenhout countered that argument, because the minister was in actual fact not joined as a party to these proceedings by submitting that in terms of the uniform rules of court, namely rule 16A, the notice prescribed by that rule was displayed on the notice board of the court, inviting interested parties to intervene in the matter and to take part in the proceedings.

In any event, submitted Mr Bezuidenhout, that minister does not have any real interest in the manner how the respondent administers the rules and enforces the rules. There is really nothing that the minister can add to the whole debate. The point was not abandoned by Mr Stroh.

I have my doubts about the effectiveness as far as the minister is concerned, of compliance with rule 16A of the uniform rules of court, but be that as it may, that has been done. I am more inclined to agree with the submission that the minister does not have any real interest in what is presently before the court. The point of non-joinder is therefore in my view not a point which would have a fatal effect on the application as such.

As far as the other aspect is concerned, namely that no proper case has been made out in the founding papers, alternatively that in so far as the applicant has tried to make out a case for the relief which it seeks, those two points were dealt with simultaneously by both counsel in their addresses to me and also in their written heads of argument in so far as it may have been relevant.

I prefer to treat the two together and not to separate the two aspects, because I was also asked to deal with the merits in particular, because of the importance of this case to the respondent. It does appear that this case is fairly important to the respondent because it is stated in the papers that in the past, Mr Carser on behalf of the applicant, has on numerous occasions taken the point that the whole system of disciplinary inquiries is unconstitutional, that has led to a delay in the finalising of disciplinary inquiries.

Mr Carser was given the opportunity to approach a court for the necessary relief which he did not do. He says in the replying affidavit that an application was launched at some stage, but that that application was abandoned for reasons which are not relevant to the present litigation. So that the fact of the matter is that the present application before court, is the only one that has resulted from this dispute that has existed for quite some time between the parties and it is then also limited to the one subrule of the rules of the respondent.

The respondent as I have said, is the professional body charged with the duty to ensure that its members practice the profession according to acceptable norms. It appears from the act itself, that before a person can practice the profession of a veterinarian, he has to be registered with the respondent. In section 3 of the act, the objects of the respondent are spelt out. I think for present purposes it is only necessary to refer to the content of sub-paragraphs C, D, F and G of section 3 of the act.

Sub-paragraph C reads as follows:

“C. To exercise effective control over the professional conduct of persons practicing the veterinary professions and para-veterinary professions.

D. To determine the standards of professional conduct of persons practising the veterinary professions and para-veterinary professions.

E. To encourage and promote efficiency in and responsibility with regard to the practice of the veterinary professions and para-veterinary professions.

F. To protect the interests of the veterinary professions and para-veterinary professions and to deal with any matter relating to such interest.

G. To maintain and enhance the prestige, status and dignity of the veterinary professions and para-veterinary professions and the integrity of persons practicing such professions.”

In my view, it has therefore rightly been said in the answering affidavit that the respondent is the custos morum of the profession.

Section 12 of the act makes provision for the establishment of committees of the council. That is why the council has established committees to investigate a complaint and according to the answering affidavit if it becomes necessary, then a disciplinary committee is also constituted and established for the purposes of the disciplinary inquiry which then takes place according to what is prescribed in the regulations governing that particular aspect.

I do not think it is for present purposes necessary to refer to the detail of all the allegations relative to this issue, contained in the answering affidavit. It suffices to say that on what has been explained there by the president of the respondent, I think it is rightly said that it resembles that the procedure adopted at these disciplinary inquiries resembles the procedure that takes and that is followed in a court of law when a matter is tried in court.

Of more importance for the present purposes, are the provision of section 30 of the act. That section as I have already indicated, provides that the respondent may make rules. These relevant rule for present purposes, namely rule 26, is repeated in paragraph 33.3 of the answering affidavit. Rule 26(1) is to the effect that a practitioner:

“Shall maintain records for each animal of or group of animals which are legible, accurate and permit prompt retrieval of information.”

In subrule 2 it is provided that the records shall where applicable contain the following information and then a list of aspects that ought to be dealt with in those records, are given. One of those aspects relates to the clinical information, I think that it can be accepted of the patient of the animal that was treated by the practitioner. The subrule also provides for information about the vaccination records, the special procedures, the diagnosis, the treatment and discharge instructions that were given by the practitioner. Subrule 4 provides as follows:

“All records including diagnostic images, laboratory and pathology results shall be retained by the principle of the veterinary facility for a period of three years from the patient’s last visit.”

Then follows subrule 5, which is being attacked in the present proceedings. That subrule reads as follows:

“Records referred to in rule 26(4) relating to a complaint, charge or allegation lodged with the council in terms of section 31(1) of the act, shall be presented to council on request.”

For purposes hereof, I will accept what the applicant has alleged, namely that the records are requested without exception in case a complaint has been lodged with the respondent.

As far as subrule 5 is concerned, one also has to refer in my view, to the provisions of section 31 of the Act 19/1982. Subsection 1 of that section reads as follows:

“The council may, either as a result of a complaint or charge or allegation lodged with it, or of its own accord institute an inquiry into the conduct of a person who is registered or deemed to be registered in terms of this act, or into an act or omission or alleged act or omission by such person in the practicing of his or her profession, or into a contravention or alleged contravention of this act, or the rules by such person.”

The importance of this section is that it shows unquestionably the wide import of the powers of the respondent to institute disciplinary inquiries against a member of the respondent.

In so far as it may happen in practice, that in most of the cases the practitioner is charged with a contravention of the rules, for not having kept proper records, that of course would be covered by the last phrase of section 31 of the act.

Section 32 and in particular subsection 3, is also in my view relevant in this context. Section 32 deals with the procedure to be followed at such a disciplinary inquiry. Subsection 3 then provides as follows:

“The council may for the purposes of such inquiry:

(a) Summon in the prescribed manner any person who in the opinion of the council, is able to furnish information of material importance to the inquiry, or who the council has reason to believe has in his or her possession of custody or under his or her control any book, document or record relating to the subject of the inquiry, to appear at a time and place specified in the summons to be examined or to produce such book, document or record and may retain for examination any book, document or record so produced.”

In terms of sub-paragraph (b) of this subsection, the person presiding at the inquiry may administer an oath to a person present at the inquiry, having examined or caused him to be examined, and:

“Instruct him or her to produce any book, document or record in his or her possession or custody or under his or her control.”

This also shows the wide powers that the respondent has when for the purposes of instituting and conducting a disciplinary inquiry. It effects also a person who may merely be present at the inquiry, if he or she is in possession of any book etcetera, the respondent may pursuant to the provisions of 32(3)(b) of the act, obtain insight into those books or records in the possession of such a person.

Subsection (5) of the section provides for privilege, that may be raised as an excuse by a witness who was summoned to give evidence or to produce a book or document and the subsection provides that the privilege which is available in a civil trial before a court of law, shall mutatis mutandis apply in relation to the examination of the production of any book or document etcetera.

That section of course, provides a form of protection in regard to books and documents that the council may wish to have sight of. Be that as it may, the importance of this subsection and section 5 is according to Mr Stroh, that it bestows certain powers on the respondent and it makes no sense that the applicant has merely targeted rule 26(5) without also having targeted section 32(3) of the act.

The ambit of the subsection according to Mr Stroh, is so wide that it also empowers the respondent to subpoena a practitioner who stands trial so to speak, in a disciplinary inquiry to produce his books etcetera. Mr Bezuidenhout disputed that. It is not necessary I think for present purposes to decide that issue. I will accept for the present purposes that a so-called accused person, a practitioner who has been charged in a disciplinary inquiry does not fall within the ambit of that section.

Be that as it may. To return to rule 26, one sees by reading through the various subrules actually what the purpose of the rule is. It sets out in the first instance, certain norms according to which the council expects a practitioner to practice in accordance with. That I think the council is entitled to do in terms of section 3 of the act.

In the answering affidavit and in particular in paragraph 37 thereof, the respondent has set out the reasons why rule 26 plays such an important role in the function of the respondent in maintaining proper standards in the profession and ensuring that practitioners practice according to those norms.

A fairly large number of reasons have been set out. I do not intend to deal with all of them or to refer to all of them. It suffices to say that this paragraph in particular affords one an insight into the function that rule 26 plays in the whole context of the respondent being able to maintain proper standards of practice in the profession.

So for instance, it is stated in paragraph 37.5 that the rule is important because it enables the council, the respondent, to oversee the professional conduct in a veterinary practice. The paragraph reads as follows:

“The keeping of adequate medical records is considered by council to be an essential component of professional conduct in veterinary practice.”

It should be one would be inclined to think, an essential component because then the council is in a position to ascertain whether a practitioner has complied with what is expected of a practitioner in any given situation.

These records as Mr Stroh has referred to them, are contemporaneous records of what a practitioner did and prescribed etcetera, in any particular instance. The importance and the relevance of such a record, as Mr Stroh rightly in my view submitted, is for the council to check whenever a complaint is lodged, maybe a year or two or three after he had treated the patient, whether the treatment conformed to the standard that the council expects of a practitioner.

A further reason is stated for instance in paragraph 37.8 of the answering affidavit in the following words:

“In a veterinary practice where there is more than one veterinary professional it enables continuity of clinical assessment and treatment of a patient by another veterinary professional in that practice.”

That should necessarily be so and I accept the correctness of what has there been stated. In the same line or in the same vein, paragraph 37.9 reads as follows:

“In the case where a patient is referred to or is attended by an veterinary professional from another practice, it again enables continuity of clinical assessment and treatment of the patient by such other practice or very professional.”

I also accept that as correct. Paragraph 37.10 in my view, also sets out an important reason for requiring practitioners to keep proper records. It is stated in that paragraph that in the case of litigation and in the case of a disciplinary inquiry:

“The medical records of the veterinary professional is of the utmost importance. It is a contemporaneous record of the veterinary professional’s management and treatment of a patient.”

Later on in the paragraph, it is said that:

“There is a high degree of probability that the notes reflect the correctness and true position of the events and steps recorded. In the event of a law suit or a disciplinary inquiry these medical records will often be the veterinary professional’s first line of defence.”

That will necessarily be so, if a fairly long period of time has elapsed since the treatment of the patient and the date upon which it becomes necessary for the practitioner to relate to either a court or a disciplinary inquiry, what his treatment entailed.

It cannot humanely be expected of a practitioner and least of all of a busy practitioner to remember after a year or eighteen months or two years, what precisely the treatment of a particular patient entailed. I therefore agree with what has been set out in these sub-paragraphs that I have referred to so far.

I also think that in paragraph 37.11 and 37.12 acceptable reasons have been set out as to why the council requires practitioners to keep proper records. It is there stated that the keeping of records is primarily a preventative measure to assist and protect veterinary professionals rather than constituting a basis for a malpractice suit or disciplinary steps.

In this regard, the point has also been made in the answering affidavit, that in some instances when a practitioner has furnished an explanation to the council in response to a complaint and has furnished his records to the council, the committee investigating the complaint, it happens that the committee, the investigation committee is persuaded that the practitioner has not done anything wrong. In those instances the records then also serve as a method or a means to explain and convince the complainant that the practitioner has not acted in an untoward manner.

If the complainant, the client is dissatisfied in such an event, the client may take the matter further to the council itself. In paragraph 37.18 the following is stated:

“It is submitted that the requirement by the respondent that veterinary professionals maintain and retain proper and complete medical records, is an important measure to achieve its objects of exercising effective control over the professional conduct of veterinary and para-veterinary professionals and to determine the standards of profession conduct of such professionals. The necessity for the respondent and its investigation committee, having the right to require a veterinary of para-veterinary professional to produce his or her records is apparent.”

In paragraph 39 the following is stated:

“The only way of ensuring that veterinary and para-veterinary professionals adhere to the requirement of proper record keeping, set out in rules 26(1) and (2), is a rule enabling the respondent to request these records from the veterinary professional especially where they relate to a complaint, charge or allegation lodged with the respondent.”

There is no reason why I should not accept what has been stated to be the reasons for the existence of rule 26.

Turning to the complaints of the applicant, namely that the use by the council of rule 26(5) to obtain insight in the records of a practitioner, violates the rights mentioned in the papers of the applicant, Mr Stroh has submitted that none of the sections relied on in the papers can be of any assistance to the applicant.

As far as the Bill of Rights is concerned and the rights enshrined in section 35 thereof, Mr Stroh submitted that those rights are only available to a person in the context of criminal proceedings. Section 35 of the constitution of 1996, is divided into three subsections which individually deals with the rights of persons in the criminal law context. Section 35(1) relates to:

“Everyone who is arrested for allegedly committing an offence.”

His rights, which are then enshrined are set out in a number of sub-paragraphs of that subsection. Evidently that subsection does not apply to a practitioner who is being charged disciplinary by the respondent.

Subsection (2) of section 35 of the constitution of 1996, deals with the rights of a person:

“Who is detained including every sentenced prisoner.”

In my view, that section also does not relate and is not relevant to the situation of a member of the respondent who is being charged disciplinary or against who a complaint is investigated.

Section 35(3) deals with the enshrined rights of “Every accused person.” Mr Stroh, I think is correct in submitting that these rights relate only to the position of a person in the criminal law context. In this regard, Mr Stroh has also referred me to various passages in the judgment of the Constitutional Court in the matter of Ferreira v Levin N.O. and Others, Vryenhoek and Others v Powell N.O. and Others, 1996 (1) SA 984 CC.

At page 1011 in paragraph 41 of the report, Ackerman dealt with the so-called section 25(3) rights and the learned Justice said the following in regard thereto:

“The section 25(3) rights accrue textually only to ‘every accused person’. They are rights which accrue in the subjective sense when a person becomes an ‘accused person’ in a criminal prosecution. The examinee (in an examination under the Companies Act) is not such an ‘accused person’.”

The learned Justice then deals with this matter further in the paragraph and decides or holds that whether or not such a person’s section 25(3) rights have been infringed will only become evident at the time when he is charged. Because of that, said the learned Justice:

“The inescapable conclusion therefore is that section 417(2)(b) (of the Companies Act) does not constitute an infringement or threat of infringement of any section 25(3) rights of the applicants, and that their attack on section 417(2)(b) on this basis can accordingly not succeed.”

To the same effect, I think, is the judgment of Kriegler J and in particular what the learned Justice had to say in paragraph 195 of the judgment at page 1094 C-D of the report. The learned Justice inter alia said the following:

“The crucial point is that no witness subpoenaed to testify at a section 417 inquiry, can at that stage possibly formulate allegations essential for relief based on fair trial provisions. (Section 25(3) of the Constitution). And if the witness cannot bring the case within those provisions, I see nothing in the Constitution that avails. There simply is no general prohibition against self incrimination to be found anywhere in the Constitution, nothing express and nothing implicit. It is only if and when the production of evidence contained, pursuant to a section 417 inquiry jeopardises the fairness of the trial, that the Constitution can be invoked.”

On that basis, submitted Mr Stroh, the rights relied on by the applicant in the founding papers and also the replying affidavit cannot be of any assistance to any member of either the applicant or the respondent in the event of such a member being charged at disciplinary.

As far as the right to fair and lawful administrative action is relied on in the papers by the applicant, Mr Stroh submitted that the rule should not be seen in isolation but in the context of section 33 of the Constitution which provides that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. It is then provided in subsection (3) that national legislation must be enacted to give effect to these rights.

Such legislation was indeed promulgated and we find that legislation embodied in Act 3/2000, the Promotion of Administrative Justice Act of 2000. Mr Stroh submitted that one cannot attack rule 26(5) in isolation and apart from section 33 of the Constitution and the relevant provisions of the Promotion of Administrative Justice Act or PAJA as this act is also commonly referred to.

The basis for this submission was that a disciplinary inquiry is of course an administrative procedure in terms of P.A.J.A. If one wants to attack a provision applicable in such a procedure, one has to do that pursuant to the relevant provisions of Promotion of Administrative Justice Act. I think that there is merit in that submission of Mr Stroh.

The outcome of all of this, in my view is as Mr Stroh has argued the applicant has misconceived its remedy. It has not made out a case on the papers that the manner in which the council uses rule 26(5) or the mere existence of that subrule, amounts to a violation of any of the rights relied on by the applicant in its papers.

Mr Bezuidenhout submitted that the same principles embodied in section 35 of the Constitution, also applies to a disciplinary inquiry which is an administrative procedure. The only authority that I know of for that submission is to be found in paragraph 96 of the judgment of Ackerman J, in the Ferreira matter. In that part of his judgment the learned justice was leading with the right against self incrimination enshrined in the Constitution, or at least the interim Constitution which for all practical purposes, was reinacted in the Constitution of 1996.

In paragraph 96 of his judgment, the learned Justice started off by saying that in South African law:

“The privilege is not limited to criminal or civil trial proceedings, because ‘it is an established principle of our law that no one can be compelled to give evidence incriminating himself. He cannot be forced to do that either before the trial or during the trial.’”

Later on in the paragraph the learned Justice referred to the learned authors Hoffman and Zefert, the authors of the well known textbook, the South African Law of Evidence, 4th Edition, which was the predecessor of the present, The South African Law of Evidence by Zefert Payses and Skene, who:

“…also point out that the privilege may be claimed in administrative or quasi judicial hearings.”

I think that Mr Stroh was correct in pointing out that that has only been held to be the position by Ackerman J in the Ferreira case and not by the majority judgment delivered by Chaskelson P, at that stage.

Be that as it may, even if it is accepted for present purposes that the rule or the privilege against self incrimination also applies in administrative proceedings like disciplinary inquiries, I think that the discussion of this particular aspect has been dealt with fairly authoritatively by the authors of the textbook already referred to, the South African Law of Evidence by Zeffert, Payses and Skene at pages 546 and 547.

It appears from the discussion of the learned authors in that section of the book and with reference to the decision of Claassen J in S v Huma and Another (2) 1995 (2) SACR 411, that the principle or privilege against self incrimination still relates like it did at common law only to oral or documentary testimonials by an accused person.

With reference to an American case, cited by the learned authors, at 547, where it was held that the privilege:

“Was a bar against compelling communications or testimony but that compulsion which (made) a suspect or accused the source of real of physical evidence (did) not violate it applies with equal force to a situation like the present.”

It may be argued that in a case where the records are required by the respondent of a practitioner, that those records and what they reveal to the council, are derivative evidence in the sense that the records existed from the time that they were created by the author thereof, which would have been at that stage, a contemporaneous record as Mr Stroh correctly argued.

Two years thereafter or a year thereafter or a month thereafter, it is not a document which has been brought into existence at that stage, by the author thereof. That document has been in existence since it was created as a contemporaneous record of the treatment etcetera of a practitioner.

The learned authors of the latest edition of Schimdt Bewysreg, that is the 4th edition, at page 574 have the following to say about the privilege against self incrimination.

“Die privilegie is voorts beperk tot getuienis van kommunikatiewe aard afkomstig van die beskuldigde. Die beskuldigde kan derhalwe nie op grond van die privilegie teen self inkriminasie weier om toe te stem tot die neem van bloedmonster (deur 'n bevoegde dokter of verpleegster) of vinger, palm of voet afdrukke nie. Ook kan die privilegie nie geldiglik geopper word om identifikasie te ontduik nie.”

In my view, the records of a practitioner which were brought into existence pursuant to rule 26 and in particular rule 26(1) are not of the nature that the learned authors of the textbooks have referred to as falling within the ambit of the privilege against self incrimination.

In any event, as far as the existence of subrule 5 of rule 26 is concerned, I think that for the reasons given by the respondent in paragraph 37 of the answering affidavit, one can also rightly conclude that in so far as a practitioner may be said to have certain rights and in particular those relied on by the applicant in the present proceedings, that pursuant to the provisions of section 36 of the Constitution, rule 26 constitute an acceptable and valid limitation of those rights.

Mr Stroh has also referred me to instances and examples of other statutory bodies, professional bodies like the present respondent, who exercise similar rights to those exercised by the respondent in terms of rule 26.

The Attorneys Act of 1979 for instance, provides in section 71(2) thereof, that:

“A law society may summon any person who in the opinion of the council of the law society may be able to give material information concerning the subject matter of the inquiry (a disciplinary inquiry) or who is believed by the council to have in his possession or custody or under his control, any book, document, record or thing which has any bearing on the subject matter of the inquiry to appear before it at the time and place specified in the summons to be interrogated and to produce that book, document, record or thing and may retain for inspection any book, document, record or thing so produced.”

That is reminiscent of the provisions of section 32(3) of Act 19/1982, pursuant to which the present respondent functions.

It is also provided in the Attorneys Act, that the council of a law society may inspect the accounting records of any practitioner and attorney, in order to satisfy itself that the provisions of the relevant section of the act, the Attorneys Act, are being observed.

We all know and it is fairly common knowledge, that section 78 of the Attorneys Act obliges an attorney to keep accounting records in a particular manner. The act also empowers the law society to inspect those books and to take steps and action against a practitioner in the event of it being found that the practitioner has not complied with the duties with which he should have complied in the keeping of proper books account. There is no different in principle in my view between that situation and the present situation.

I was also provided by excerpts of the relevant portions of for instance, the Health Professions Act of 1974, Act 56/1974, as well as for instance the relevant sections of the Pharmacy Act of 1974, Act 53/1974. Especially the Pharmacy Act also requires a pharmacist to record all professional actions that might require confirmation in the future and to keep up to date records of prescriptions that he has been furnished with.

In rule 18 of the rules applicable to a pharmacist, it is provided that the failure to observe the provisions of any act, rule or regulation applying to pharmacists, amounts to unprofessional conduct. It suffices to say for present purposes that in my view there is no difference in principle of what is required of members of other professions by their professional bodies and a member of the present respondent being the professional body of a veterinarian.

I am not persuaded that rule 26(5) is unconstitutional whether as Mr Bezuidenhout submitted its existence as such or the use to which it is being put by the council in the manner complained about by the applicant in the founding affidavit. If the power is abused in some instances, then I think the applicant or the member concerned will have an appropriate remedy to apply.

The present application and the relief sought in the present application is certainly not in my view, appropriate relief for the council abusing the powers bestowed on it in the act and in the rules. By that I must not be understood to imply that the council does abuse the rule in the instances referred to in the papers in the present application.

I therefore agree with the standpoint of the respondent that no case has been made out for the relief claimed, alternatively that in so far as it may be said that the rule infringes the rights relied on by the applicant, I agree also with the stance of the respondent that by virtue and pursuant to section 36 of the Constitution, those rights have been limited. It follows from this, that the application cannot succeed.

Mr Stroh requested me to make a punitive cost order against the applicant. That was opposed by Mr Bezuidenhout. Mr Stroh basically advanced two reasons as to why I should make a punitive cost order. In the first instance, he referred to the history of the parties being a loggerheads for quite some time, that he applicant was granted the opportunity of bringing an action to court, that is the proceedings which were abandoned according to the replying affidavit.

That history according to the answering affidavit, has motivated the respondent to rule that the applicant will not be permitted in future, unless a court has pronounced on the issue to raise the question of unconstitutionality of the disciplinary inquiries. Apparently that was implemented in practice.

Secondly, Mr Stroh submitted that the respondent being a profession body, charged with the duty to look after the conduct of practitioners and to lay down certain norms, according to which they should practice, it did not behove the applicant to make unsubstantiated allegations of abuse of the powers by the applicant, in particular Mr Stroh relied on what has been alleged in paragraph 15.2 of the founding affidavit to which I have already referred.

The implication in that paragraph in particular, is that members are being convicted by the respondent without proper proof of the offence having been committed. The further implication is that members are so to speak, ambushed into providing evidence on which they are then eventually convicted. I think there is merit in Mr Stroh’s submissions.

Normally a court frowns upon members of a professional body who adopts such an attitude against their own peers and professional body. I do not think that it should have been done in the present instance. I will therefore accede to Mr Stroh’s request to grant a punitive cost order.

I make the following order:


1. The application is dismissed.

2. The applicant is ordered to pay the respondent’s cost of suit on the scale as between attorney and client and which costs will include the costs of senior counsel.

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