Dr Wouter Basson v Prof J F M Hugo & others

Dr Wouter Basson, a cardiologist, was charged in 2007 with unprofessional conduct before a professional conduct committee of the Health Professions Council of South Africa (HPCSA) relating to his participation in chemical and biological warfare research during his employment with the South African Defence Force in the 1980s. The committee comprised Professor J F M Hugo (Chairperson), Professor R E Mhlanga, and the late retired Judge Eloff. In December 2013, the committee found Basson guilty on four charges. In January 2015, during sanction hearings, petitions were presented by various medical organizations calling for Basson's removal from the Register of Medical Practitioners. When Basson's counsel inquired whether committee members belonged to these organizations, the committee refused to provide the information. Basson subsequently obtained an interim interdict. Professor Hugo later disclosed he was a member of SAMA and had been associated with RUDASA. In March 2015, Basson applied for the recusal of Professors Hugo and Mhlanga on grounds of bias, which the committee refused. Basson then sought judicial review of this decision.

• Whether the appellant was obliged to exhaust an internal remedy under section 7(2) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) before instituting judicial review proceedings
• Whether exceptional circumstances existed under section 7(2)(c) of PAJA to exempt the appellant from exhausting internal remedies
• Whether the internal appeal remedy to an ad hoc appeal committee under section 10(3) of the Health Professions Act 56 of 1974 was effective, adequate and available
• Whether a refusal to recuse in circumstances of alleged bias renders proceedings a nullity
• Whether the appellant would suffer irreparable harm if required to exhaust internal remedies before judicial review

The appeal was upheld. The order of the court a quo was set aside. The third respondent (HPCSA) was ordered to pay the costs of the proceedings in the court a quo and the costs of appeal, including costs of two counsel. The case was remitted to the Gauteng Division of the High Court, Pretoria, to decide the review application on its merits.

Where an administrator is alleged to be biased or reasonably suspected of bias, an internal appeal remedy is ineffective and inadequate for purposes of section 7(2) of PAJA if: (1) the internal appellate body lacks the power to set aside the entire proceedings (as opposed to merely the findings), which would be required if bias is established since biased proceedings are a nullity; (2) the applicant would suffer irreparable harm by being subjected to the exercise of powers by a potentially biased decision-maker pending the outcome of an internal appeal; (3) the remedy cannot be implemented in accordance with constitutional principles of administrative justice, particularly the right to an independent and impartial tribunal under section 34 of the Constitution. In such circumstances, exceptional circumstances exist under section 7(2)(c) of PAJA justifying exemption from the obligation to exhaust internal remedies in the interests of justice. A refusal to recuse where there is actual bias or reasonable apprehension of bias renders proceedings a nullity, not merely voidable, as the tribunal lacks competence from the outset.

Swain JA, in a concurring judgment, made several observations about the interpretation of the Health Professions Act provisions. He noted that section 42(1A) clearly distinguishes between a "decision" and a "penalty", with the latter remaining effective pending appeal while the former does not. The court a quo erred in finding that sections 10(4) and (5) permitted discretion as to when a penalty would take effect - this interpretation would render section 42(1A) superfluous. Swain JA also noted that even if the appeal committee possessed review jurisdiction, it could not set aside the proceedings as opposed to the findings. He emphasized that a decision constituting administrative action exists in fact and has legal consequences until set aside by a court (following Oudekraal Estates), and an appeal committee's jurisdiction would not extend to setting aside proceedings. Swain JA further observed that the standard of proof for granting leave to apply for judicial review is that the applicant must show "a real, as opposed to a theoretical, possibility" or "an arguable case" (citing ex parte Swati). The judgment also noted that while the legislature may intend harsh consequences for professionals pending appeal in normal circumstances, this cannot justify denial of immediate consideration of a claim of bias.

This case is significant for clarifying the application of section 7(2) of PAJA in circumstances where bias is alleged against an administrative decision-maker. It establishes that: (1) where the administrator is alleged to be biased or reasonably suspected of bias, exceptional circumstances will ordinarily exist to exempt an applicant from exhausting internal remedies; (2) a refusal to recuse where bias exists renders proceedings a nullity, not merely voidable, following the principle in Mönnig; (3) an internal remedy that cannot cure the fundamental defect (lack of jurisdiction due to bias) is not effective or adequate; (4) the constitutional right to an independent and impartial tribunal under section 34 of the Constitution informs the interpretation of what constitutes exceptional circumstances under PAJA; (5) factors establishing exceptional circumstances include: irreparable harm from delay, inability of the internal remedy to grant the necessary relief, and bias on the part of the decision-maker. The judgment reinforces that the rule against bias is foundational to constitutional administrative justice and must not only exist but be seen to exist.