Lynette Mary Roux v Health Professions Council of South Africa and Oliver Michael Powell

The appellant, a clinical psychologist, was appointed to conduct forensic work for the Family Advocate regarding a child access dispute between the second respondent (Powell) and Ms Petzer concerning their minor child, Byron. After providing a report in March 2004, the appellant began treating Byron therapeutically and supplemented her report in March 2005 while still treating the child. In April 2005, Powell lodged a complaint with the HPCSA alleging (1) multiple relationships (acting as both investigator and therapist) and (2) misdiagnosis and labelling him a liar. The committee of preliminary inquiry obtained an expert opinion from Prof Vorster, who recommended prosecution only on the multiple relationships charge. The committee resolved in May 2007 that an inquiry be held on this charge alone. A charge sheet with only the multiple relationships charge was approved in July 2007. Following postponements and Powell's insistence, the pro forma complainant added the misdiagnosis charge on 4 September 2009 without referring the matter back to the committee and relying on opinions obtained by Powell. The appellant challenged the legality of this additional charge.

• Whether a pro forma complainant has the authority to prefer charges against a health practitioner which were not authorised by the committee of preliminary inquiry
• Whether the formulation of the charge sheet constituted 'administrative action' subject to review under PAJA
• Whether the principle of legality applied to the pro forma complainant's decision to add the unauthorized charge
• Whether the matter was ripe for review before the inquiry had been held
• The interpretation and application of sections 15 and 41 of the Health Professions Act 56 of 1974 and regulations 3 and 4 dealing with disciplinary inquiries

The appeal was upheld with costs. The order of the High Court was set aside and replaced with: (a) Count 1 (the misdiagnosis charge) of the charge sheet dated 4 September 2009 was set aside; (b) The HPCSA was ordered to hold an inquiry into the appellant's alleged misconduct solely in respect of Count 2 (the multiple relationships charge) within two months; (c) The first and second respondents were ordered to pay the costs of the application jointly and severally.

A pro forma complainant does not have authority to prefer charges against a health practitioner that were not authorized by the committee of preliminary inquiry. The committee of preliminary inquiry, constituted by health professionals with relevant expertise, has the statutory function under regulation 3(4) to determine which specific conduct warrants an inquiry - a 'sifting function'. The pro forma complainant's role is limited to formulating the authorized conduct into an intelligible charge sheet. Any decision by a pro forma complainant to add charges not authorized by the committee is not 'sourced in law' and violates the constitutional principle of legality, which requires that public power be validly exercised only if clearly sourced in law. Such unauthorized decisions are subject to review even if they do not constitute 'administrative action' under PAJA. Where the challenge relates to the source of power and fundamental legality, the matter is ripe for review before any inquiry is held.

The court expressed concern about the significant delay in this matter, noting that the complaint was lodged in April 2005 but the inquiry had still not been held six years later. The court observed that 'such a state of affairs reflects badly on the HPCSA and affects public confidence in it', emphasizing that the purpose of establishing the HPCSA was to protect the public interest. The court also made general observations about the purposive approach to statutory interpretation, noting that even where language is unambiguous, the purpose of the Act and wider contextual considerations may be invoked in aid of proper construction. The judgment discussed the definition of 'administrative action' under PAJA and noted that the pro forma complainant's decision 'clearly falls within the definition' and 'is in the ordinary course subject to review for lack of statutory authority in terms of s 6 of PAJA', though the court also decided the matter on the alternative basis of legality.

This case is significant in South African administrative law for clarifying the limits of authority of persons exercising delegated public power in disciplinary proceedings. It reinforces the principle of legality under the Constitution, establishing that even where PAJA may not apply, public functionaries must act strictly within their statutory powers. The judgment provides important guidance on the interpretation of the Health Professions Act's disciplinary framework, specifically the roles and boundaries of committees of preliminary inquiry versus pro forma complainants. It also confirms that persons need not exhaust internal processes before challenging fundamental illegality in administrative decisions, and emphasizes the protective function of preliminary inquiry committees in professional disciplinary proceedings.