Meshack Mapholisa N O v Adv K I A Phetoe N O and Others

Ms Malinda Miller (the ninth respondent) lodged a complaint with the Health Professions Council of South Africa (HPCSA) on 8 July 2013 against Dr Percy Miller (the seventh respondent), a registered medical doctor. The complaint arose from doctor-patient interactions between Dr Miller and Ms Violet Gaolebale Senna (the tenth respondent, now deceased), who was Dr Miller's patient. Ms Malinda Miller was not Dr Miller's patient but lodged the complaint on humanitarian grounds. The Board appointed a Committee of Preliminary Inquiry which found Dr Miller guilty of misconduct and imposed a fine of R10,000. Mr Meshack Mapholisa, appointed as pro forma complainant by the Registrar of the HPCSA, prepared charges against Dr Miller. Dr Miller rejected the admission of guilt fine, leading to a Professional Conduct Inquiry. At the inquiry, Dr Miller raised a point in limine arguing that Ms Miller had no locus standi to lodge the complaint because she was not his patient and could not provide evidence. On 3 July 2017, the Professional Conduct Committee (PCC) upheld the point in limine. Mr Mapholisa applied to the high court to review and set aside the PCC's decision. Dr Miller raised a point in limine that Mr Mapholisa had failed to exhaust the internal remedy of appeal as required by section 7(2) of PAJA. The high court dismissed the application on this basis.

• Whether the Promotion of Administrative Justice Act 3 of 2000 (PAJA) or the principle of legality applies when one organ of state seeks to review the decision of another organ of state
• Whether section 7(2) of PAJA, requiring exhaustion of internal remedies, applies to reviews between organs of state
• Whether the Professional Conduct Committee erred in finding that Ms Malinda Miller lacked locus standi to lodge a complaint against Dr Miller

1. Leave to appeal granted with costs, including costs of two counsel. 2. The appeal upheld with costs, including costs of two counsel. 3. The high court order set aside and replaced with: (a) The decision of the Professional Conduct Committee dated 3 July 2017 reviewed and set aside; (b) The decision substituted with 'The point in limine is dismissed'; (c) The seventh respondent (Dr Miller) directed to pay the applicant's costs.

1. PAJA does not apply when one organ of state reviews the decision of another organ of state; the applicable pathway is the principle of legality sourced in section 1(c) of the Constitution. 2. Section 33(1) of the Constitution creates rights enjoyed only by private persons, with the State being the bearer of obligations under that section. This applies whether an organ of state is reviewing its own decision or the decision of another organ of state. 3. Under the common law principle of legality, there is no duty to exhaust internal remedies unless a statute expressly imposes such obligation. The mere creation of an internal remedy does not give rise to an inference that there is a duty to use it. 4. In professional disciplinary proceedings, the question of who may lodge a complaint (locus standi) is distinct from the question of how a complaint may be proved (admissible evidence). 5. The definition of 'complainant' in regulation 1 of the Regulations must be interpreted broadly in accordance with the public interest objective of protecting the public from professional misconduct by health professionals.

The Court noted the exception to the Gijima rule: if an organ of state applies to review administrative action when acting in the public interest, rather than in its own interest, it steps into the shoes of private persons and may then use PAJA. However, this exception did not apply in this case because Mr Mapholisa brought the review in his capacity as pro forma complainant, not in the public interest. The Court also observed that one of the objects and functions of the PCC under section 3(k) of the Health Professions Act is to exercise its powers and discharge its responsibilities in the best interest of the public and in accordance with national health policy determined by the Minister. This contextualizes the wide definition of 'complainant' in the regulations.

This case clarifies an important principle of administrative law in South Africa: when one organ of state seeks to review the decision of another organ of state, the applicable framework is the principle of legality under the common law, not PAJA. This extends the reasoning in Gijima (which dealt with self-review by an organ of state) to inter-organ reviews. The case confirms that section 33(1) of the Constitution and PAJA create rights enjoyed only by private persons, not organs of state. The judgment has significant implications for the exhaustion of internal remedies requirement under section 7(2) of PAJA—it does not apply to reviews under the principle of legality unless legislation expressly requires exhaustion. The case also provides guidance on the interpretation of standing provisions in professional disciplinary proceedings, emphasizing that broad standing rules serve the public interest in protecting people from professional misconduct.