MEC: Department of Health, Western Cape v SAMA obo Saadiq Kariem, NO and Another

The Western Cape Department of Health instituted disciplinary proceedings against Dr Srinivivasan Govender, a senior medical specialist, arising from an incident on 20 September 2016 at a state clinic. Dr Govender administered intravenous Ketamine to a colleague and friend (the complainant), who was suffering from depression and other conditions, despite her not being admitted as a patient. While the Ketamine infusion was running, or shortly thereafter, Dr Govender had sexual intercourse with the complainant on the clinic premises. The complainant alleged she was unable to give informed consent due to the effects of Ketamine and laid a complaint of sexual assault. Three charges were brought: (1) engaging in a sexual act on state premises, (2) sexual assault without consent, and (3) improper medical treatment using state supplies. The disciplinary chairperson, Dr Saadiq Kariem, acquitted Dr Govender on the sexual assault charge and imposed relatively lenient sanctions on the other two charges. The Department applied to the Labour Court under section 158(1)(h) of the Labour Relations Act to review and set aside those decisions.

The Labour Court reviewed and set aside the disciplinary chairperson’s decision acquitting Dr Govender on the charge of sexual assault, as well as the sanctions imposed on the other charges, and remitted the matter for reconsideration in accordance with the Court’s findings.

The case affirms that internal disciplinary decisions in the public service constitute exercises of public power and are reviewable under the principle of legality and, where applicable, PAJA. It is significant for its clear recognition that informed consent is incompatible with the administration of dissociative drugs such as Ketamine, and for reinforcing strict standards of ethical conduct, consent, and accountability in public healthcare employment.