Chakupa Nyamupaguma v The Chairperson (The Disciplinary Committee of Nurses Council of Zimbabwe) and The Nurses Council of Zimbabwe

The applicant was a General Registered Nurse registered under the Health Professions Act [Chapter 27:19]. On 20 November 2018, she appeared before the first respondent (Chairperson of the Disciplinary Committee of the Nurses Council of Zimbabwe) charged with improper or disgraceful conduct in terms of s 107(1) of the Act. The charge alleged that in February 2018, she wrongfully, unlawfully and/or intentionally operated an unregistered health practice at Parirenyatwa Group of Hospitals. The applicant filed a defence objecting to jurisdiction and contesting the merits. Evidence showed the applicant had sought and obtained approval from the clinical director to conduct a case study for training purposes as part of a course she was studying, and was granted authority to engage a locum nurse. On 5 December 2018, the first respondent found the applicant not guilty of contravening s 99(a) and (b) of the Act, but guilty of improper conduct under s 107 for operating an unlicensed practice. The applicant sought to set aside these proceedings and the decision.

• Whether the Disciplinary Committee had jurisdiction to try the applicant for conduct that could constitute a criminal offence under s 99(1)(a) and (b) of the Health Professions Act
• Whether the finding of guilt for 'operating an unlicensed practice' was based on any legal provision requiring a practice to be licensed
• Whether there was a violation of the audi alteram partem principle where the charge of 'operating an unlicensed practice' was not put to the applicant
• Whether the conclusion that the applicant was operating an unlicensed practice was irrational

1. The disciplinary proceedings instituted against the applicant on 20 November 2018 and the subsequent determination handed down on 5 December 2018 were set aside. 2. Each party to pay its own costs.

1. A disciplinary committee established under the Health Professions Act has jurisdiction to charge a health professional with misconduct based on conduct that could also constitute a criminal offence, provided the committee is exercising its disciplinary function under s 107 and not purporting to sit as a criminal court. 2. A breach of the audi alteram partem rule occurs when a disciplinary tribunal finds a person guilty of misconduct based on factual allegations that were not put to the accused person in the charge, even if related evidence was led. 3. Such a breach of the audi alteram partem rule is presumed to be prejudicial to the affected party. 4. A decision is irrational and subject to being set aside on review if it is so outrageous in its defiance of logic that the decision-maker must have taken leave of his or her senses, including where no reasons are provided showing how the conclusion was reached and the decision contradicts the evidence.

Zhou J observed that the matter would have justified a special order of costs against the respondents given their attitude in opposing the application in the face of evidence clearly showing the applicant was authorized to operate by the responsible authority. The court noted that the clinical director who approved the practice was not called to testify, and instead subordinates testified, with one witness (Kerith Mukumbi) who was not even in position when approval was given seeking to challenge it merely because her bosses did not report to her about it. The court expressed concern that these were proceedings being instituted for the improper motive of settling issues with the clinical director by instituting disciplinary proceedings against the applicant. The judge commented that Kerith Mukumbi's case seemed to be against her superiors rather than the applicant.

This case is significant in Zimbabwean administrative law for reinforcing the fundamental requirements of natural justice in disciplinary proceedings. It establishes that disciplinary bodies cannot find a person guilty of charges that were never put to them, regardless of the evidence led. The judgment emphasizes the importance of the audi alteram partem principle in professional disciplinary proceedings and the requirement for administrative decision-makers to provide reasons for their decisions. It also clarifies that professional disciplinary bodies have concurrent jurisdiction to deal with conduct that may also constitute criminal offences, as long as they are exercising their disciplinary function and not purporting to sit as criminal courts. The case demonstrates judicial willingness to scrutinize disciplinary proceedings for rationality and procedural fairness, particularly where proceedings appear to be motivated by improper purposes.