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

Dr Govender, a senior medical specialist employed by the Western Cape Department of Health, was subject to disciplinary proceedings after a complaint was lodged against him on 23 September 2016. The complaint arose from an incident on 20 September 2016 at the Department's Site B Clinic. Dr Govender offered to give the Complainant (a colleague and former brief romantic partner) a lift home. When she mentioned having a 'down day', he offered to administer Ketamine, a drug he described as a 'mood lifter', to treat what he claimed was treatment-resistant depression. He took her to a clinic room, administered Ketamine intravenously via drip, and subsequently engaged in sexual intercourse with her while she was on the premises. The Complainant testified that the intercourse occurred while the drip was running and while she experienced dissociation and physical lameness due to the Ketamine. She could not recall consenting. Dr Govender claimed he turned off the drip after 30 seconds to 2 minutes, obtained consent while she was 'conscious and oriented', and only restarted the drip after intercourse. Dr Govender was charged with three counts of misconduct: (1) engaging in sexual acts on premises; (2) sexual assault (engaging in sexual acts without consent); and (3) treating a patient not properly admitted with hospital supplies. He pleaded guilty to charges 1 and 3, but not guilty to charge 2. The disciplinary chairperson, Dr Kariem (first respondent), found Dr Govender not guilty of sexual assault and imposed demotion for charge 1 and a final written warning for charge 3. The MEC for Health applied to review these decisions.

• Whether the decisions of the disciplinary chairperson were reviewable under section 158(1)(h) of the LRA on grounds of legality, lawfulness and rationality
• Whether a person who has been infused with Ketamine intravenously has the capacity to give informed consent to sexual intercourse
• Whether the disciplinary chairperson's finding that it was unclear whether consent was given was rational and reasonable in light of expert evidence
• Whether the sanction imposed for the guilty pleas was appropriate
• Whether the Court should substitute its own decision or remit the matter

1. The decision of the first respondent dated 3 February 2017 that the second respondent was not guilty of the second charge (sexual assault) is reviewed and set aside and substituted as follows: 1.1 The second respondent is found guilty of the second charge (sexual assault). 1.2 The penalty for the finding of guilt shall be dismissal. 1.3 The date of dismissal shall be determined by the applicant.

A person who has been infused with Ketamine intravenously does not have the capacity to give informed consent to any act on their body, including sexual intercourse. A disciplinary decision that fails to take into account or gives insufficient consideration to material unchallenged expert evidence, or that reaches a conclusion not rationally connected to such evidence, is reviewable and subject to being set aside on grounds of irrationality and unreasonableness under the principle of legality. The administration of a mind-altering drug by a medical professional to a patient creates an inherent power imbalance that precludes valid consent to sexual activity, regardless of the formal employment or management positions of the parties. Sexual assault by a medical professional against a patient in their care constitutes a fundamental breach of trust warranting dismissal.

The Court noted that Dr Kariem's acceptance of the severity of the Complainant's depression as 'treatment resistant' justifying Ketamine use was based entirely on Dr Govender's evidence without consulting the Complainant's own treating psychiatrist. The Court also observed that Dr Govender admitted to illegally self-medicating with Ketamine obtained from the clinic for his own depression and anxiety, though this was not central to the determination. The Court commented that it was not necessary to deal with the appropriateness of the sanctions for the two charges to which Dr Govender pleaded guilty (sexual acts on premises and treating an unregistered patient) because dismissal for sexual assault rendered those sanctions moot. The Court noted that while Dr Kariem referenced the employer's policies indicating dismissal is appropriate for clear sexual harassment, he failed to apply this consistently to the facts established. The parties agreed that the decisions were reviewable under both the constitutional principle of legality and under PAJA, though the Court did not need to definitively determine the PAJA question to resolve the matter.

This case is significant in South African labour and administrative law for establishing that decisions of internal disciplinary tribunals in the public service are reviewable under section 158(1)(h) of the LRA on grounds of legality, rationality and reasonableness. It confirms that disciplinary decisions involving organs of state constitute exercises of public power subject to constitutional scrutiny. The judgment is particularly important in the context of sexual assault and consent, establishing that medical professionals administering mind-altering substances like Ketamine create conditions where informed consent to sexual activity is impossible as a matter of law. The case reinforces the high ethical and professional standards expected of medical practitioners and the abuse of the doctor-patient power relationship. It also demonstrates the Labour Court's willingness to substitute its own decision in review proceedings where all evidence is available and remittal would be impractical, departing from the general rule that review courts remit matters for reconsideration.