Introduction
The Western Cape High Court recently delivered a significant judgment in the case of Els v Health Professions Council of South Africa and Others (965/2023) [2024] ZAWCHC 112 (25 April 2024). The case concerned an application by Ms. Christina Fransina Johanna Els, a counselling psychologist, to stay disciplinary proceedings instituted against her by the Health Professions Council of South Africa (HPCSA) pending an internal appeal against an interlocutory ruling made by the Professional Conduct Committee during the course of the inquiry.
Ms. Els was facing charges of unprofessional conduct for allegedly engaging in “multiple relationships” by offering therapeutic services to parties involved in a Children’s Court matter where she was the appointed facilitator. This conduct was alleged to be in breach of the HPCSA’s ethical rules for psychologists.
It was alleged that the applicant engaged in what is termed, in the language of the profession of psychologists, “multiple relationships”. The substance of the complaint was that while the applicant was acting as a court appointed facilitator in a Childrens’ Court enquiry in Cape Town, she offered professional therapeutic services to certain of the parties involved in that matter. Such conduct is regarded by the HPCSA as unprofessional in that is alleged to be a breach of the so-called Professional Board for Psychology Rules of Conduct Pertaining to the Profession of Psychology (the Psychology Rules).
The disciplinary inquiry against Ms. Els commenced before the Professional Conduct Committee in October 2021. During the proceedings, Ms. Els sought to introduce the record of the Children’s Court proceedings into evidence and to cross-examine witnesses on it. However, the Committee ruled that this evidence was inadmissible.
Aggrieved by this ruling, Ms. Els launched an urgent application in the Western Cape High Court in September 2023, seeking to appeal the Committee’s decision and to stay the disciplinary proceedings pending the outcome of the appeal. She argued that she had a right to an internal appeal against the ruling in terms of the HPCSA’s Regulations relating to unprofessional conduct inquiries.
The HPCSA opposed the application, arguing that Ms. Els had no right to bring an interlocutory appeal at this stage of the proceedings and that doing so would fragment and delay the disciplinary process. The HPCSA contended that any procedural irregularities could be remedied through an appeal or review after the Committee had concluded its inquiry and rendered a decision on the merits.
In a comprehensive judgment, Gamble J dismissed Ms. Els’ application, finding that she had no right to an internal appeal against the Committee’s interlocutory ruling at this stage. The Court held that to allow such piecemeal appeals would unduly delay and disrupt the disciplinary process and that any irregularities could be addressed through the normal appeal and review mechanisms once the proceedings had been concluded.
The judgment touches on several important legal principles, including the interpretation of the HPCSA’s disciplinary regulations, the general reluctance of courts to intervene in uncompleted proceedings of lower tribunals, the nature of appealable decisions, and the need to prevent vexatious litigation tactics aimed at obstructing and delaying legal processes. The Court’s reasoning and conclusions in this matter provide valuable guidance on these issues.
The legislative framework: Health Professions Act 56 of 1974 and Regulations
The Court had to consider the relevant legislative framework governing disciplinary proceedings against health professionals. The key legislation in this regard is the Health Professions Act 56 of 1974 (HPA) and the regulations issued under it.
Section 42 of the HPA deals with the powers and functions of Professional Conduct Committees in inquiring into complaints of unprofessional conduct against practitioners. It provides that a practitioner found guilty of unprofessional conduct may be subject to various penalties, including suspension or removal from the register. The section also empowers the HPCSA to make regulations specifying the acts or omissions which constitute unprofessional conduct.
Under this power, the HPCSA has promulgated the Regulations Relating to the Conduct of Inquiries into Alleged Unprofessional Conduct under the Health Professions Act, 1974. These regulations govern the procedures to be followed in disciplinary inquiries.
A key issue in the Els case was the interpretation of Regulation 11, which deals with appeals against decisions of the Professional Conduct Committee. The Court had to determine whether Regulation 11 granted a right of appeal to practitioners against interlocutory rulings made during the course of an inquiry, or only against the final decision on the merits.
The Court considered both the 2009 and 2023 versions of Regulation 11. The 2009 version provided that a practitioner may “appeal to the appeal committee against the findings or penalty of the professional conduct committee or both such finding and such penalty.” The 2023 amendment clarified that such an appeal would lie only after the imposition of a penalty following a finding of guilt.
Gamble J concluded that, on a proper interpretation, Regulation 11 only grants a right of appeal against the final decision of the Committee, and not against interlocutory rulings made during the proceedings. To hold otherwise, the Court reasoned, would result in a fragmented and unduly delayed disciplinary process.
This aspect of the judgment illustrates the important role that the legislative framework plays in circumscribing the powers and procedures of professional disciplinary bodies. It also shows how courts will interpret such legislation in a manner that promotes the efficient and expeditious resolution of disciplinary complaints.
Judicial reluctance to intervene in uncompleted proceedings: The Wahlhaus principle
In dismissing Ms. Els’ application to intervene in the uncompleted disciplinary proceedings against her, the Court relied on the well-established principle set out in Wahlhaus and others v Additional Magistrate, Johannesburg and another 1959 (3) SA 113 (A).
The Wahlhaus case articulated the general reluctance of superior courts to interfere in uncompleted proceedings before lower courts or tribunals. The Appellate Division held that a superior court should only intervene in unterminated proceedings in “rare cases where grave injustice might otherwise result or where justice might not by other means be attained.”
The rationale behind this principle is to avoid fragmentation of the proceedings and the determination of issues based on an incomplete record. The court in Wahlhaus stressed that it is undesirable to hear appeals or reviews piecemeal and that any irregularities can usually be corrected on appeal or review once the proceedings have been concluded.
Gamble J found that this principle applied with equal force to the disciplinary proceedings before the HPCSA’s Professional Conduct Committee. The learned judge held that allowing Ms. Els to appeal an interlocutory ruling would result in undue delay and disruption of the proceedings, which had already been ongoing for a considerable time.
The Court also referred to several other judgments that have affirmed and applied the Wahlhaus principle in various contexts. These included Booysen v Minister of Safety and Security (2011) 32 ILJ 112 (LAC), where the Labour Appeal Court held that it would only intervene in uncompleted disciplinary proceedings in exceptional circumstances, and Magoda v Director-General of Rural Development and Land Reform and another [2017] BLLR 1267 (LC), where the Labour Court took a similar approach.
The judgment in Els thus reaffirms the important principle that courts should be cautious about intervening in uncompleted proceedings before lower tribunals. This is to ensure that such proceedings can be efficiently and expeditiously concluded without undue fragmentation or delay, while still allowing for irregularities to be corrected through the normal appeal and review mechanisms once the proceedings have run their course.
No right to piecemeal appeals against interlocutory rulings: Dickinson v Fisher’s Executors 1914 AD 424.
The Court also relied on the important principle set out in Dickinson and another v Fisher’s Executors 1914 AD 424 to find that Ms. Els had no right to appeal against the Professional Conduct Committee’s interlocutory ruling on the admissibility of evidence.
In Dickinson, the Appellate Division drew a clear distinction between an appealable “order” or “judgment” that finally disposes of the issues between the parties, and a non-appealable “ruling” or “decision” on an interlocutory matter incidental to the main dispute. The Court held that to allow appeals against every interlocutory ruling would lead to numerous piecemeal appeals, causing inordinate delays and disrupting the continuity of the proceedings.
Applying this principle to the facts in Els, Gamble J found that the Professional Conduct Committee’s ruling on the admissibility of the Children’s Court records was a non-appealable interlocutory decision. The learned judge held that Regulation 11, which grants a right of appeal against a “finding” of the Committee, could not be interpreted to include a right to appeal against interlocutory rulings on the admissibility of evidence or other procedural issues.
The Court also referred to several other cases that have followed and applied the Dickinson principle. These included Mkhize v Umvoti Municipality and others 2010 (4) SA 509 (KZP) and Sheppard NO & others v Vos & others [2011] JOL 27143 (KZP), where the courts held that interlocutory rulings in the course of legal proceedings are generally not appealable.
Gamble J found that allowing practitioners to appeal against every interlocutory ruling of a Professional Conduct Committee would result in fragmented and protracted disciplinary proceedings. This would undermine the public interest in the expeditious resolution of complaints against health professionals.
The judgment thus affirms the important principle that there is no general right to appeal against interlocutory rulings made during the course of legal proceedings. Such rulings can usually only be challenged on appeal or review once the proceedings have been finally determined. This principle seeks to prevent the fragmentation and undue delay of legal processes through piecemeal appeals.
Vexatious Stalingrad litigation tactics: Zuma v Downer 2024 (2) SA 356 (SCA)
The Court also considered whether Ms. Els’ application to appeal against the Professional Conduct Committee’s interlocutory ruling and stay the disciplinary proceedings pending the appeal constituted an abuse of process.
In this regard, Gamble J referred to the so-called “Stalingrad” litigation tactics that have been criticised by our courts, most recently in Zuma v Downer and another 2024 (2) SA 356 (SCA). The term “Stalingrad” defence refers to the strategy of mounting numerous interlocutory challenges and procedural objections to frustrate and delay legal proceedings, without dealing with the merits of the case.
In Zuma, the Supreme Court of Appeal condemned the reliance on Stalingrad tactics in the context of criminal proceedings. The Court noted that these tactics are often employed by well-resourced litigants who are able to afford legal teams to bring multiple applications to delay their prosecutions. The Court stressed that such strategies undermine the interests of justice and the imperative of speedy trials enshrined in the Constitution.
Gamble J found that while the disciplinary proceedings against Ms. Els were not criminal in nature, they were akin to a criminal process in that they involved charges of misconduct and the potential for serious sanctions. The learned judge thus held that the Stalingrad principle applied with equal force in this context.
The Court found that Ms. Els’ application exhibited some of the hallmarks of Stalingrad abuse. These included bringing the application at the eleventh hour after the Committee had already refused to admit the evidence several months prior, the lack of proper notice to the respondents, and the fact that the application had already delayed the proceedings for over six months.
Gamble J held that these tactics were not consistent with Ms. Els’ professed desire to resolve the disciplinary complaints against her expeditiously. Instead, they appeared calculated to obstruct and protract the proceedings through technical points without engaging the merits of the charges against her.
The judgment sends a strong message that our courts will not tolerate the abuse of legal processes through vexatious Stalingrad strategies aimed at frustrating or delaying proceedings. Litigants who employ such tactics, even in non-criminal matters, can expect to be met with judicial censure and possibly adverse costs consequences.
The concept of “multiple relationships”
The concept of “multiple relationships” in the context of psychology and other mental health professions refers to a situation where a therapist or counsellor enters into a secondary relationship with a client, outside of the primary therapeutic relationship. This secondary relationship can be social, financial, professional, or any other type of relationship that goes beyond the boundaries of the therapeutic alliance.
The ethical principles and rules of conduct for psychologists and other mental health professionals generally prohibit or severely restrict the formation of multiple relationships with clients. This is because such relationships can create conflicts of interest, undermine the objectivity and impartiality of the therapist, and potentially exploit the vulnerabilities of the client.
For example, if a therapist enters into a business partnership or a sexual relationship with a client, this can blur the lines between the professional and personal spheres, compromise the therapist’s judgment, and create a power imbalance that can be harmful to the client. Similarly, if a therapist provides therapy to a close friend or family member, this can make it difficult for the therapist to maintain appropriate boundaries and can strain both the personal and professional relationships.
The prohibition on multiple relationships is based on the recognition that the therapeutic relationship is inherently asymmetrical, with the therapist holding a position of power and influence over the client. Clients come to therapy in a vulnerable state, seeking help and guidance, and they place a high degree of trust in their therapists. Exploiting this trust or blurring the boundaries of the relationship can cause serious harm to clients and undermine the integrity of the therapeutic process.
There are some limited exceptions to the general rule against multiple relationships, such as when a therapist may need to provide emergency assistance to a client outside of the therapy setting, or when a therapist may have unavoidable social contacts with clients in a small community. However, in all cases, therapists are expected to carefully consider the potential risks and ethical implications of any secondary relationships, to discuss these issues openly with clients, and to prioritise the clients’ welfare and autonomy.
The allegations against Ms. Els in the disciplinary proceedings before the HPCSA suggest that, by offering therapeutic services to parties involved in a Children’s Court matter where she was the appointed facilitator, she may have engaged in prohibited multiple relationships. If proven, such conduct would likely be considered a serious breach of professional ethics and could result in disciplinary sanctions. This case underscores the importance of maintaining clear boundaries and avoiding conflicts of interest in the provision of mental health services.
Questions and Answers
Q: What was the main issue before the court in the Els case? A: The main issue was whether Ms. Els, a counselling psychologist, could appeal against an interlocutory ruling of the Professional Conduct Committee of the HPCSA during the course of disciplinary proceedings against her.
Q: What were the charges against Ms. Els in the disciplinary proceedings? A: Ms. Els was charged with engaging in “multiple relationships” by offering therapeutic services to parties involved in a Children’s Court matter where she was the appointed facilitator, in breach of the HPCSA’s ethical rules for psychologists.
Q: What did the Professional Conduct Committee rule on the admissibility of certain evidence during the disciplinary proceedings? A: The Professional Conduct Committee ruled that the record of the Children’s Court proceedings was inadmissible and that Ms. Els could not cross-examine witnesses on it.
Q: What relief did Ms. Els seek from the High Court? A: Ms. Els sought to appeal against the Professional Conduct Committee’s interlocutory ruling on the admissibility of evidence and to stay the disciplinary proceedings pending the outcome of the appeal.
Q: What was the court’s decision on Ms. Els’ application? A: The court dismissed Ms. Els’ application, finding that she had no right to an internal appeal against the Committee’s interlocutory ruling at this stage of the proceedings.
Q: What is the Wahlhaus principle that the court relied on in its judgment? A: The Wahlhaus principle, from the case of Wahlhaus and others v Additional Magistrate, Johannesburg and another 1959 (3) SA 113 (A), expresses the general reluctance of superior courts to interfere in uncompleted proceedings before lower courts or tribunals.
Q: What did the court say about the interpretation of Regulation 11 of the HPCSA’s disciplinary regulations? A: The court found that Regulation 11, which grants a right of appeal against a “finding” of the Committee, could not be interpreted to include a right to appeal against interlocutory rulings on the admissibility of evidence or other procedural issues.
Q: How did the court apply the principle in Dickinson v Fisher’s Executors 1914 AD 424 to this case? A: The court held that, based on the principle in Dickinson, the Professional Conduct Committee’s ruling on the admissibility of evidence was a non-appealable interlocutory decision, and allowing appeals against such rulings would result in piecemeal litigation and undue delay.
Q: What did the court say about Ms. Els’ litigation strategy? A: The court found that Ms. Els’ application exhibited some of the hallmarks of “Stalingrad” abuse, referring to the practice of mounting numerous interlocutory challenges and procedural objections to frustrate and delay legal proceedings, as criticised in Zuma v Downer 2024 (2) SA 356 (SCA).
Q: What are the potential consequences of a mental health professional engaging in multiple relationships with clients? A: Engaging in multiple relationships with clients can create conflicts of interest, undermine the objectivity and impartiality of the therapist, exploit the vulnerabilities of the client, and cause serious harm to clients while undermining the integrity of the therapeutic process, potentially leading to disciplinary sanctions.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline. A blog, managed by SplashLaw, for more information on Family Law read more here.
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