MEDICAL & DENTAL PRACTITIONERS COUNCIL OF ZIMBABWE v CHIKWAVA

HIGH COURT, HARARE

[Special Case HH 269-16]

February 22 and May 4, 2016

TSANGA J

Prescription  –  Judgment debt  –  What constitutes a judgment debt  –  Whether determination made by a statutory council constitutes a judgment debt for purposes of prescription.

Defendant had been brought before the tribunal constituted in terms of the Health Professions Act [Chapter 27:19] on allegations of misconduct. He was found guilty and ordered to pay a monetary penalty. As a result of the hearing, certain costs were incurred and those together with the penalty were claimed from him in terms of s 117 of the Health Professions Act.

Defendant took the point in limine that the remedy sought to be enforced by plaintiff had been extinguished by extinctive prescription. Plaintiff argued that its determination constituted a judgment that could only prescribe after 30 years.

Held, that in deciding whether the decision by the Council’s disciplinary authority constitutes a judgment, of significance is that the Council draws its powers from statute. Much depends on the empowering statute and the authority it grants the quasi-judicial body in question. In this instance the Council’s disciplinary committee has judicial jurisdiction and acts as a quasi-judicial body exercising quasi-judicial functions when it purports to discipline its members for improper or disgraceful conduct.

Held, further, that Council’s determination was clearly a judgment in the broader sense of the word. However, it was not a judgment in the technical sense where the word is used in relation to a decision of a formal court of law and has specific implications. Decisions from tribunals and administrative bodies have generally been called “determinations”. However, a determination, referring as it does to a final resolution of a dispute, can equally refer to a decision made by a formal court in as much as it can also refer to a decision made by an administrative agency. The word “determination” may itself also mean a judgment.

Held, further, that whilst s 113 (2)(d) of the Health Professions Act allows the Council’s disciplinary committee to order a party before it to pay “any costs or expenses of and incidental to the inquiry” the enabling statute is equally clear on the steps and the procedure to be followed where these have not been paid. The Council has a right to approach this Court by way of instituting an action for its payment. The crucial import of s 117 of the Health Professions Act is that it gives the Council as creditor, a cause of action upon which to lay its claim for payment of the penalty costs and incidental expenses, and, to obtain a judgment debt if the court so agrees with the claim. The institution of the action and the resultant decision thereunder is what results in an executable judgment debt with a 30 years life span. Prior to that, if the debtor has not been paid, what the creditor has in hand is a legitimate cause of action upon which to approach the court to obtain an executable court judgment on the debt.

Cases cited:

Deloitte Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman Deutsch (Pty) Ltd 1991 (1) SA 525 (A), referred to

Eagle Insurance Company Ltd v Grant 1989 (3) ZLR 278 (S), referred to

Hingeston v Lightfoot 2000 (2) ZLR 247 (S), referred to

Kanengoni v Zimbabwe Spinners and Weavers (Pvt) Ltd 1995 (2) ZLR 348 (S), referred to

Kilroe-Daley v Barclays National Bank Ltd 1984 (4) SA 609 (A), referred to

Rogers v Rogers & Anor 2008 (1) ZLR 330 (S), referred to

Legislation considered:

Zimbabwe:

Constitution of Zimbabwe Amendment (No 20) Act, 2013, ss 162, 174 (d)

Health Professions Act [Chapter 27:19], ss 22, 29, 110, 113 (2)(c) and (d), 117, 128, Part XIX

Prescription Act [Chapter 8:11], ss 15 (a)(ii), 15 (d), 16 (1)

High Court Rules, 1971 (RGN 1047 of 1971), O 29 r 199

South Africa:

Prescription Act (68 of 1969), s 11 (a)(ii)

R Magundane with N Tiyago, for the plaintiff

I Musimbe, for the defendant

TSANGA J:

This matter was placed before me as a special case in terms of O 29 r 199 of the High Court Rules, 1971 (RGN 1047 of 1971) (“the Rules”). This rule provides that parties to a civil action may, after summons have been issued, concur on questions of law in the form of a stated case for the court’s opinion.

The facts informing the stated case were common cause. Sometime in 2011, the defendant was arraigned for various medical malpractices before a tribunal constituted by statute, namely, the Health Professions Act [Chapter 27:19]. It establishes the Health Professions Authority of Zimbabwe (“the Authority”) whose mandate is to coordinate the functions and operations of the health professions and to hear appeals from the various councils that regulate different categories of the health profession. Among councils established by the Health Professions Act is the Medical and Dental Practitioners Council (“the Council”). It is established in terms of s 29 of this Act. Its responsibility is to regulate medical and dental professions in Zimbabwe.

The defendant was found guilty by this Council’s disciplinary committee, of improper conduct. He was suspended from medical practice for a year. In terms of s 113 (2)(c) and (d) of the Health Professions Act, he was also ordered to pay a penalty of US$ 300 and costs incidental to the enquiry, all of which he has not paid. The total amount claimed from him is US$ 10 695. Of this, US$ 9 995 is said to relate to legal costs while the balance of US$ 700 arises from the imposed fine of US$ 300 whilst US$ 400 is for sitting allowances for the disciplinary committee. At the crux of the stated case is therefore the payment of the penalty and costs arising from the enquiry and costs incidental to the enquiry. Section 117 in particular of the Health Professions Act, allows the Council to approach the court to recover costs or penalty ordered in terms of the hearing. It is in terms of the above provisions the plaintiff seeks to recover the above sum.

On 10 June 2011, the defendant filed an appeal before the Authority. It refused to hear his appeal on the basis that it was a conflicted and an interested party in the outcome of the case. Ordinarily, an appeal from the Authority would have been heard by the High Court. With the refusal by the Authority to hear the appeal, the matter has remained stagnant with nothing being done by the defendant to pursue it further. The decision of the Council’s disciplinary committee therefore effectively remains extant.

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