THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

REPORTABLE
CASE NO:   54/2007

In the matter between

JULIUS PREDDY                                                 FIRST APPELLANT

PERCY MILLER                                             SECOND APPELLANT

and

THE HEALTH PROFESSIONS COUNCIL
OF SOUTH AFRICA                                                      RESPONDENT

CORAM:
HOWIE P, MTHIYANE, HEHER, MLAMBO and
MAYA JJA

HEARD:

12 MARCH 2008
DELIVERED:
31 MARCH 2008

Summary:
Health Professions Act 56 of 1974 – ss 42 and 43 - medical
practitioners guilty of unprofessional conduct – Penalties
imposed by Professional Committee of Enquiry suspended
on certain conditions – whether such conditions competent.
Interpretation and application of section 42(1) and 43(1)(b)
of the Act – intention to empower sentencing authority to
select one or more of the penalties – substitution of ‘and’
for ‘or’ not to be lightly resorted to.

Neutral Citation: Preddy v Health Professions Council of SA
(54/2007) [2008] ZASCA 25 (31 March 2008).

MTHIYANE JA

MTHIYANE JA:

[1] The first and second appellants are specialist medical practitioners
registered in terms of the Health Professions Act 56 of 1974 (‘The Act’).
At a disciplinary enquiry conducted by the Professional Conduct Enquiry
Committee (‘the Committee’) in terms of s 41 of the Act, the appellants
were found guilty of unprofessional conduct. Their conviction arose from
an arrangement in terms of which the appellants referred patients to a
radiology firm in return for which they received certain payments. The
payments were found by the Committee to constitute perverse incentives
(‘kickbacks’) and their receipt by the appellants, disgraceful conduct. In
total the first appellant received R156 792, 00 and the second appellant
R756 153, 00 over the period 1993 to 1999.

[2] The appellants were suspended from practice for five years but the
operation of the suspension was suspended for five years on the following
conditions: (1) that they were not convicted of receiving perverse
incentives for a period of five years during the period of suspension; (2)
that the amounts received were paid to the Health Professions Council of
South Africa (‘the Council’) within a specified period; (3) that they
performed community service in any public service hospital for two
years, with the distinction that the first appellant was to serve only one
day per week, and the second appellant two days.

[3] The appellants appealed to the Disciplinary Appeal Committee (i.e.
an internal appeal in terms of the Act). The appeal succeeded in part to
the extent that the conviction was confirmed but the period within which

the appellants had to pay the Council was extended by a further six
months to one year. In addition the second appellant’s community service
was reduced to one day per week.

[4] A further appeal to the Pretoria High Court in terms of s 20 of the
Act failed. The convictions of both appellants were confirmed but the
penalties were amended to the extent that the condition requiring them to
do community service was expressed in hours rather than days. The High
Court (Botha J, with Sithole AJ concurring) ordered that:
‘1.
The appeal against the finding that the appellants were guilty of
unprofessional conduct is dismissed.
2.
The appeal against the penalties is dismissed except that the third condition of
suspension is altered to read: “That [the appellants] perform community public
service by practising [their] profession in any public service hospital for 800 hours
over a period of two years from this date”.
3.
The respondents [i.e. the appellants] are to pay the costs of the appeal, which
will include the costs of two counsel.’

[5] The appeal to this court with leave of the High Court is confined to
the penalties. It turns primarily on whether the conditions of suspension
of the penalties imposed by the Committee are competent or ultra vires
the Act. A related issue raised by the appellants is whether the imposition
of the suspension of the appellants from practice was appropriate.

[6] It is convenient first to dispose of the latter issue. In this regard the
appellants argue that the penalty imposed upon them was too severe in
the circumstances. They maintain that a suspension from practice for a
period of three or six months would have been more than adequate. I do
not agree. Given the serious light in which the offences were viewed by
the Council, it cannot be said that the sentences imposed are unduly harsh

or leave one with a sense of shock. It has been said of various
predecessors of the Council that each was the repository of power to
make findings on what was ethical and unethical in medical practice
(Meyer v SA Medical and Dental Council.1) and the body par excellence
to set the standard of honour to which its members should conform (De
La Rouviere v SA Medical and Dental Council.2) That is still so. When
the Council says that particular professional misconduct by a practitioner
is serious its assertion must be taken to heart unless there are compelling
reasons to the contrary. It is not for the court to usurp the function of the
professional body in its determination of what is or is not improper or
disgraceful. I am not persuaded that there is any reason to interfere with
the Committee’s finding. In my judgment the penalty imposed was not
inappropriate and the appellants’ submission to the contrary falls to be
rejected.

[7] I turn to the question whether the conditions of suspension imposed
upon the appellants are competent. It is necessary first to deal briefly with
the penalty provisions in s 42(1) of the Act. The sub-section reads:
(1)
Every person registered under this Act who, after an inquiry held by the
professional board, is found guilty of improper or disgraceful conduct, or conduct
which, when regard is had to such person’s profession, is improper or disgraceful,
shall be liable to one or other of the following penalties –
(a)
a caution or a reprimand or a reprimand and a caution; or
(b)
suspension for a specified period from practising or performing acts specially
pertaining to his profession; or
(c)
removal of his name from the register; or
(d)
a fine not exceeding R10 000; or
(e)
a compulsory period of professional service as may be determined by the
professional board; or

1 1982 (4) SA 450 (T) at 455H).
2 1977 (1) SA 85 (N) 97E.

(f)
the payment of the costs of the proceedings or a restitution.’
[8] The Committee which was empowered to impose the penalties in
terms of the above section is a creature of statute and derives its powers
from the Act. It can only operate within the four corners of the Act and
exercise only those authorities and powers expressly or by necessary
implication conferred upon it in terms of the Act. (See Ndamase v
Functions 4 All;3 Fedsure Life Assurance v Greater Johannesburg
Transitional Metropolitan Council.4)

[9] As a starting point in the interpretation of a statute the words used
ought to be given their ordinary grammatical meaning having due regard
to their context. Section 42(1) of the Act provides that upon conviction
for improper or disgraceful conduct a practitioner shall be liable for ‘one
or other’ of the penalties, not ‘one or more’ of the penalties therein
specified. The word ‘or’ appears immediately at the end of each penalty
provision, leading one irresistibly to the conclusion that the intention of
the Legislature was to empower the sentencing authority to impose any
one of the sentences but not a combination of one or more. The
appellants, quite rightly in my view, argued that if the Legislature had
intended to provide otherwise it would have used language consistent
with such an intention.

[10] There is no doubt that there are cases where the word ‘or’ has been
read as ‘and’, but this occurs in cases where to give the word ‘or’ its
natural meaning would give rise to an interpretation that is unreasonable,
inconsistent or unjust. (See Gorman v Knight Central GM Co., Ltd.5) This
is however not the case in the present matter. The penalties prescribed by

3 2004 (5) SA 602 (SCA) at 605G–606B.
4 1999 (1) SA 374 (CC) paras 56 and 58.
5 1911 TPD 597 at 610.

the section were clearly intended to be alternative options available to the
sentencing authority.6 Moreover, as this judgment demonstrates, such an
interpretation does not render the Committee less effective in disciplining
the members of the profession.

[11] Reading ‘or’ as ‘and’ has been described as a violent expedient
which ought not to be adopted, except in the last resort, for the simple
reason that ‘or’ does not mean ‘and’, and when the Legislature uses ‘or’ it
must prima facie at all events be taken to mean ‘or’ and not ‘and’
(Colonial Treasurer v Great Eastern Collieries Ltd 1904 TS 716 at 719).
It has been said:
‘  ‘[O]r’ must always be construed in its ordinary and proper sense as a disjunctive
particle signifying a substitution or an alternative, unless the context shows or
furnishes very strong grounds for presuming that the Legislature really intended the
word and to be used.  If to use the word ‘or’ in its proper and grammatical sense
would strain the plain object of the Act, the Court will presume … that ‘and’ was
intended for  ‘or’. But, … the Court must not alter words in an Act of Parliament
merely to give it a meaning such as it thinks those who framed it would have done, if
the question had presented itself to them.’ (See S v Pretorius7)

[12] In similar vein this Court in Ngcobo v Salimba CC8 (per Olivier
JA) said:
‘It is unfortunately true that the words ‘and’ and ‘or’ are sometimes inaccurately used
by the Legislature and there are many case in which one of them has been held to be
the equivalent of the other (see the remarks of Innes CJ in Barlin v Licensing Court
for the Cape 1924 AD 472 at 478). Although much depends on the context and the
subject-matter (Barlin at 478), it seems to me that there must be compelling reasons
why the words used by the Legislature should be replaced; in casu why ‘and’ should

6 This intention is borne out by the original structure of s 42(1)(a), (b) and (c) and the amendments
made by Act 79 of 1990 and Act 89 of 1997.
7 1969 (1) SA 235 (T) at 237 F-G.
8 1999 (2) SA 1057 (SCA) at 1067J-1068B.

be read to mean ‘or’, or vice versa. The words should be given their ordinary meaning
“. . . unless the context shows or furnishes very strong grounds for presuming that the
Legislature really intended” that the word not used is the correct one (see Wessels J in
Gorman v Knight Central GM Co Ltd 1911 TPD 597 at 610; my emphasis). Such
grounds will include that if we give ‘and’ or ‘or’ their natural meaning, the
interpretation of the section under discussion will be unreasonable, inconsistent or
unjust (see Gorman at 611) or that the result will be absurd (Greyling and Erasmus
(Pty) Ltd v Johannesburg Local Road Transportation Board and Others 1982 (4) SA
427 at 444C-D) or, I would add, unconstitutional or contrary to the spirit, purport and
objects of the Bill of Rights (s 39(2) of the 1996 Constitution).’

[13] It follows therefore that the Committee could select only one of the
penal options listed in paragraphs (e) to (f) of s 42(1) and not ‘one or
more’ or a combination of them.

[14] This brings me to the conditions for the suspension of the penalty.
Counsel for the appellants drew attention to the monetary value of the
professional services rendered by specialist practitioners of their
qualification and experience, which, when calculated at the then
prevailing rate, amounted to between R800 and R1200. On that basis,
counsel submitted that the monetary equivalent of the total periods of
community service imposed on the appellants was grossly out of
proportion to the largest monetary fine which the Committee was
empowered to impose (R10 000, in terms of s 42(1) of the Act). The
penalty sections, he said, should be interpreted in a manner which
rendered them consistent. Counsel also submitted that the imposition of
community service as a condition of suspension was simply an
impermissible attempt to levy a fine under another guise. So also was the
order for payment to the Council of the amounts received as kickbacks.
Finally, in this regard, said counsel, the imposition of community service

and the order for payments were duplications of penalties clothed as
conditions of suspension; the effect was that the Committee was in reality
imposing three penalties when it was empowered by s 42(1) to impose
only one.

[15] All these submissions depend on the same fallacy, viz that the
conditions which may be imposed under s 43(1)(b) are limited by the
terms of the penalty powers of the Council (s 42(1)). Counsel for the
respondent submitted that the purpose of conditions of suspension is to
ameliorate the penalties. More correctly, I think, the purpose is to provide
a means of avoiding strict performance of the penalty. None of the
available penalty options provided for in the section standing alone would
have constituted an appropriate punishment. A caution and discharge or a
caution or reprimand was out of the question, given the seriousness of the
misconduct. So also the removal of the appellants from the roll or an
outright suspension from practice for five years, both of which would
have been too harsh and totally against the weight of the evidence
presented by the respondents in mitigation. A fine would have been too
lenient. Such was the dilemma in which the Committee found itself.

[16] In its present form s 43(1)(b) of the Act provides a clear-cut
solution. The section provides for the postponement or suspension of the
operation of the penalty imposed under s 42(1) on conditions ‘as may be
determined by’ the Committee. It reads:
‘(1)
Where a professional board finds a person referred to in section 42(1) guilty of
conduct referred to therein, it may –
(a)
. . .
(b)
impose any penalty mentioned in paras (b), (c) or (d) of section 42(1), but
order the execution of such penalty or any part of the penalty to be suspended for such
period and on such conditions as may be determined by it.’

[17] Although there is no specific provision in the Act for the
imposition of a condition requiring an offending medical practitioner to
perform community service or to pay the amount of perverse incentives
received by him or her to the Council, these conditions are ancillary to the
power it had to impose the penalty provided for in s 42.

[18] A condition of suspension cannot multiply penalities. What it can
do is to offer the affected person a choice to avoid the single penalty laid
down by the Committee by voluntarily adopting another course of action,
(see R v Hendricks;9 R v Littlejohn10) which in its totality may or may not
include or exceed a prescribed penalty. The imposition of a condition
does not compel performance with its terms; the affected person is
perfectly free to submit himself or herself to the penalty and ignore the
conditions. Thus a power to lay down the conditions provides scope for
creativity on the part of the sentencing authority (without infringing on its
penalty power). As the record shows, the Committee took full advantage
of the scope for creativity when deciding on the conditions.

[19] In the court below Botha J correctly referred to R v Fourie11 to
justify the conclusion that a condition of suspension may require an
accused to do something that would otherwise be outside the jurisdiction
of a court. The question in R v Fourie was whether the court was limited
in the amount of compensation it could award to the complainant upon
conviction of the accused. The court concluded that it was not. This is
because it was empowered by the relevant section to impose such

9 1915 CPD 821.
10 1946 TPD 161 at 168.
11 1947 (3) SA 468 C at 470.

conditions as ‘in its discretion it thinks suitable.’ (See R v Fourie at 470).
The power to impose conditions under s 43(1) is no less broad.
[20] For the above reasons I am of the view that the Committee did not
misdirect itself in any way in imposing the conditions it did and there is
no basis to interfere with its finding.

[21] Accordingly the appeal is dismissed with costs.

______________________
KK MTHIYANE

JUDGE OF APPEAL

CONCUR:

HOWIE P
HEHER JA
MLAMBO JA
MAYA JA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
31 March 2008

Status:
Immediate

Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.

PREDDY v HEALTH PROFESSIONS COUNCIL OF SA (54/2007)
[2008] ZASCA 25 (31 March 2008).

[1] The SCA today dismissed an appeal by two specialist medical
practitioners, Dr Julius Preddy and Dr Percy Miller against the decision
of the Pretoria High Court upholding the decision of a Professional
Committee of Enquiry which found them guilty of disgraceful conduct.

[2] The charges arose from an arrangement which they had with a
radiology firm in terms of which they received certain payments as
‘kickbacks’, in return for referring patients to the firm concerned. During
the period 1993 to 1999 Dr Preddy received R156 792 and Dr Miller,
R756 153.

[3] The Committee found that these payments constituted perverse
incentives and suspended the two doctors from practice for two years on
certain conditions. Two of the conditions were that (1) they pay the
amounts received to the Health professions Council of South Africa and
(2) that they do community service at certain public hospitals for 800
hours (more detailed particulars of the penalty appears in the full
judgment).

[4] The SCA rejected the argument advanced on behalf of the doctors
that the conditions imposed by the Committee were inappropriate and
dismissed their appeal with costs.