Professional Indemnity Law


Posted 18 June 2020

Thandi Molaba and Unity Ramaifo (Under supervison of Director Jerry Mayaba)

Section 41A of the Health Professions Act 56 of 1974.

There has been a recent hike in the number of “raids” conducted by the Health Professions Council of South Africa, in view of investigating complaints lodged against medical practitioners. Here is what you ought to know, when they come knocking at your door.

Section 41A (1) provides that the Registrar of the HPCSA may, where necessary, in order to establish more facts, appoint an officer of the professional board as an investigating officer for the purposes of investigating a complaint.

Section 41A (2) further provides that the Registrar may appoint “any person”, other than a member of the professional board, who is not in the full-time employment of the professional board, as investigating officer for a “particular investigation”, or to assist the investigating officer contemplated in subsection (1) with a particular investigation.

Such appointed person is issued with a certificate in accordance with section 41A (4), confirming that he or she has been appointed to investigate or to assist with that particular investigation. It goes without saying that a certificate must be issued in every instance where a complaint is being investigated in terms of this section. The certificate should identify the complaint, state details of the investigating officer, details of the Registrar, date of appointment and whether the appointment is in terms of section 41A (1) or (2).

The investigating officer is empowered by the Act to consult with or seek information from any person, including the person against whom the complaint has been lodged. One manner in which these investigations are conducted is by way of search and seizure. This manner of investigating is obviously intrusive in nature and is therefore riddled with controversy. It is, therefore, advisable to acquaint yourself with the correct procedure for conducting search and seizures.

Section 41A (6) of the Act regulates the way in which search and seizures are conducted. This section empowers the investigating officer to request any person to produce any article which relates to the complaint being investigated. There must be reasonable grounds to believe that such article is on the premises searched. The section further requires the investigating officer to apply to court for a warrant to conduct the search and seizure. In applying for the warrant, the investigating officer must indicate whether the assistance of a police official(s) is required or not, and if so, provide the details of such officials.

Of importance to medical practitioners and the general public is section 41A(6)(g) which empowers any person whose premises is being searched to demand from the investigating officer and/or police official(s), a copy of the warrant. One should also be sure to demand, from the investigating officer, a certificate of appointment provided by the HPCSA conferring authority to investigate that specific matter. 

One must also be on alert as to whether the warrants used to conduct search and seizures have been properly obtained. A proper warrant must specifically detail the following, amongst other things:

  1. Details of the complaint;
  2. The purpose of the search;
  3. The premises to be searched;
  4. The article(s) to be seized;
  5. The name of the investigating officer and/or police official(s), if any;
  6. Powers of the investigating officer(s).

It is important that these searches are conducted in a just and dignified manner, in order to ensure that the rights of involved parties are preserved. Fair and just investigations must be the order of the day.