Medical, legal and other professionals are not without
recourse when facing false or malicious charges laid against them with
professional bodies. This is the lesson that can be drawn from a recent judgment
of the Pietermaritzburg High Court, which comes as a warning of the potential
consequences for anyone considering laying malicious complaints with the Health
Professions Council or indeed any other professional regulator such as the Law

The merits of the case are still to be considered, but it
does bring into focus the potential for a practitioner to seek recourse against
a malicious complaint once the regulator has dismissed it.
In the case of Holden v Assmang Limited, the plaintiff, a health practitioner,
is suing for malicious prosecution. She claims that the complainant wrongfully
and maliciously laid false charges with the Health Professions Council of South
Africa (HPCSA).

To succeed with a malicious prosecution claim, one must show

1. the defendant set the law in motion, instigated or
instituted the proceedings;
2. the defendant acted without reasonable and probable cause;
3. the defendant acted with malice or intent to injure;
4. the prosecution has failed; and
5. damages were suffered. This could take the form of general damages for
insult and diminished reputation and even loss of earnings.

For the purposes of prescription, which was the issue that
the court had to decide in its recent judgment, the court ruled that the
three-year prescription period commenced once the HPCSA had dismissed the
complaint, not when the complaint was first delivered. In making this ruling,
the court opened the way for the medical practitioner to proceed with her
damages claim.

We will be following this case with great interest, but for now, this at least
provides a warning that laying an unfounded or malicious complaint is not
without risk to the complainant.

What’s more, although this case deals specifically with an
HPCSA complaint, it could be pertinent to other professionals too. Members of
the public should bear in mind that filing a fabricated complaint motivated by
malice or improper intent against a professional with any professional
disciplinary body is not without recourse. Indeed, it may lead to a claim for
malicious prosecution and damages.