| (1) | The registrar may, where necessary in order to establish more facts, appoint an officer of the professional board as an investigating officer for the purposes of this section. |
[Subsection (1) substituted by section 40(a) of Act No. 29 of 2007]
| (2) | If the registrar deems it necessary, he or she 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. |
[Subsection (2) substituted by section 40(b) of Act No. 29 of 2007]
| (3) | A person appointed in terms of subsection (2) shall, for the purpose of the investigation in question, have the same powers and duties as the investigating officer contemplated in subsection (1). |
| (4) | The registrar shall issue to every person appointed under subsection (1) or (2) a certificate to the effect that he has so been appointed, and, in the case of a person appointed for, or to assist with, a particular investigation, that he has been appointed for such investigation, and in the exercise of his powers and the carrying out of his duties that person shall on demand produce such certificate. |
| (5) | If the registrar deems it necessary for the achievement of the objects of this Act, he or she may institute or cause to be instituted an investigation— |
| (a) | into an alleged contravention of, or failure to comply with, any provision of this Act; |
| (b) | in order to determine if any provision of this Act applies to or has been contravened by a registered person; and |
| (c) | into a charge, complaint or allegation of unprofessional conduct by a registered person. |
[Subsection (5) substituted by section 40(c) of Act No. 29 of 2007]
| (a) | An investigating officer carrying out an investigation in terms of this section may request any person to— |
| (i) | produce to him or her any book, document, electronic data or thing which such investigating officer on reasonable grounds believes to relate to the matter which he or she is investigating, and which such investigating officer on reasonable ground believes to be— |
| (aa) | on any premises which are owned by or in the possession of or controlled by such person; or |
| (bb) | in the possession of or under the control of or upon such person; and |
| (ii) | furnish such explanations to him or her as he or she may reasonably require in relation to any such book, document, electronic data or thing. |
| (b) | Subject to paragraph (h), an investigating officer carrying out an investigation in terms of this section must apply to a magistrate or a judge for a search warrant for— |
| (i) | any premises on which the investigating officer on reasonable ground believes one or more articles referred to in paragraph (a) may be found; or |
| (ii) | any person whom the investigating officer on reasonable grounds believes to have in his or her possession or upon his or her person or under his or her control one or more articles referred to in paragraph (a). |
| (c) | The magistrate or judge to whom an application in terms of paragraph (b) is made may issue the search warrant if it appears to him or her from information on oath that there are reasonable grounds for believing that any such article is— |
| (i) | upon or at any such premises within his or her area of jurisdiction; or |
| (ii) | in the possession or under the control of or upon any such person within his or her area of jurisdiction. |
| (d) | A search warrant issued under paragraph (c) must require the investigating officer and, if so requested by the investigating officer, any named police official or police officials who have agreed to assist in executing the search warrant, to seize the article or articles in question, and must to that end authorise such investigating officer and police official or police officials to search any person identified in the warrant or to enter and search any premises identified in the warrant and to search any person found on or at such premises, |
| (e) | A search warrant issued under paragraph (c) must be executed by day, unless the magistrate or judge issuing the warrant in the warrant authorises the execution thereof by night. |
| (f) | A search warrant may be issued under paragraph (c) on any day and must be of force until it is executed or cancelled by the magistrate or judge who issued it or, if such person is not available, by a person with like authority. |
| (g) | An investigating officer executing a warrant under this section must after such execution, upon demand of any person searched or who owns or is in possession of or controls any premise searched or whose rights in respect of any search or article seized under the warrant may have been affected, hand to such person a copy of the warrant so executed. |
| (h) | An investigating officer carrying out an investigation in terms of this section may without a search warrant issued under paragraph (c) search any person or premises for the purpose of seizing any article referred to in paragraph (a) if— |
| (i) | the person concerned consent to such search for and the seizure of the article in question; |
| (ii) | the person who may consent to the search of the premises consents to such search for and the seizure of the article in question; or |
| (iii) | the investigating officer on reasonable grounds believes that a search warrant will be issued to him or her under paragraph (c) if he or she applies for such warrant and that the delay in obtaining such warrant would defeat the object of the search. |
[Subsection (6) substituted by section 40(d) of Act No. 29 of 2007]
| (7) | [Subsection (7) deleted by section 40(d) of Act No. 89 of 1997] |
| (a) | The registrar or an investigating officer who carries out an investigation under this section, shall compile a report of the investigation, and a report compiled by an investigating officer shall be submitted to the registrar. |
| (i) | If such a report reveals prima facie evidence of unprofessional conduct contemplated in this Act and no complaint or charge has been lodged or laid or allegation regarding the conduct in question has been made for the purpose of an inquiry in terms of section 41, such report shall be deemed to be a complaint made for that purpose, and the registrar shall serve a copy thereof on the registered person concerned. |
| (ii) | If such a report reveals prima facie evidence which makes it desirable that an investigation in terms of section 51 be instituted, the registrar shall serve a copy thereof on the health committee to further investigate and deal with the matter in terms of this Act. |
| (iii) | If such a report does not reveal prima facie evidence of unprofessional conduct contemplated in this Act, the registrar shall serve a copy thereof on the registered person concerned. |
[Subsection (8)(b) substituted by section 40(e) of Act No. 29 of 2007]
| (c) | To the extent that such a report contains statements of witnesses which would have been admissible as oral evidence at an inquiry in terms of section 41 or an investigation in terms of section 51, the provisions of section 213 of the Criminal Procedure Act, 1977 (Act 51 of 1977), shall apply mutatis mutandis in respect of those statements at such an inquiry. |
[Subsection (8)(c) substituted by section 40(e) of Act No. 29 of 2007]
| (a) | A person who carries out or assists with the carrying out of an investigation in terms of this section, shall keep or assist in preserving confidentiality in respect of all facts which come to his or her notice in the performance of his or her functions, and shall not disclose any such fact to any person except the registrar, the president, chairperson or a relevant professional board or the public prosecutor concerned in the case of an offence in terms of this Act, or by order of a court. |
| (b) | Notwithstanding the provisions of paragraph (a), no personal particulars regarding a patient shall be disclosed to any person except by order of a court or with the consent of the presiding officer at an inquiry contemplated in section 41 or an investigation contemplated in section 51. |
[Subsection (9) substituted by section 40(f) of Act No. 29 of 2007]
| (a) | [Subsection (10)(a) deleted by section 40(h) of Act No. 89 of 1997]; |
| (b) | Such an order shall be executed as if it were a judgment in a civil case in a magistrate's court. |
| (a) | refuses or neglects to produce any book, document, electronic data or thing to any person who is in terms of this section authorised to ask for it; |
| (b) | hinders or obstructs the registrar or an investigating officer in the exercise of his or her powers or the carrying out of his or her duties; |
| (c) | pretends that he or she is the registrar or an investigating officer; |
| (d) | contravenes a provision of subsection (9), |
shall be guilty of an offence and liable on conviction—
| (i) | in the case of a contravention contemplated in paragraph (a), (b) or (c), to a fine or to imprisonment for a period not exceeding twelve months or to both a fine and such imprisonment; |
| (ii) | in the case of a contravention contemplated in paragraph (d), to a fine or to imprisonment for a period not exceeding two years or to both a fine and such imprisonment. |
[Subsection (11) substituted by section 40(g) of Act No. 29 of 2007]
| (12) | The provisions of this section shall be without prejudice to the power of any authority to institute an investigation into any alleged contravention of, or failure to comply with, any provision of this Act. |
[Section 41A inserted by section 5 of Act No. 58 of 1984]
