About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2017
>>
[2017] ZAWCHC 96
|
|
South African Society of Physiotherapy v Equine Librium College and Others (16874/2013) [2017] ZAWCHC 96 (11 September 2017)
Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
number: 16874/2013
Before: The Hon. Mr Justice Binns-Ward
Hearing: 29 August 2017
Judgment:
11 September 2017
In
the matter between:
SOUTH
AFRICAN SOCIETY
OF
PHYSIOTHERAPY
Plaintiff/Respondent
and
EQUINE
LIBRIUM
COLLEGE
First
Defendant/Excipient
THE
SOUTH AFRICAN VETERINARY COUNCIL
Second
Defendant/Excipient
THE MINISTER OF AGRICULTURE, FORESTRY
AND
FISHERIES
Third
Defendant/Excipient
JUDGMENT
[1]
The matter for determination at this stage
of this case is the exceptions by each of the three defendants to
three of the claims
advanced by the plaintiff in its particulars of
claim. The defendants contend that the allegations in the
plaintiff’s
pleading do not make out a case for the relief that
has been sought in terms of prayers 4 to 6 of the particulars of
claim.
[2]
The plaintiff is the South African Society
of Physiotherapy. The Equine Librium College, the South African
Veterinary Council
(‘the Veterinary Council’) and the
Minister of Agriculture, Forestry and Fisheries (‘the
Minister’) are
the first, second and third defendants,
respectively.
[3]
The Veterinary Council is a statutory body
established under the Veterinary and Para-Veterinary Professions Act
19 of 1982 (‘the
Act’). The Minister is the member
of Cabinet politically responsible for the administration of the
Act. The plaintiff
is a voluntary association that has amongst
its objectives the promotion and protection of the organised
physiotherapy profession.
[4]
Physiotherapy is a health profession that
is officially recognised in terms of Health Professions Act 56 of
1974. In terms
of s 17 of that Act, ‘
except
in so far as it is authorised by legislation regulating health care
providers
’,
[1]
only persons duly registered under that Act may practise as
physiotherapists. The Health Professions Act provides for the
existence a professional board to represent every health profession
that is registered in terms of that Act. The health professions
registered in terms of the Health Professions Act are professions
concerned mainly with the treatment of human beings.
[2]
[5]
The plaintiff’s members are
professionally qualified and practise the profession of
physiotherapy. They are called ‘physiotherapists’
and/or ‘physical therapists’, and it may be assumed that
they are duly registered as such in terms of the Health Professions
Act. According to the particulars of claim –
Save for [the plaintiff’s] members and persons
trained and qualified under South African law to use these words and
distinctive
titles in association with the physical therapy or
physiotherapy services they render
1.
there is no other
profession known as physiotherapy or physical therapy in South
Africa; and
2.
there are no
professional people known as physiotherapists or physical therapists;
3.
there
are no other professional persons who are entitled to call themselves
physiotherapy or to practice the profession of physiotherapy
and/or
physical therapy.
The plaintiff has also alleged that the profession of physiotherapy
and those who practise it ‘
have acquired a high reputation
and prestige amongst the public, including members of other branches
of the medical profession
’. It has also alleged that
all practising physiotherapists whose area of focus is the treatment
of animals must obtain
a degree in physiotherapy before obtaining
‘
specialist qualifications through postgraduate studies to
treat and perform physiotherapy on animals
’.
[6]
The plaintiff has alleged in its
particulars of claim that the first defendant falsely holds itself
out as a tertiary education
institution that offers a 4 year
full-time course in ‘veterinary physiotherapy’ that,
according to a brochure that
it gives out, is ‘
currently
in the process of being registered as a BSc Veterinary Physiotherapy
degree
’. The plaintiff has
alleged that no qualification called ‘veterinary physiotherapy’
is recognised by either
the medical or veterinarian professions in
South Africa. It has pleaded that ‘[p]
hysiotherapists
whose specialist area is the treatment of animals may possess both a
degree in physiotherapy offered by a higher
education institution, as
well as a post graduate degree in the treatment of animals
’.
The plaintiff’s complaint against the first defendant is that
the latter has been unlawfully ‘
passing-off
the services and qualifications it offers as those of genuinely
qualified physiotherapists reposed in members of the
[plaintiff]’.
[7]
In the first three of the seven heads of
relief prayed for in prayers 1 to 3 of its particulars of claim the
plaintiff has sought
(a) a declaratory order that ‘only a
person who qualifies for registration with the HPCSA
[3]
as a physiotherapist may use the distinctive title “physiotherapist”
or “physical therapist” or conduct
the practice of
“physiotherapy” or “physical therapist”’;
(b) an interdict restraining the first
defendant from calling itself
a university offering degrees in physiotherapy irrespective of
whether or not the word is used with
the words ‘animal’,
‘veterinary’, ‘equine’ or ‘canine’;
and (c) an interdict restraining
the first defendant from passing
itself off as being legally competent to qualify anyone as a
‘animal’, ‘veterinary’,
‘equine’
or ‘canine’ physiotherapist or physical therapist.
Those claims are not the subject of the
exceptions that have been
noted against the pleading. I have described them in some
detail to contextualise the matters that
are pertinent to the
exceptions.
[8]
The relief sought in terms of prayer 4 is
an interdict restraining the Veterinary Council from making any
recommendations to the
Minister ‘
for
the promulgation of a para-veterinary profession of “Veterinary
Physiotherapy”, or any profession
containing the title “physiotherapist”
or Physical therapist” whether in shortened form or not and
whether in
connections with the word[s] “animal”,
“veterinary”, “equine” or “canine”
’.
It is trite that a prohibitory interdict is not an appropriate remedy
for an injury already suffered.
[4]
Despite its allegation that the Veterinary Council has already made
pertinent recommendations to the Minister, I shall assume
in its
favour for present purposes that it seeks the interdict sought in
prayer 4 to prevent any further recommendations of the
sort
complained of.
[9]
In terms of prayer 5 an interdict is sought
against the Minister restraining him from ‘
prescribing
any degrees, diplomas and certificates which shall entitle the
holders thereof to registration in terms of this Act
(sic)
to practice a veterinary
profession or para-veterinary profession of “Veterinary
Physiotherapy”, or any profession containing
the title
“physiotherapist” or “physical therapist”
whether in shortened form or not and whether in connection
with the
word
[s] “
animal”,
“veterinary”, “equine” or “canine”
’.
I think it may be deduced in the context of the pleading read as a
whole that the reference in prayer 5 to ‘this
Act’ was
intended to mean the Veterinary and Para-Veterinary Professions Act.
[10]
An interdict against the Minister is also
sought in terms of prayer 6 of the particulars of claim restraining
him from ‘
declaring by way of
notice in the gazette the provisions of the Veterinary and
Para-Veterinary Professions Act applicable to the
profession of
“Veterinary Physiotherapy” or any other profession which
has whether in shortened form or not and whether
in connection with
the word
[s] “
animal”,
“veterinary”, “equine” or “canine”
containing the title “physiotherapist”
or “physical
therapist”
’.
[11]
A consideration of the exceptions will be
assisted if the import of the relief sought in terms of prayers 4 to
6 is appreciated
in the pertinent statutory context.
[12]
The object of the Act is apparent from its
long title. It is an Act ‘
to
provide for the establishment, powers and functions of the South
African Veterinary Council; for the registration of persons
practising veterinary professions and para-veterinary professions;
for control over the practising of veterinary professions and
para-veterinary professions; and for matters connected therewith
’.
[13]
Section 3 of the Act provides in broad
terms for the responsibilities of the Council. The provision
reads as follows:
The objects of the council shall be—
(a) to regulate the practising of the veterinary
professions and para-veterinary professions and the registration
of persons
practising such professions;
(b) to determine the minimum standards of tuition and
training required for degrees, diplomas and certificates entitling
the holders
thereof to be registered to practise the veterinary
professions and para-veterinary professions;
(c) to exercise effective control over the professional
conduct of persons practising the veterinary professions and
para-veterinary
professions;
(d) to determine the standards of professional conduct
of persons practising the veterinary professions and para-veterinary
professions;
(e) to encourage and promote efficiency in and
responsibility with regard to the practice of the veterinary
professions and para-veterinary
professions;
(f) to protect the interests of the veterinary
professions and para-veterinary professions and to deal with any
matter relating
to such interests;
(g) to maintain and enhance the prestige, status and
dignity of the veterinary professions and para-veterinary professions
and the
integrity of persons practising such professions;
(h)
to advise the Minister in relation to
any matter affecting a veterinary profession or a para-veterinary
profession
.
(Underlining for
emphasis.)
In terms of s 4(f), the Council may exercise or perform any
power or function conferred or imposed upon it by or under this
Act
or any other law.
[14]
In terms of s 5(2), the Council is
comprised of –
(a)
one officer of
the Department of Agriculture who is a veterinarian or veterinary
specialist, designated by the Minister;
(b) six veterinarians or veterinary specialists from the
ten persons elected as contemplated in subsection (1)(a)(i), of whom
–
(i) the three persons with the most votes in that
election qualify automatically to be members of the council
(ii) three further persons shall be designated by the
Minister;
(c) one representative of each para-veterinary
profession elected as contemplated in subsection (1)(a)(ii);
(d) one person from the persons referred to in
subsection (1)(c)(i), designated by the Minister;
(e) five persons designated by the Minister from the
persons referred to in subsection (1)(c)(ii) and (iii), of whom at
least one
shall be a non-veterinarian;
(f) one person from each of the universities in the
Republic that has a faculty of veterinary science, designated by the
Minister
from the nominations referred to in subsection (1)(d); and
(g) one representative designated by the South African
Veterinary Association from its members.
[15]
A ‘para-veterinary profession’
is defined in s 1 of the Act as ‘
a
profession referred to in a notice under section 21
’.
[16]
In terms of s 20(1), the Minister may
–
(a) …
from
time to time
on the
recommendation of the council
prescribe the
degrees, diplomas and certificates, granted after examination
by a university or other educational
institution, which shall entitle
the holders thereof to registration in terms of this Act to
practise veterinary
professions or para-veterinary
professions
(b) Different degrees, diplomas or certificates may be
so prescribed in respect of different veterinary professions or
para-veterinary
professions.
[17]
Section 21(1) provides:
The Minister may
on the recommendation of
the council
by notice in the
Gazette
declare
the provisions of this Act applicable to any profession
which has as its object the rendering of services
supplementing the
services which in terms of the rules are deemed to pertain
specially to a veterinary profession.
[18]
Section 29(1) provides:
The
Minister
may
prescribe
the
designations which are reserved for allocation to persons registered
or deemed to be registered in terms of
this
Act
to
practise
veterinary profession
s
or
para-veterinary profession
s
[19]
The essence of the allegations in the
particulars of claim in support of the claim against the Veterinary
Council is that the Council
has, through its registrar, made
recommendations to the Minister in terms of s 43(1)
[5]
read with s 21(1) of the Act regarding the declaration of a
para-veterinary profession of ‘veterinary physiotherapy’,
and to enable the Minister to prescribe degrees, diplomas and
certificates granted after examination by a university or educational
institution. If these recommendations are accepted, it will
enable the holders of the prescribed qualifications to obtain
registration in terms of the Act to practise as veterinary
physiotherapists using the designation ‘physiotherapist’
or ‘physical therapist’.
[20]
The tenor of the Council’s
recommendations is not alleged in the pleading, other than in the
general terms that I have described.
It is alleged that upon a
proper interpretation of the recommendations, ‘
the
effect of the recommended declaration of a para-veterinary
profession known as “veterinary physiotherapy”
will
be to –
1.
debase
the name and distinctive titles “physiotherapist”,
“physical therapist”, Physiotherapy” and “physical
therapy”
2.
authorise
the first defendant and others to infringe upon the the goodwill,
name and distinctive titles “physiotherapist”,
“physical
therapist”, Physiotherapy” and “physical therapy”
and hold themselves out as physiotherapists
or physical therapists
whereas in law and in fact they are not physiotherapists or physical
therapists;
3.
…
legalise an unlawful act
4.
mislead
the public into believing that:
4.1
the
services of the first defendant and its ‘graduates’ are
those of physiotherapists and/or physical therapists; and/or
4.2
associated
with the services of the plaintiff and its members.
’
[21]
The essence of the first defendant’s
exception is that the relief sought by the plaintiff in terms of
prayers 4 to 6 is incompetent,
in that it would entail prohibiting
the Veterinary Council and the Minister from carrying out and
exercising the very functions
and powers that the Act provides for
them. The Veterinary Council’s exception, which is
limited to the relief sought
in terms of prayer 4 - being the only
head of relief sought against it - is predicated on the same
contention. The Minister’s
exception, which was drafted
more in the style of a notice of objection than an exception because
it lacked any prayer for the
upholding of the exception and the
dismissal of any of the claims, is also brought on the basis that the
relief sought by the plaintiff
is ‘impermissible in law’
because it would prevent him from exercising his statutory powers.
[22]
In my judgment the exceptions are well
taken.
[23]
The plaintiff has no right to inhibit the
formulation by the Veterinary Committee of any recommendations it may
wish to make to
the Minister in terms of the Act. Any
recommendations that it makes have no direct effect on the
plaintiff. The recommendations
can only have an external effect
if and when they are accepted by the Minister. It is not the
function of the courts to determine
whether the recommendations made
by the Veterinary Council are well-founded or not; that is the
Minister’s function in terms
of the statute. Assuming
that the plaintiff’s rights might be adversely affected, as
alleged, if the Minister
were to accept the Council’s
recommendations, the principles of administrative justice, enshrined
in s 33 of the Constitution
and legislatively provided for in
terms of the Promotion of Administrative Justice Act 3 of 2000
(‘PAJA’), would require
the Minister to afford the
plaintiff the opportunity to make representations before he made a
decision. Absent special circumstances,
such as the existence
of demonstrable mala fides on the part of the Minister (which has not
been alleged), an interdict is not
available to pre-empt the
administrative process.
[24]
It was well-established, even in the
pre-constitutional era, that courts do not accept a supererogatory
function in respect of decision-making
allocated by statute to
government or regulatory bodies; see for example
Molteno
Bros. & Others v South African Railways and Harbours
1936
AD 321
and
Gool v Minister of Justice
and Another
1955 (2) SA 682
(C). In
Molteno
,
the Appellate Division held that it was not for the court to
prescribe to a statutory body how to exercise its function and, that
in the absence of any indication of mala fides by the body in the
exercise of its discretion, the court had no power to intervene
in
its functioning. In the modern era it is recognised that the
Constitution provides for a separation of powers between
the
executive, legislative and judicial branches of government, and the
courts have pronounced in judgments of the highest authority
that the
judiciary must not trench inappropriately on the domains of the other
branches of government; see for example
Doctors
for Life International v Speaker of the National Assembly and Others
[2006] ZACC 11
,
2006 (6) SA 416
(CC) at para 37
[6]
and
International Trade Administration
Commission v SCAW South Africa (Pty) Ltd
[2010] ZACC 6
; 2012 (4) SA 618 (CC);
2010 (5) BCLR 457
at
paras. 90-110. I think it is clear that for a court to grant
interdictory relief against the Veterinary Council and/or
the
Minister of the nature sought by the plaintiff would be to do just
that. It would entail impermissibly prescribing to
the second
and third defendants how to carry out their statutory functions.
[25]
Moreover, any decision by the Minister in
terms of the pertinent provisions of the statute will qualify as
administrative action
within the meaning of PAJA. Were the
Minister to accept recommendations that would bring about a result
that was not permissible
in law, he would be acting beyond his
powers, and it would be open to any adversely affected party to
impugn his decision by applying
for judicial review in terms of
PAJA. The principle of subsidiarity dictates that challenges to
administrative action must
be brought under the auspices of PAJA.
The particulars of claim do not contain any allegations that would
justify an exception
to the limiting effect of the principle on the
manner in which a litigant may seek remedial relief. They also
do not contain
any allegations why, should the Minister actually
exceed his powers, relief sought by way of the ordinary remedy of
judicial review
(coupled, if appropriate, by interim interdictory
relief pending such review) would not afford the plaintiff adequate
protection.
It has been settled for more than a century
now that proof of the absence of an adequate alternative remedy is
one of the requirements
for final interdictory relief; see
Setlogelo
v Setlogelo
1914 AD 221
at 227.
[26]
The word physiotherapist is in ordinary
English usage (as are most other professional appellations). In
South Africa the right
to call oneself or practise as a
physiotherapist is regulated in terms of the Health Professions Act,
and any exclusiveness in
the appellation is derived from that Act.
The allegation that only members of the profession registered under
the designation
‘physiotherapy’ in terms of the Health
Professions Act may legally practise using the titles
‘physiotherapist’
or ‘physical therapist’ to
the exclusion of any power by the Minister to designate a
para-veterinary profession to
be called ‘veterinary
physiotherapy’ is unsupported by any reliance on a statutory
provision having that effect. Indeed,
as mentioned above, the
Act under which the profession practised by the plaintiff’s
members is registered expressly acknowledges
that any exclusivity
afforded by registration in terms of the Health Professions Act is
subject to legislatively provided exceptions
created by other
legislation regulating health care providers. The dictionary
definition of ‘veterinary surgeon’
which is apparently
the British English equivalent of what the Oxford Dictionary
describes as the American English word ‘veterinarian’
is
‘a person qualified to treat diseased or injured animals’,
in other words a health care provider for animals.
It appears
to me therefore that the Act qualifies as a statute that could
support an exception to the exclusivity afforded to professions
registered under the Health Professions Act.
[27]
If the effect of the promulgation under the
Veterinary and Para-Veterinary Professions Act of a para-veterinary
profession to be
called ‘veterinary physiotherapy’ would
prejudice the professional status or reputation of the profession
regulated
under the Health Professions Act, as the plaintiff alleges,
that is a matter to be resolved in the first instance between the
respective
members of the Cabinet responsible for the administration
of those Acts, and the engagement of the courts in such matters is
something
that the Constitution (s 41) and the
Intergovernmental
Relations Framework Act 13 of 2005
provide should be a last resort.
This is but a further reason why the plaintiff’s claims in
terms of prayers 4 to 6
are not cognisable.
[28]
In the result the following order is made:
(a)
The
exceptions of the first, second and third defendants to the claims
advanced in prayers 4, 5 and 6 of the plaintiff’s particulars
of claim are upheld with costs.
(b)
Paragraphs
39 to 48 of the plaintiff’s particulars of claim are struck
out.
(c)
The
plaintiff is afforded a period of 15 days from the date of this order
to amend its particulars of claim, in default of which
the action
against the second and third defendants will be deemed to have been
dismissed with costs.
A.G. BINNS-WARD
Judge of the High Court
[1]
The expression ‘health care providers’
is not defined in the Health Professions Act.
[2]
See s 17(1)
of the Health Professions
Act 56 of 1974.
[3]
The Health Professions Council of South Africa, a body with juristic
personality established in terms of s 2 of the Health
Professions Act 56 of 1974.
[4]
See e.g.
Philip
Morris Inc. and another v Marlboro Shirt Co SA Ltd and another
1991 (2) SA 720
(A), at 735;
[1991] 2 All SA 177
(A), at 186.
[5]
I surmise that this was an intended reference to
s 20(1) of the Act. Section 43(1) of the Act invests the
Minister
with the power to make regulations in respect of various
aspects of the administration of the Act, including the degrees,
diplomas
and certificates that must have been obtained as a
prerequisite for the registration of the holders thereof in terms of
the Act.
[6]
Where the Court (per Ngcobo J) held, amongst
other things, that ‘
Courts must be conscious of the
vital limits on judicial authority and the Constitution’s
design to leave certain matters
to other branches of government.
They too must observe the constitutional limits of their authority.
This means that the judiciary
should not interfere in the processes
of other branches of government unless to do so is mandated by the
Constitution
’. Interference in the context posited
by the allegations in the plaintiff’s particulars of claim is
constitutionally
mandated by way of judicial review in terms of
PAJA.