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[2015] ZASCA 163
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South African Dental Association v Minister of Health (20556/2014) [2015] ZASCA 163; [2016] 1 All SA 73 (SCA) (24 November 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 20556/2014
In the matter between:
THE SOUTH AFRICAN
DENTAL ASSOCIATION NPC
APPELLANT
And
THE
MINISTER OF
HEALTH
FIRST
RESPONDENT
THE HEALTH PROFESSIONS
COUNCIL
OF SOUTH
AFRICA
SECOND RESPONDENT
THE CHAIRPERSON OF THE
PROFESSIONAL
BOARD FOR DENTAL
THERAPY AND ORAL
HYGIENE
THIRD RESPONDENT
THE DENTAL ASSISTANTS
ASSOCIATION
OF SOUTH
AFRICA
FOURTH RESPONDEN
T
Neutral
citation
:
South
African Dental Association v Minister of Health
(20556/2014)
[2015] ZASCA 163
(24
November 2015)
Coram
:
Navsa, Shongwe, Willis, Swain and Zondi JJA
Heard
:
2 November 2015
Delivered:
24
November 2015
Summary:
Health
Professions Act 56 of 1974 – discussion of steps required to
establish a new regulated health profession in terms of
that Act –
challenge to Regulations by Minister setting up regulatory regime in
respect of dental assistants – challenge
time-barred in terms
of
s 7(1)
of the
Promotion of Administrative Justice Act 3 of 2000
in
respect of most of the regulations – challenge in respect of
remaining regulations defining scope of the profession as
contemplated in
s 33
of that Act rejected – exception to
general rule relating to costs in constitutional matters applied due
to the manner in
which litigation conducted.
Order
On
appeal from:
Gauteng
Division of the High Court, Pretoria
(Ismail
J sitting as court of first instance).
The
following order is made:
The
appeal is dismissed with costs, including the costs of two counsel
where employed by each of the respondents.
JUDGMENT
Navsa
and Swain JJA
(Shongwe
and Zondi JJA concurring):
[1]
In this appeal, as in the court below, the appellant, the South
African Dental Association (SADA), an association incorporated
in
terms of section 21 of the Companies Act 61 of 1973 read with the
Companies Act 71 of 2008
and which represents a sizeable majority of
dentists in South Africa, sought to set aside regulations promulgated
by the first
respondent, the Minister of Health (the Minister),
purportedly made under the Health Professions Act 56 of 1974 (the
Act), in terms
of which he recognised dental assistants as
professionals, set qualifications to enable their registration, and
defined the scope
of the profession. The appeal will deal with the
power of the Minister in terms of the Act to make regulations
establishing and
regulating a profession, more particularly in
relation to the recognition of dental assistants as health
professionals and represents,
in juxtaposition, the interests of
dentists and those of dental assistants and involves the role of the
Minister in regulating
health-related professions.
[2]
If the fourth respondent, the Dental Assistants Association of South
Africa (DAASA), an advocate for the protection and promotion
of the
rights of dental assistants, is to be believed, the appellant has
been nothing but obstructive and has steadfastly resisted
their
struggle, since 1995, to be recognised as professionals in terms of
the Act. Furthermore, DAASA contended that the real and
underlying
objection of SADA to the recognition and regulation by the Minister
of dental assistants as professionals is the economic
impact it might
have on individual dentists who are accustomed to their dental
assistants’ low wages. In short, DAASA adopted
the attitude
that SADA is motivated purely by self-interest. Conversely, if SADA,
which represents a sizeable majority of the country’s
dentists,
is to be believed, they are particularly concerned about the welfare
of dental assistants and the interests of the public
and were
motivated in the litigation leading up to the present appeal by their
concerns that the requirement of registration for
dental assistants
coupled with prescribed minimum qualifications would result, on pain
of criminal sanction, to a gross shortage
of dental assistants. In
addition it was contended before us that SADA was intent on ensuring
that the Minister adhered to the
principle of legality and that in
its view, the Minister, in promulgating the regulations in question,
had acted beyond his powers.
SADA complained that years of
representations made by it had not been taken into account by the
Minister and that in promulgating
the regulations the Minister acted
irrationally in that he did not consider the consequences,
particularly criminal sanctions that
would attend upon dentists and
dental assistants who failed to meet the criteria for the recognition
and registration set out in
the regulations. They were emphatic that
the existing long established practice of on-the-job-training
conducted by dentists for
dental assistants, had adequately served
the dental profession.
[3]
The second respondent, the Health Professions Council of South Africa
(HPCSA) was established in terms of s 2 of the Act and
has among its
objectives the coordination of the activities of professional boards
and the promotion and regulation of inter-professional
liaisons
between health professions, in the interest of the public and the
promotion of the health of the citizens of the country.
[1]
The third respondent is the Chairperson of the Professional Board for
Dental Therapy & Oral Hygiene (the Chairperson of the
Board),
established in terms of s 15 the Act.
[4]
SADA applied to the Gauteng Division of the High Court, Pretoria, for
an order setting aside a series of regulations made by
the first
respondent, the Minister of Health, in terms of which he purported to
establish a professional board for dental assistants,
set
qualifications to enable their registration, and defined the scope of
the profession. The court below (Ismail J), dismissed
the application
and granted leave to appeal to this court. As in the court below, the
respondents are united in their opposition
to SADA. Even though this
appeal is to be decided within a narrow compass it is nevertheless
necessary, for reasons that will become
apparent, to set out the
detailed background which follows.
[5]
It is common cause that over the years dental assistants have
assisted dentists with dental procedures that require contact
with
patients. DAASA was founded in 1983 with the stated objective of
protecting and advancing the interests of dental assistants
nationally. DAASA’s membership is comprised almost entirely of
women, a large percentage of whom are also Black. It is clear
that
dental assistants is a group representative mostly of people who have
been previously disadvantaged and discriminated against.
Since 1995,
as stated above, DAASA has been advocating for the statutory
recognition and regulation of the work of dental assistants.
It
contended that this was to be achieved, inter alia, by formal
and
on-going
job training to ensure a minimum quality of service by dental
assistants. In its opposition to the relief sought by SADA,
DAASA
stated that statutory professional recognition would have the
following results: first, it would provide dental assistants
with
recognition for the value of their work and it would protect them in
the workplace; second, quality minimum training and regulation
would
ensure the best possible service to the public and create a mechanism
for redress. The parameters within which they were
to be recognised
would be determined by the scope of their work which the Minister
would define.
[6]
For approximately two decades DAASA has been in communication with
the HPSCA and the Boards for Dental Therapy and Oral Hygiene
regarding the professional recognition of dental assistants and in
that regard submissions were made to the Minister. DAASA was
emphatic
in its support for the Minister in his attempts to recognise and
regulate dental assistants within professional boundaries.
Before us
it became apparent, for reasons that will be discussed in due course,
that the only regulations that remained in dispute
were those
relating to the scope of work of dental assistants. DAASA described
the type of work that they are accustomed to doing
which includes:
(i)
Preparation and clinical maintenance of the dental surgery;
(ii)
Application, adherence and observance of universal infection control
procedures;
(iii)
Assisting dental practitioners in clinical procedures where
appropriate;
(iv)
Mixing and handling of dental materials;
(v)
Performance of administrative functions in practice management;
(vi)
Application of knowledge of radiographic examinations and processing
of radiographs;
(vii)
Application of the necessary measures to assist during emergencies in
the dental surgery;
(viii)
Implementation of occupational health and safety procedures;
(ix)
The promotion of oral health; and
(x)
Understanding and application of judicial and ethical aspects
associated with dentistry
in South African including patient
confidentiality.
[7]
It appears to us, to be incontrovertible that dental treatment is
invasive and involves body fluids such as saliva and blood
and that
individuals living with blood-borne diseases will on occasion be
patients and/or dental health care practitioners. This
would mean
that both patients and dental health care practitioners may be
exposed to a variety of microorganisms which include:
·
Cytomegalovirus;
·
Hepatitis
B Virus (HBV);
·
Hepatitis
C Virus (HCV);
·
Herpes
Simplex Virus Types 1 and 2;
·
Human
Immunodeficiency Virus (HIV);
·
Mycobacterium
Tuberculosis;
·
Streptococci;
and
·
Other
viruses and bacteria: specifically, those that infect the upper
respiratory tract.
[8]
It cannot be contested that in a dental practice infections may be
transmitted in a number of ways, including the following:
(i)
direct contact with blood;
(ii)
oral fluids; or
(iii)
other secretions;
(iv)
indirect contact with contaminated instruments;
(v)
operatory equipment, or environmental surfaces; or
(vi)
contact with airborne contaminants present either in droplet spatter
or aerosols of oral
and respiratory fluids.
[9]
The assertion by SADA that it is the dentist, and not dental
assistant who is at the forefront of infection control in a dental
practice, is not the whole truth. If regard is had to the type of
work they do, set out in para 6 above, it is clear that, working
alongside dentists, they too are exposed to the dangers of
communicable diseases and, more importantly, they play a significant
role in the prevention of such diseases.
[10]
It is necessary to record that DAASA, was not originally a party to
the litigation initiated by SADA. It only later became
a party after
the Minister had taken the point that DAASA’s exclusion was a
material non-joinder, and DAASA then sought leave
to intervene, which
SADA opposed, on the basis that the former did not have
locus
standi
because it lacked the power to sue or be sued. DAASA
sought its own relief in the form of a provisional counter claim, in
the event
that SADA was successful in its application. The order
sought was as follows:
‘
6.1
The First Respondent (The Minister of Health) must formally prescribe
a professional category
or additional professional category for
dental assistants in terms of section 35(2) of the Health Professions
Act 59 of 1974 (the
Act), or in terms of such other section/s as may
be found to be applicable.
6.2
The First, Second (HPCSA) and Third Respondents are ordered to comply
with all legal prerequisites
in order to give lawful effect to
paragraph 6.1, more particularly to comply with the provisions of
sections 15(1) to 15(5), section
24, section 33 and all such other
provisions of the Act required to normalise the profession of dental
assistants.
6.3
It is declared that regulations made for the profession of Dental
Assistant in terms of the Act
shall be deemed to have been made
regularly.’
[11]
According to the Minister, his department had over the years
identified the need to ensure a higher standard of assistance
in
dental care and was intent on ensuring that dental assistants, who
played a vital role in preparing and sanitising a patient,
and
assisting a dentist in providing efficient dental care, were properly
trained. This, according to the Minister, prompted various
consultative processes over an extended period of time, which led to
the promulgation of the regulations that are the subject of
the
present litigation.
[12]
As stated earlier, SADA challenged the adequacy of the consultation
processes, insisting that its many written representations
over a
number of years, stretching from 2001, were ignored and not
considered by the Minister and contended that, in any event,
he had
no statutory power to promulgate the regulations at the heart of the
present dispute. In short, the basis of SADA’s
case was first,
that the Minister had no statutory power to make the regulations in
question. Second, he failed to have regard
to the representations by
SADA. Third, that his actions in promulgating the impugned
regulations were irrational in that he failed
to take into account
that while there are currently 4 200 practicing dentists in
South Africa, there are only approximately
2 500 dental
assistant who meet the qualification and registration requirements
and are registered. The consequence of the
impugned regulations would
thus be, so the argument went, that around half of all persons
currently employed as dental assistants
could no longer practise as
such and that the disproportion between dentists and dental
assistants would be maintained or worsen.
In addition, dental
assistants as well as the dentists employing them would be liable to
criminal prosecution since their employment
would be unlawful. We
will, in due course, deal with the Minister’s statutory powers
and the nature and extent of the representations
by SADA and consider
whether they were taken into account by the Minister. We will also
deal with the contention that dental assistants
and dentists would be
liable to criminal sanctions in the event of the remaining
regulations remaining extant.
[13]
The affidavits filed by the HPCSA and the Chairperson of the Board,
in opposition to the relief sought by SADA, provide a comprehensive
account of the fifteen year history leading to the formulation and
promulgation of the regulations in question
[2]
and set out the details of what they considered to be an extensive
consultative process. A description is also provided of the
statutory
structure of regulation of health related services during the
pre-democracy era and of the evolution of the statutory
regime since
then, culminating in the Act in its present form. During the
apartheid years and the existence of the then South African
Medical
and Dental Council (SAMDC), the Professional Board for Dental Therapy
and the Professional Board for Oral Hygiene were
two distinct
professional boards. According to the HPCSA and the Chairperson of
the Board the struggle to establish the Professional
Board for Dental
Therapy as part of the erstwhile SAMDC was a long and bruising one.
Simply put, it appears that dental therapists
faced a struggle
similar to the one alleged by DAASA. During the existence of the
SAMDC the ‘Council’ was constituted
overwhelmingly or
solely of medical and dental professionals.
[3]
During that period the SAMDC consisted of 34 counsellors
[4]
,
all of whom came from medical and dental professions
[14]
A sea change occurred with the advent of democracy in South Africa.
As part of the general transformation process an interim
SAMDC was
created with a transformative agenda. As a result, ultimately, the
Act in its present form came into being following
a number of
significant amendments. It transformed the Council and the
professional boards making them more representative, transparent,
accessible and accountable to the greater interest of public health
and safety. We will, in due course, deal in some detail with
the
legislative evolution.
[15]
At this stage it is necessary to consider more closely SADA’s
case, as presented in its founding affidavit, and to explore
more
fully several representations it made to the Minister. At the outset,
in attacking the regulations made by the Minister, SADA
categorised
the promulgation of those regulations as administrative action and
sought to have them set aside on the basis that,
inter alia
,
the Minister had acted beyond his powers in making them. It is
necessary to set out verbatim their assertion in this regard:
‘
[T]he
actions of the HPCSA, the Minister and the Board are susceptible to
review in terms of section 33 of the Constitution and
provisions of
sections 6(2)(
a
)(i),
(
b
),
(
c
),
(
d
),
(
e
)(i),
(
e
)(iii),
(
e
)(v),
(
e
)(vi),
(
f
),
(
h
)
and (
i
)
of the PAJA [Promotion of Administrative Justice Act 3 of 2000].’
[16]
The series of regulations that were challenged by SADA is set out
hereafter:
(a)
Regulations relating to the qualifications for registration of dental
assistants, GN R338,
GG
27464, as amended by GN R580,
GG
31084, 30 May 2008 (the Original Qualification Regulations). These
regulations make provision for the qualifications required for
registration as a dental assistant. Regulation 2(2) provides that any
person who has worked as a dental assistant for a minimum
period of
five years prior to 31 March 2002 may apply to the Professional Board
for Dental Therapy and Oral Hygiene (the Board)
for registration as a
dental assistant and the board in its discretion may exempt such
person from the qualification requirements.
These regulations were
then amended on 30 May 2008, to extend the registration period for
those who had previously worked as dental
assistants, for a further
three month period from the date of publication of the amendment.
(b)
Regulations relating to the constitution of the Professional Board
for Dental Therapy and
Oral Hygiene, GN R1255,
GG
31633, 28
November 2008 (the Board Regulations). These regulations established
the Board consisting of 13 members, two of whom
were dental
assistants appointed by the Minister.
(c)
Regulations relating to the qualifications for registration of dental
assistants: Amendment,
GN R120,
GG
35045, 14 February 2012
(the Revised Qualification Regulations). These regulations again
provided that any person who had worked
as a dental assistant for a
period of five years prior to the date of these regulations, without
being registered as such, may
apply to the board for registration as
a dental assistant and the board could exempt such person from the
qualification requirements.
These amended regulations simply extended
the period within which practising dental assistants could be
exempted from the qualification
requirements.
(d)
Regulations relating to the registration of student dental
assistants: Amendment, GN R395,
GG
35363, 21 May 2012 (the
Student Qualification Regulations). These regulations amended
previously promulgated regulations concerning
student dental
assistants (GN R581,
GG
31084, 30 May 2008) with the effect
that persons who had worked as dental assistants for a period of less
than five years, prior
to the publication of this amendment, could
apply for registration as student dental assistants within four
months of the date
of the publication of this amendment.
(e)
Regulations defining the scope of the profession of dental
assistants, GN R396,
GG
35364,
21 May 2012 (the Scope Regulations). These regulations specified the
acts which would be deemed to be acts pertaining to
the profession of
dental assistants and thereby defined the scope of work of the
profession. While largely in line with the work
DAASA ascribed to
dental assistants they are more extensive and detailed.
[5]
[17]
A careful examination of the founding affidavit on behalf of SADA and
a consideration alongside it, of the heads of argument
as well as the
oral submissions before us, demonstrates confused thinking on its
part. In the affidavit of the principal deponent
on behalf of SADA it
sets out what it considers to be the architecture of the Act. It
asserts that in terms of s 17(1) a prerequisite
for practising as a
health professional is registration with the HPCSA. In paragraph 20
of the affidavit of the principle deponent
of SADA, the following
appears:
‘
20.
Therefore, the [Act] creates a legislative system in terms of which –
20.1
a person may only practice certain professions if he or she is
registered with the HPCSA
in terms of the [Act] to practice such a
profession;
20.2
only those professions recognised in terms of the HPA by the
Minister, pursuant to a decision
in terms of section 15(1), attract
the obligation of registration by persons intending to practice those
professions; and
20.3
a professional board may only be established in respect of a health
profession which is
registrable.’
In
this paragraph SADA has sketched a chicken and egg situation, namely,
a situation in which it is impossible to say which of the
two things
have to exist first and which causes the other.
[6]
However, in SADA’s heads of argument and in submissions before
us, the following was stated:
‘
The
primary challenge to the impugned regulations in this case is a
legality one. The appellant contends that the regulations are
ultra
vires
the
[Act] because that Act provides for a logical sequence in which the
creation of a new health profession must proceed. To the
extent that
the [Act] permitted of the establishment of a new profession at all,
a register for the new profession must first be
created, then a board
must be constituted and finally qualifications must be prescribed.
The regulations challenged in this application
did not follow that
order and are consequently invalid.’
As
can be seen, the latter contention is that the first step for the
recognition and regulation of a profession is the establishment
of a
register. As best as can be discerned, the argument on behalf of SADA
from there developed along the following lines: Although
the register
for the new profession must be opened as the first step in the
process, there is no express provision in the Act in
terms of which a
register for any profession must be opened. Thus, it was argued,
there is a lacuna in the Act and, following on
the principle of
legality, because of the absence of a provision in the Act of the
first step of registration, the Minister, was
precluded from
establishing a profession, setting qualification parameters and
otherwise regulating the profession. Thus, according
to SADA, the
Minister, in promulgating the series of regulations referred to
above, acted beyond his powers. The logical consequence
of this
contention is that, as things presently stand, no new health
profession may be established at all.
[18]
At this stage the chronology of events is important. It is necessary
to record that in March 2000 the Board resolved and recommended
to
the HPCSA that a register for dental assistants be established in
terms of s 18 of the Act to fall under the auspices of the
Board. In
April 2000 the HPCSA resolved that recommendations by the Board be
agreed to. The decision by the council was published
in a newsletter
during August 2000 in which the following appears:
‘
The
Professional Board for Dental Therapy and Oral Hygiene recommended
and Council resolved to establish a register for dental assistants
in
terms of section 18 of the Act, to fall under the auspices of the
Professional Board for Dental Therapy and Oral Hygiene. The
said
Professional Board believes that registering dental assistants would
in the interest of the patient, because dental assistants
do perform
professional dental acts and should therefore be properly regulated.’
[19]
Before us, counsel on behalf of SADA submitted that although its
primary contention was that there was no statutory power to
establish
a register, there was in any event no evidence provided by the
respondents that a register had
in fact
been established and
that the best that they could show was that there was an ‘in
principle’ decision to initiate a
register for dental
assistants. That submission is fallacious. Counsel on behalf of the
Minister, the HPCSA and SADA all pointed
to the statement in the
answering affidavit by the National President of DAASA that the
registration of dental assistants began
formally in 2006 and that a
register continues to exist. She stated further that there were
approximately 2522 dental assistants
registered with the HPCSA and
that at least that many dental assistants were complying with and
benefiting from the statutory regime
created by the Minister.
Furthermore, in a supplementary replying affidavit, in response to
supplementary answering affidavits,
the following two paragraphs on
behalf of SADA are relevant:
‘
86.
However, no register for dental assistants was, in fact, created
prior to the
promulgation of the Qualification Regulations. In terms
of paragraph 22 of the Minister’s further affidavit, the [HPCSA
and
the Board] allegedly resolved to establish a register for dental
assistants in April 2000. On the second and third respondents’
own version, however, in terms of annexure “TEM7” to the
HPCSA affidavit, as at 9 April 2001, the establishment of
a register
for dental assistants had been approved only in principle and only by
the Council.
87.
There is no evidence in the Minister’s further affidavit or any
other
affidavit filed by the respondents and DAASA in this matter,
that, prior to the promulgation of the impugned Regulations –
87.1
dental assisting was a registrable profession;
87.2
a professional board regulating dental assistants had been
constituted; or
87.3
registration in respect of dental assisting was a requirement.’
[20]
From what is set out immediately preceding this paragraph, it is
clear that there is an acceptance on behalf of SADA that in
fact
registration of dental assistants took place from the time alleged by
DAASA, namely 2006. There is in any event no substantiated
challenge
by SADA to the assertion on behalf of DAASA in respect of the dental
assistants, that they were in fact being registered
from 2006. SADA,
however, maintained its position that any registration that might
have taken place was unlawful, particularly
because a register could
not be established in terms of the Act as an empowering provision was
lacking.
[21]
For completeness, we record that it is clear from an information
leaflet, issued by the Professional Board for Dental Therapy
and Oral
Hygiene, dated 22 January 2007, encouraging dental assistants to
register, that at that time a register was in existence.
The minutes
of a meeting of a task team set up to facilitate the registration and
regulation of dental assistants dated 16 April
2007 records that the
actual registration of dental assistants was on-going. The task team
was initially set up as an
ad hoc
committee during the latter
part of 2005 and was initiated by the Board. It comprised Professor
Chikte, Dr Campbell who was at
the time the Chief Executive Officer
of SADA, Ms Majake from the Department of Health, Ms Dlamini and Ms
Rhapiri, the President
of SADA. The following appears from the
minutes of a meeting of the task team, dated 11 November 2005:
‘
Noted
that the Senior Manager Mr J H Coetzer advised that the Professional
Board for Dental Therapy and Oral Hygiene was approached
by the
Dental Assistants Association of South African (DAASA) to initiate
the establishment of a register for Dental Assistants.
The Board then
started a process of consultation with the relevant stakeholders
including DAASA, the South African Dental Association
(SADA) and the
Medical and Dental Professions Board whereafter the regulations
relating to the registration of Dental Assistants
were compiled and
forwarded to the Minister of Health for promulgation. These
regulations were promulgated on 15 April 2015.’
[22]
In the answering affidavit of the HPCSA and the Chairperson of the
Board the following appears:
‘
17.7
In appointing this Task Team that was not only led by members of
Medical and Dental Board,
but had as one of its members the erstwhile
Executive Director of the Applicant, SADA, the Board hoped to avert
any perception
that it was not taking the concerns of dentistry and
the private sector employers seriously. Furthermore, the Board was
hopeful
that this would minimise any unnecessary delays to the
process.
17.[8]
SADA was actively involved in the activities of the Task Team and
immediately, when the unavailability
of its Executive Director Dr
Campbell begun to slow the progress of the Task Team, SADA
immediately ensured its representation
by replacing Dr Campbell with
Dr Tsiu, a qualified dentist and the Vice President of SADA. A copy
of the minutes of the Task Team
meeting of 25 November 2005 is
attached hereto and marked Annexure “TEM13”.’
[23]
SADA’s response, in its replying affidavit, was to deny its
active involvement in the task team. Furthermore, it stated
that Dr
Campbell and Dr Tsiu did not serve as representatives of SADA and did
not act on its behalf.
[24]
The principal deponent on behalf of the Minister was Dr Thamizhanban
Pillay who was the Deputy Director General: Health Regulations
and
Compliance Management of the Department of Health. According to him
the Minister did have regard to SADA’s representations
before
he finalised the regulations in question. The Minister was rightly
criticised by SADA for not having himself attested to
that fact.
However, the Minister subsequently filed an affidavit in which he
stated that he confirmed Dr Pillay’s assertions.
At this stage
it is necessary to consider that the Minister and his department were
regrettably slow in providing SADA with the
full record of decision
for the purposes of their review application. SADA adopted the
position that the paucity of the record
and the absence of any direct
written proof that the Minister had regard to their representations
ought to be held against him.
[25]
It is also necessary to record that the HPCSA has as one of its
professional boards the Board for the Medical and Dental Profession,
which represents the interests of those two professions. It is
axiomatic that a decision of the HPCSA comprises the view of its
constituent boards. This would mean it would comprise the views of
the medical and dental professions.
[26]
The chronology in respect of the promulgation of the regulations set
out in paragraph 16 above, spanning the period 15 April
2005 to 21
May 2012, is significant and ought to be borne in mind not only when
the legal issues are discussed later in this judgment,
but when the
chronology and nature of submissions made by SADA to the Minister are
dealt with.
[27]
We turn now to deal with the representations by SADA and the
responses, or lack thereof. During 2003, 2007 and 2009 a number
of
proposed regulations by the Minister were published for general
comment. They related to the qualification for registration
of dental
assistants and of persons who qualify outside of the Republic as well
as the registration of student dental assistants.
SADA participated
actively in commenting on the proposed legislative regime that the
Minister intended applying to dental assistants.
SADA was strident in
its objections to the creation of such a legislative regime. It
adopted that attitude because of its perspective
related to the task
performed by the dental assistants within the scope and ambit of
their employment by dentists. It made its
first written
representations to the HPCSA on 25 April 2001. We pause to consider
the nature and tenor of those representations.
In its first set of
representations SADA recorded that although it appreciated the
opportunity to submit comments it placed on
record its
‘disappointment at the fact that the Board did not see fit to
consult with [SADA] as an important stakeholder
as employers of
dental assistants . . . prior to circulating the proposals.’
Significantly – particularly as SADA has
not always been
consistent in this – it noted that it ‘supports in
principle the establishment of a register of dental
assistants.’
SADA then proceeded to comment on the precision, or otherwise, of the
language used in the proposed regulations.
SADA also commented on the
substance of the provisions. The representations consisted of just
over three pages and at the end they
record a concern that there may
not be sufficient training institutions to train the number of dental
assistants.
[28]
SADA is adamant that it received no response to those
representations. The HPCSA, on the other hand, contends that on 11
July
2001 the registrar on behalf of the Board sent the proposal for
the regulation of the profession of dental assistants to all
stakeholders,
including SADA. The Board’s proposed regulations
were an amendment of an earlier draft and incorporated all the
comments
that had been received from the stakeholders that had
responded. According to the HPCSA and the Board the letter thanked
all stakeholders,
including SADA, for the constructive comments
which, according to the Board, served to confirm to the Education
Committee that
it was still on the right track with regard to
regulating the profession. SADA denies that it received a response
from the HPCSA
and points out that no proof of dispatch or receipt
was provided by the HPCSA.
[29]
On 10 July 2003 further representations were made by SADA. It
recorded, once again, that it was disappointing that the dental
profession had not been adequately consulted. For the first time SADA
records that the Board was not the correct vehicle to consider
applications for registration and conduct examinations of dental
assistants. The following was stated:
‘
The
reconstitution in the name of the proposed Board would be a misnomer
in that this professional board has hitherto been primarily
responsible for those auxiliary professions that carry out limited
clinical work which dental assistants do not.’
SADA
records that in its view dental patients are not unduly prejudiced by
the conduct of dental assistants ‘presently employed’.
It
goes on to state that in the absence of registration requirements and
accountability the dentist as employer has assumed responsibility
for
the conduct of dental assistants employed by them.
[30]
In the representations currently under discussion, SADA reversed its
earlier stance in terms of which it welcomed registration
in
principle. This time it stated the following:
‘
It
is not clear whether a dental assistants register is entirely in the
interests of the patient. There is insufficient evidence
to suggest
that “unregistered” dental assistants have in any way
prejudiced the interests of patients.’
In
these representations SADA adopted a seemingly altruistic stance and
submitted that registration requirements might adversely
affect the
ability of dental assistants to find gainful employment ‘if too
many dental assistants are trained at technikons
and enter the
marketplace’. This is in stark contrast to the submissions
before us that there were insufficient training
and distance learning
institutions to supply the required number of qualified dental
assistants to meet demand. Concern was also
expressed that some
dental assistants may leave their employment rather than comply with
registration requirements. SADA submitted
that registration would
make dental assistants liable in their own capacity to patients and
that insufficient thought appears to
have been given to the
implications of vicarious liability for dentists. The latter
representation is difficult to comprehend since
it appears
self-evident that presently dentists might in any event be liable
vicariously for acts or omissions of the dental assistants
they
employ. The following recommendation made at the end of the
representations by SADA also deserves attention:
‘
Sufficient
provision must be made to accommodate the presently employed dental
assistants who are trained by dentists. We suggest
a “grandfather
clause” be included to allow trained dental assistants who do
not possess “approved qualifications”,
to register within
a period of time. This will ensure continuity of employment and
retention of acquired skills, experience and
training.’
SADA
received no written response to these representations.
[31]
On 19 August 2005 SADA made yet further written representations to
the then Minister of Health, Dr M Tshabalala-Msimang. Right
at the
outset, SADA reiterated that the Board had not seen fit to consult
with it knowing full well that dentists were the main
employers of
dental assistants. It recorded that although the Board requested its
views in 2001 on proposed regulations it had
received no further
communications or requests for input until the publication of the
regulations in their final form. It accused
the Board of failing to
conduct an impartial and analytical assessment and failing to use
objective criteria to develop the proposed
registration regulations.
It noted the provisions for compulsory registration of dental
assistants and submitted that:
‘
[T]hose
parts of the regulations that provided for exemption from the
qualification requirements for dental assistants and in particular
the minimum period of in-service [on the job] training of 5 years
would cause unintended and undue hardship to both dentists and
dental
assistants as employees.’
SADA
proceeded to note that there were limited training institutions for
dental assistants. It also had regard to the provision
made:
‘
for
any person who worked as a dental assistant for a minimum period of 5
(five) years prior to 31 March 2005 to apply for exemption
from the
qualification requirements and that the Board may exempt such persons
from having to obtain formal qualifications and
in its discretion
require applicants to write an examination to test their knowledge.’
The
Board was criticised for its imposition of a five year in-service
training period. SADA submitted that it was arbitrary and
capricious.
It considered the former qualification period of one year at training
institutions to be excessive, if regard were
to be had to the nature
of the work of a dental assistant. No doubt that view would be seen
by DAASA as being patronising and condescending.
Once again, SADA
stated that in its view mandatory registration would not lessen the
risk of harm to a patient and stated that
it feared for the loss of
jobs by dental assistants. In SADA’s own representations it
recommended that no further mandatory
registration be required until
all the implications and consequences were properly considered and a
review of the extent of a grandfather-clause
[7]
in the regulations is undertaken. SADA states that it received no
response on these representations.
[32]
SADA continued making representations and engaged the HPCSA and the
Minister. On 18 January 2008 SADA made written representations
to the
Department of Health regarding regulations relating to the
registration of dental assistants and the qualifications for
their
registration. Confusingly, this time the following was recorded:
‘
We
wish to place on record that we accept and support the principle of
registering dental assistants . . . . We have problems however
in the
detail of how this is to be achieved without crippling the dental
profession.’
In
its replying affidavit SADA was adamant that it ‘objects to the
regulation of dental assisting
at
all
’
.
(My emphasis) Counsel on behalf of SADA’s attempts, to explain
why SADA should not be considered to be historically schizoid
on the
basis that the quotation should be viewed contextually, is without
substance. What is demonstrated above is that SADA vacillated
between
seemingly expressing support for and resisting the official
registration of dental assistants. In the January 2008
representations,
SADA accused the HSCPA of demonstrating ‘a
lack of understanding of the many practical and logistical problems
that have
arisen since the introduction of compulsory registration of
dental assistants.’ It reiterated its concerns about the
paucity
of training institutions. SADA recorded its recognition of
the ‘important role that dental assistants play in increasing
the efficiency of a dentist in delivering quality oral health care’.
It warned, yet again, of the danger of job losses that
would redound
in the event of compulsory registration and regulation of dental
assistants. It went on to further accuse the HPCSA
of failing to
recognise that dental assistants perform ‘no clinical services’
on patients. SADA suggested that the
training time for dental
assistants could be severely reduced or compacted. SADA contended
that frequent extensions of grandfather
clauses was not the solution.
It was particularly concerned about ‘the plight of dentists
especially in smaller towns who
are unable to find qualified
assistants or even assistants with five years or more training.’
Lastly, SADA recorded that
once proper distance learning
opportunities exist SADA’s members would be glad to support the
grandfather clause.
[33]
All, but two, of the written representations referred to above were
signed by Dr N Campbell, mostly in his capacity as Chief
Executive
Officer of SADA.
[34]
SADA insisted that none of their representations referred to were
taken into account by the Minister, the Department of Health
or the
Board in the drafting and/or finalisation of the regulations in
question. Further representations were made by SADA on 2
April 2008
and 16 March 2009. The first of these appears to deal in the main
with the auxiliary dental services of dental therapists
and oral
hygienists, and displays a resistance to the increasing scope of
their
professional
status. The last, in the main, contained submissions already made. On
29 November 2010 representations were made to
the present Minister of
Health in relation to the registration of dental assistants with the
HPCSA. These representations repeat
much of what was contained in
prior representations. SADA recorded what it considered to be
problems with the registration process
and the problems that might
arise upon the termination of employment contracts of those who were
unregistered and stated that this
placed many dentists in an
untenable condition in that they would be breaking the law in that
they would be employing unregistered
dental assistants. It urged as
an option, retaining the status quo and for a repeal of the
regulation regime in its entirety. As
an alternative, it submitted
that if the registration for dental assistants were to be retained,
it should be subject to a full
review. According to SADA no response
was received to these further representations.
[35]
It is necessary at this stage to refer to a letter dated 11 March
2004, by the Department of Health, addressed to the Board.
It dealt
with the contemplated registration of dental assistants, in which the
issue of training institutions was raised, together
with hands-on
training, and registration compliance being extended by twelve
months. In that letter it was noted that most of these
issues ‘have
been covered in SADA inputs’. Furthermore, in a letter to the
HPCSA dated 24 March 2004, entitled ‘Regulations
relating to
the qualifications for registration of dental assistants and
registration of persons qualified outside the republic’,
the
Director-General of the Department of Health enclosed comments
received, apparently from interested parties. The contents of
the
letter bear repeating:
‘
Please
find enclosed comments.
The
major concern raised is that should the regulations be promulgated as
they are, most experienced Dental Assistants would be
disadvantaged
as the regulations only recognize formal training. There is no
provision made for professionals who received in service
training or
who qualified through Distant Learning Institutions.
The
Department supports the SAQA policy of Recognition of Prior Learning
(RPL) and would like to draw the Council’s attention
to the
fact that the Regulations do not cover this aspect as far as Dental
Assistants with experience but no recognized qualification
are
concerned.’
[36]
Having sketched the necessary detailed background, we now turn to the
issues for adjudication.
[37]
In resisting SADA’s application, DAASA took a point
in
limine
, namely, that it was not competent as it had not been
brought within the time period prescribed for review applications
under the
Promotion of Administrative Justice Act 3 of 2000 (PAJA).
Section 7(1)(
b
) of PAJA provides:
‘
(1)
Any proceedings for judicial review in terms of section 6(1) shall be
instituted without unreasonable delay and not later than
180 days
after the date –
.
. .
(
b
)
where no such remedies exist, on which the person concerned was
informed
of the administrative action, became aware of the action and
the reasons for it or might reasonably have been expected to have
become aware of the action and the reasons.’
[38]
PAJA, does, of course, provide for an application for condonation to
extend the 180 day period. However, despite being alerted
by DAASA to
the restrictive provisions of s 7, SADA deliberately chose not to
pursue an application for condonation. It will be
recalled that the
principal basis for an attack on all the regulations was that the
Minister had acted beyond his power in making
them. SADA classified
its review application as one brought in terms of the provisions of
PAJA. It contended that the Minister,
in making the regulations, was
engaged in administrative action and it relied expressly on the
provisions of s 6(2) which includes
a challenge on the basis that the
administrator whose act is being challenged had acted beyond his or
her powers. From the chronology
set out in para 16 above, all of the
regulations set out in that paragraph, save the Scope Regulations,
are struck by the restrictive
provisions of s
7.
[39]
In the court below, Ismail J rejected the submission by counsel on
behalf of SADA that the 180 day restrictive period did not
apply when
the challenge was based on the principle of legality as a distinct
ground of challenge and as an alternative to a review
brought in
terms of s 6 of PAJA. Counsel had submitted that, properly construed,
the challenge was based on that Constitutional
principle rather than
on the provisions of PAJA. There is, with respect, no consistent
thread in the judgment of the court below.
The following is stated in
the four concluding paragraphs of the judgment of the court below:
‘
[44]
The time delay aspect has been dealt with above, see
Oudekraal
Estates (Pty) Ltd v City of Cape Town and others
[par
31] and the
New
Clicks
matter,
supra.
[45]
I am of the considered view that the prejudice dental assistants
would suffer if the regulations were
set aside far outweighs any
defects which might exists in the promulgation of the regulations.
[46]
I would recommend that the Minister continues with his regulations in
furtherance of the legislation
regarding dental assistants, however,
the Minister should afford the parties a two year moratorium period
before the failure to
register as dental assistants would be met with
criminal sanctions. This recommendation would equally apply to hiring
dental assistants,
by dentists, who are not registered during the
moratorium period.
[47]
Accordingly I make the following order:
(1)
The application is dismissed.
(2)
The fourth respondent is joined to this proceedings and its
application for condonation
is granted.
(3)
The applicant is ordered to pay the costs of the respondents.’
It
appears then that the application was dismissed on the basis that it
was not brought within the time limits provided for in s
7. However,
the court did not deal with the challenge to the Scope Regulations
which was within the time limits provided for in
s 7 of PAJA.
[40]
In SADA’s written heads of argument in this court, it made the
following submissions:
(a)
Although the court a quo dismissed the challenge to the regulations
promulgated
in 2008, being the Original Qualifications Regulations
and the Board Regulations, on the delay principle, it is unclear
whether
the court a quo also dismissed the challenge to the 2012
regulations, being the Scope Regulations, on the same basis. If this
was
the case, it was submitted that the court a quo erred because the
2012 regulations were promulgated on 21 May 2012 and the application
for their review was instituted on 6 December 2011, within the 180
day period stipulated in s 7 of PAJA.
(b)
The court a quo ought to have considered the Dental Association’s
challenge to the
2008 regulations by extending the period in terms of
s 9(2) of PAJA as it was in the interests of justice to do so. It was
submitted
that there are three reasons for this proposition:
(i)
The challenge
to the 2012 regulations was brought in time and because
these
regulations depended in part upon the validity of the 2008
regulations, it was appropriate for the court to also consider
the
challenge to the 2008 regulations, despite the delay.
(ii)
The regulations are
‘qualitatively equivalent to primary legislation’
to
which the delay rule in PAJA does not apply.
(iii)
Although s 9(2) of PAJA refers to an ‘application’ for
condonation
no formal application supported by an affidavit is
required. It is sufficient that the request is made informally in the
course
of the proceedings.
[41]
Regarding the argument that the application was brought in terms of
the principle of legality and not PAJA, in oral argument
before us,
counsel on behalf of SADA was faced with the decision of this court
in
City of Tshwane Metropolitan Municipality v Cable City (Pty)
Ltd
[2009] ZASCA 87
;
2010 (3) SA 589
(SCA), in which the
following was stated (para 10):
‘
I
agree with the appellant’s contention that the making of
regulations by a Minister constitutes administrative action within
the meaning of the
Promotion of Administrative Justice Act 3 of 2000
,
which must comply with the requirements of this Act in accordance
with the doctrine of legality’.(footnotes omitted.)
In
City of Tshwane
, this court followed the decision of the
Constitutional Court in
Minister of Health & another NO v New
Clicks SA (Pty) Ltd & others (Treatment Action Campaign &
another as Amici Curiae)
[2005] ZACC 14
;
2006 (2) SA 311
(CC)
para 135, where the following was said:
‘
It
follows that the making of the regulations in the present case by the
Minister on the recommendation of the Pricing Committee
was “a
decision of an administrative nature”. The regulations were
made “under an empowering provision”.
They had a “direct,
external legal effect” and they “adversely”
affected the rights of pharmacists and
persons in the pharmaceutical
industry. They accordingly constitute administrative action within
the meaning of PAJA.’ (footnotes
omitted.)
[42]
Before us, counsel on behalf of SADA was belatedly constrained to
concede that the challenge against the regulations it had
brought in
the court below fell properly within the provisions of PAJA and that
the application in respect of all the regulations,
save the Scope
Regulations, was time-barred. The submission in written heads of
argument that an application for condonation in
terms of PAJA did not
have to follow the conventional route was not persisted in. Even
though counsel on behalf of SADA conceded
that the only regulations
that fell for adjudication were the Scope Regulations he suggested
that without them the remaining structure
of the regime would be
unworkable. It appeared that what SADA was intent on doing was to use
its remaining challenge in respect
of the Scope Regulations to
revisit the challenge it accepted was time-barred. The primary
problem for SADA was that all the regulations,
other than the Scope
Regulations, have been in existence since 2008 and continue to exist
as a fact until they are set aside.
[8]
Many dentists, dental assistants and the State must have conducted
themselves over many years on the basis that there was no challenge
to the statutory regime
[9]
and
would suffer prejudice if it were now, many years later, to be set
aside. However, in dealing with the challenge to the Scope
Regulations, it is necessary to deal with the architecture of the Act
for the purposes of adjudicating the legality of the Scope
Regulations, not for revisiting the regulation in terms of which SADA
was time-barred. It is to that task that we now turn.
[43]
In oral argument before us the submission on behalf of SADA was that
the Minister was precluded from putting into effect the
Scope
Regulations because there was no provision in the Act that provided
for the creation of a register for any profession. According
to SADA,
since it must be accepted that one cannot practice a profession
without registration in terms of the Act, dental assistants
could not
have their scope of work defined because the Act has no mechanism for
a register to be opened to enable them to be registered.
This stance
represented a significant shift from the position adopted in SADA’s
written heads of argument in which it was
contended that no
professional board for dental assistants had been lawfully
established and consequently the scope of work of
dental assistants
could not be defined. Simply put, the argument now appeared to be
that there was no point in defining the scope
of work for a
non-existent profession. This shift in tack was probably prompted
because of the time-bar problem faced by SADA.
[44]
The long title to the Act reads as follows:
‘
To
establish the Health Professions Council of South Africa and
professional boards; to provide for control over the education,
training and registration for and practising of health professions
registered under this Act; and to provide for matter incidental
thereto.’
‘
Health
profession’ is defined in s 1 of the Act as ‘any
profession for which a professional board has been established
in
terms of section 15 and includes any category or group of persons
provided for by such a board’.
[45]
Section 2 established the HPCSA as a juristic person. In terms of s 3
of the Act the HPCSA has, among its objectives and functions,
to
‘advise the Minister on any matter falling within the scope of
the Act in order to support the universal norms and values
of health
professions, with greater emphasis on professional practice,
democracy, transparency, equity, accessibility and community
involvement’. As stated above, it also has as one of its
functions, to co-ordinate the activities of professional boards
in
terms of the Act and to act as an advisory and communicatory body for
such professional boards.
[10]
Importantly s 3(
c
)
of the Act provides:
‘
The
objects and functions of the council are –
.
. .
(c)
to determine strategic policy in accordance with national health
policy
as determined by the Minister, and to make decisions in terms
thereof, with regard to the professional decisions in terms thereof,
with regard to the professional boards and the health professions,
for matters such as boards and the health professions, for matters
such as finance, education, training, registration, ethics and
professional conduct, disciplinary procedure, scope of the
professions,
inter-professional matters and maintenance of
professional competence.’
[46]
Section 4 of the Act sets out the powers of the HPCSA and includes
the power, after consultation with the relevant professional
board,
to ‘consider any matter affecting the health professions
registrable under [the] Act and, consistent with national
health
policy determined by the Minister, make representations or take such
action in connection therewith as [it] deems necessary.
[11]
It also has the power to ‘delegate to any professional board or
committee or any person such of its powers as it may determine’.
[12]
It also has the wider power to ‘perform such other functions as
may be prescribed, and do all such things as [it] deems necessary
or
expedient to achieve the objects of [the] Act within the framework of
national health policy determined by the Minister’.
[13]
The HPCSA consists of, inter alia, not more than 16 persons
designated by the professional boards.
[14]
[47]
Sections 15(1) and (2) of the Act read as follows:
‘
(1)
The Minster shall, on the recommendation of the council, establish a
professional board with regard to any health profession
in respect of
which a register is kept in terms of this Act, or with regard to two
or more such health professions.
(2)
The Minister may, on the recommendation of the council, reconstitute
the
professional boards with regard to the health professions for
which the boards have been established, and establish other boards.’
[48]
Section 15A sets out the objects of a professional board. They are,
amongst others, to consult and liaise with other professional
boards
on matters affecting them and to assist in the promotion of the
health of the population of the country on a national basis.
It is
envisaged that they are enabled to make representations to the HPCSA,
to advise the Minister ‘on any matter falling
within the scope
of this Act as it relates to any health profession falling within the
ambit of the professional board in order
to support the universal
norms and values of such professional professions with greater
emphasis on professional practice, democracy,
transparency, equity,
accessibility and community involvement’.
[15]
A notable power of a professional board in performing its regulatory
power is set out in s 15B(1)(
a
),
which states:
‘
A
professional board may –
(
a
)
in such circumstances as may be prescribed, or where otherwise
authorised
by this Act, remove any name from a register or, upon
payment of the prescribed fee, restore thereto, or suspend a
registered person
from practising his or her profession pending the
institution of a formal inquiry in terms of section 41; . . . .’
[49]
Section 18 of the Act provides for the keeping of a register. Section
18(1) provides:
‘
(1)
The registrar shall keep registers in respect of persons registered
in terms of this Act, and must enter in the appropriate
register the
name, relevant contact details, qualifications, date of initial
registration and such other particulars (including
the registration
category in which they hold registration and the name of their
speciality, subspeciality, professional category
or categories, if
any) as the relevant professional board may determine, of every
person whose application for registration in
terms of s 17(2) has
been granted.’
[50]
Section 24 of the Act provides that the Minister may on the
recommendation of the HPCSA make provisions for the requisite
qualification that entitles a person to be registered.
[51]
Section 33(1), which is particularly pertinent to the issues in
dispute, reads:
‘
(1)
The Minister may, on the recommendation of the council and the
relevant professional
board, by regulation define the scope of any
health profession registerable in terms of this Act by specifying the
acts which shall
for the purposes of the application of this Act be
deemed to be acts pertaining to that profession: Provided that such
regulations
shall not be made unless any professional board
established in terms of section 15 in respect of any profession which
may in the
opinion of the Minister be affected by such regulation,
has been given an opportunity of submitting, through the council,
representations
as to the definition of the scope of the profession
in question: Provided further that if there is a difference of
opinion between
the council and such professional board as to the
definition of the scope of the profession concerned, the council
shall mention
this fact in its recommendation.’
[52]
The long title of an Act can serve the purpose of showing the object
or purpose of the Act.
[16]
It
is clear from the long title that the object of the Act is to provide
for the regulation of a health profession through the
HPCSA and
Professional Boards and to make provision, amongst others, for the
registration of health professionals.
[53]
The scheme of the Act is such that the Minister is advised by the
HPCSA on whether to establish a Professional Board with regard
to any
health profession.
[17]
The
provisions of s 15(1) appear in paragraph 47 above. SADA submitted
that a reading of that subsection leads to the ineluctable
conclusion
that the establishment of a register for that profession is a
prerequisite to the establishment of a professional board.
We
disagree. There would, as a matter of logic, be no point to establish
a register for a profession that has not yet come into
being. It is
sequentially incongruent. At best for SADA the decisions could be
made simultaneously and the Board and its register
could come into
existence at the same time. Section 12, the provisions of which are
referred to above, envisages that a registrar
is appointed by the
Minister. In prior incarnations the Act provided for the HPCSA to
appoint a registrar. In terms of s 12(2)
the registrar is the
accounting officer and secretary of the HPCSA and of
each
professional
board and is obliged to carry out the functions and duties imposed by
the Act. Section 18, the provisions of which
have already been
referred to, obliges the registrar to keep registers in respect of
persons registered in terms of this Act and
to enter the name and
other relevant details, including the registration category.
[54]
These provisions, all read together purposively, when practically
applied, must mean that a register shall be kept either consequent
to
or attendant upon a decision to establish a professional board. In
the present case, the Minister reconstituted the Board to
include
dental assistants within its ambit and as demonstrated above a
register was kept, certainly at a time before the Scope
Regulations
were promulgated. We also know that more than 2000 dental assistants
have already been registered.
[55]
There is thus in our view no substance to the submission by SADA that
no provision is made in terms of the Act for the opening
of a
register for any profession. In any event, if one were to follow the
submission on behalf of SADA, the Act would be unworkable
and no new
health profession could be established. This would have the effect of
rendering the Act nugatory. As already alluded
to, the establishment
of the board and all the other regulations are beyond review.
[56]
The heading of s 33 of the Act, which deals with the powers of the
Minister to create regulations that define the scope of
dental
assistants, bears the following title:
‘
Definition
of scope of other health professions registrable in terms of this Act
and registration of certain persons.’
This
might have been an additional prompt for the stance adopted by SADA.
However, sequentially it makes sense to first establish
a board for a
particular profession and then, if the Minister were to elect to
exercise the powers referred to in s 33, to first
define the scope of
the profession before the obligation to register kicks in. The
unassailable logic must be that one would have
to first consider
whether one falls within the scope of that health profession in order
to decide whether one is obliged to register
or not. Put differently,
regulation cannot occur and compliance cannot be ensured until and
unless the scope of the profession
has been defined. What now
requires to be addressed are two further submissions on behalf of
SADA: that the Minister failed to
take into account its written
representations which warned about the possibility of large scale
unemployment amongst dental assistants,
as well as the real threat of
criminal prosecutions faced by dentists and dental assistants.
[57]
As set out in para 35, the inputs of SADA were considered in the
draft regulations. In addition, on 5 April 2005, as SADA expressed
its concerns regarding the draft qualification regulations, the HPCSA
in a letter dated 13 June 2005 that individual dental assistants
who
had not obtained their qualification from a University of Technology,
will be subjected to an examination set by the Board,
alternatively
they would be exempted from sub-regulation (2). In terms of the draft
qualification regulations, it was stipulated
that the HPCSA would be
an examining authority for the formal qualification in dental
assisting. In addition, in terms of s 25(2)
of the Act, provision was
made for a person who applied for registration to pass to the
satisfaction of the Board an evaluation
to determine whether such
person possessed adequate professional knowledge, skill and
competence to be admitted to registration
as a dental assistant. It
is therefore clear that from the outset the Minister as well as the
HPCSA were well aware of the dangers
of unemployment and potential
criminal sanctions to be imposed upon unregistered dental assistants
and made adequate provisions
in the qualification regulations as well
as the Act to cater for any such eventuality. The fact that solutions
were provided for
the potential problem clearly indicates that the
Minister considered the issue right from the outset. Moreover, what
should not
be lost sight of is that dentists’ interests
nationally are advanced within the HPCSA, through the Medical and
Dental Board.
Furthermore, we take a dim view of the nondisclosure in
SADA’s founding affidavit, of Dr Campbell and Dr Tsiu’s
involvement
in the task team in which the matters currently up for
discussion were debated and supported. In these circumstances to
suggest
that SADA’s views were not considered is disingenuous.
As demonstrated above the threat of criminal sanctions is more
imagined
than real. Finally, from the evolution of the statutory
regime created by the regulations it is palpably clear that SADA’s
views had been taken into account. The steps taken by the Minister,
the HPCSA and SADA is in line with a world-wide trend to regulate
health related professions in the public’s interest.
[18]
[58] For all the reasons
set out above, the appeal must fail. It was submitted on behalf of
SADA that in the event of its failure
in this appeal, it was in any
event protected against an adverse costs order in terms of the order
by the Constitutional Court
in
Biowatch Trust v The Registrar,
Genetic Resources & others
[2009] ZACC 14
;
(2009) 6 SA 232
(CC) para 21, where it was noted that ‘as a general rule in
constitutional litigation, an unsuccessful litigant in proceedings
against the State ought not to be ordered to pay costs’.
However, in that case the Constitutional Court said the following
at
para 20:
’
20.
Nevertheless, even allowing for the invaluable role played by public
interest
groups in our constitutional democracy, courts should not
use costs awards to indicate their approval or disapproval of the
specific
work done by or on behalf of particular parties claiming
their constitutional rights. It bears repeating that what matters is
not
the nature of the parties or the causes they advance but the
character of the litigation and their conduct in pursuit of it. This
means paying due regard to whether it has been undertaken to assert
constitutional rights and whether there has been impropriety
in the
manner in which the litigation has been undertaken. Thus, a party
seeking to protect its rights should not be treated unfavourably
as a
litigant simply because it is armed with a large litigation
war-chest, or asserting commercial, property or privacy rights
against poor people or the State. At the same time public-interest
groups should not be tempted to lower their ethical or professional
standards in pursuit of a cause. As the judicial oath of office
affirms, judges must administer justice to all alike, without fear,
favour or prejudice.’ (footnote omitted.)
And
further, para 24:
’
24.
At the same time, however, the general approach of this court to
costs in litigation
between private parties and the State, is not
unqualified. If an application is frivolous or vexatious, or in any
other way manifestly
inappropriate, the applicant should not expect
that the worthiness of its cause will immunise it against an adverse
costs award.’
(footnote omitted.)
[59]
We will bear in mind what was referred to immediately above in
dealing with the facts of this case. As set out earlier in this
judgment, SADA adopted an inconsistent attitude towards the
professional regulation of dental assistants. First, it was equivocal
about the envisaged statutory regulation of dental assistants; then
committed in principle to the recognition of dental assistants
as
professionals; and, finally, after many years, it assumed an adamant
and resistant attitude to the regulation of dental assistants
as
professionals. As stated in paras 22 and 23 above, SADA failed to
disclose that high ranking officials within its ranks engaged
as
members of the task team with the issues they were concerned about
and apparently in support of a statutory regime. In addition,
when
alerted to the time-bar provision of PAJA, SADA nevertheless elected
not to pursue an application for condonation. Faced with
the
time-bar, SADA contrived an argument in an effort to revisit
decisions that were beyond review. In our view, this conduct in
the
litigation leading up to the present appeal should count against it.
Throughout the litigation, SADA also maintained a condescending
and
patronising attitude with regard to dental assistants, even adopting
the contradictory, if not disingenuous, stance of claiming
to act in
their best interests while at the same time failing to cite the
largest organisation representing that profession, and
ultimately in
fact going so far as to oppose their intervention as a party in the
litigation on the basis that they lacked
locus
standi
.
It is not insignificant that of all the litigant parties, DAASA’s
members are without doubt the most financially vulnerable.
All of
these factors have to be seen against the emphatic assertion by
counsel on SADA’s behalf that it was committed to
democratic
principles and against the allegations in its founding affidavit of
its concern for the welfare of dental assistants.
SADA’s
attitude to DAASA’s intervention is ironic and deplorable.
Before us, right at the outset, counsel for SADA
was asked to
consider whether the attitude adopted by it did not have the
potential for a public relations disaster. SADA’s
attitude was
to reiterate that it was an adherent to the principle of legality and
should be lauded for its efforts rather than
criticised. For the
reasons set out earlier in this paragraph, we disagree.
[60]
The following order is made:
1.
The appeal is dismissed with costs, including the costs of two
counsel where employed by each of the respondents.
M S
Navsa
Judge
of Appeal
K G
B Swain
Judge
of Appeal
WILLIS
JA:
[61]
I have had the privilege of reading the draft judgment prepared my
brothers Navsa and Swain. I agree with the order that they
have
proposed as well as their reasoning, except for what appears in
paragraph 59. The stance of SADA may have been unfortunate.
Its
attitude towards the registration and regulation of dental assistants
may also have been less than astute and even unwise.
This does
not entail that its attitude has been ‘condescending’, or
‘patronising’ or ‘disingenuous’
or
‘deplorable’ to the extent that it deserves
moralistic censure from this court.
[62]
It needs to be clear that the appellant has failed in this case
because the law is against it and not because judges are,
necessarily, inherently enthusiastic ‘regulators’. Our
personal views should, ordinarily, be irrelevant. It is not,
however,
entirely irrelevant or undeserving of judicial comprehension that the
dental profession has functioned fairly well for
decades, if not
centuries, without the benefit of the regulation of the occupation of
dental assistants. Teeth have, by and large,
successfully been
extracted, drilled, filled, replaced with implants and crowns and so
on, without there being a register of dental
assistants. We have
survived the discomforts of the dentist’s chair with some grins
and plenty of forbearance, unassisted
by the regulation of dental
assistants.
[63]
The notion that SADA should be excused from an award of costs if it
lost the appeal seems to have been an afterthought: it
was not even
raised in its heads of argument. When confronted with this by the
court, Mr Leech, SADA’s counsel, demurely
replied that he had
never even considered that SADA might lose.
[64]
The award of costs in this case requires no judicial fulmination. The
principles relating to the strict application of the
180 day
guillotine in respect of bringing applications for review in terms of
PAJA are now trite. The late bringing of the application
has been the
unanswerable reason why the SADA cannot succeed, even though there
are other substantive issues that operate against
it. It cannot be
said, in the words of
Biowatch
,
that this application was ‘fresh constitutional terrain for
all’ or that ‘all the parties have had to feel their
way’
or that the State has been shown ‘to have failed to fulfil its
constitutional and statutory obligations’.
[19]
For this reason, the ordinary principles relating to the award of
costs in litigation should apply.
_____________________
N P Willis
Judge of Appeal
APPEARANCES:
For
Appellant:
B Leech SC (with K Hofmeyr)
Instructed
by:
Werksmans
Attorneys, Pretoria
Symington
& de Kok, Bloemfontein
For
First Respondent:
N H Maenetje SC (with R Tulk)
Instructed
by:
The
State Attorney, Pretoria
The
State Attorney, Bloemfontein
For Second and Third
Respondents: M Sikhakhane
Instructed
by:
Moduka
Attorneys, Pretoria
Matsepes
Inc., Bloemfontein
For Fourth
Respondent:
C R Jansen SC (with G Snyman)
Instructed
by:
Lawyers
for Human Rights, Pretoria
Webbers
Attorneys, Bloemfontein
[1]
See especially ss
3(
a
),
(
b
)
and (
e
)
of the Act.
[2]
This appears to be
borne out by the plethora of underlying regulations.
[3]
See s 5(1) of the
Act in un-amended form. Note that at the time, the short title
of the Act was the ‘Medical, Dental
and Supplementary Health
Service Professions Act'. It was later changed to the current
‘Health Professions Act’.
[4]
See the title on
‘The Medical Profession and Medical Practice’ by D J
McQuoid-Mason and S A Strauss in 17
Lawsa
1
ed (1983) para 176.
[5]
The acts specified
in the Regulations are as follows:
(1)
Preparing and managing the dental clinical environment before,
during and after patient care;
(2)
Sterilising instruments, and disinfecting surfaces and equipment in
the dental environment;
(3)
Monitoring infection control, sterilisation processes, biological,
medical and/or bio hazardous waste management within the
dental
environment;
(4)
Preparing dental materials and instruments (including dental hand
pieces) for use in clinical procedures performed by the
oral health
practitioner;
(5)
Assisting with the patient’s needs and comfort during dental
treatment;
(6)
Providing clinical assistance using four handed dentistry which
includes instrument transfer, high speed suctioning and debridement
techniques in procedures that are performed by an oral health
practitioner;
(7)
Recording patient data gathered during patient interview, oral
assessment of the hard and soft tissues and oral assessment
of other
oral structures and during the treatment of the patient;
(8)
Processing dental radiographs;
(9)
Caring for and maintaining equipment used in the dental clinical
environment; and
(10)
Assisting the oral health practitioner in the event of a medical
emergency in the dental environment and applying the necessary
measures during clinical emergencies.
[6]
Defined as ‘a
situation in which it is impossible to say which of two things
existed first and which caused the other’.
‘A chicken
and egg situation’
The
Free Dictionary
at
http://idioms.thefreedictionary.com/a+chicken+and+egg+situation
,
accessed on 4
November 2015.
[7]
As noted above, in
this context, the grandfather clause refers to recognition being
given in the case of currently practising
dental assistants to time
spent during on-the-job training in qualifying for registration as
an alternative to acquiring a formal
academic qualification.
[8]
See
Oudekraal
Estates (Pty) Ltd v City of Cape Town &others
[2004] ZASCA 48
;
2004 (6) SA 222
(SCA) para 26; and
Opposition
to
Urban
Tolling Alliance v South African National roads Agency Limited
[2013] ZASCA 148
;
[2013] 4 All SA 639
(SCA) para 42.
[9]
See
Harnaker
v Minister of the Interior
1965
(1) SA 372
(CPD) at 380B-E dealing with the rationale for the delay
rule at common law in relation to review proceedings.
See
also
Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van
Kaaptstad
1678 (1) SA 13
(A) at 41A-F.
[10]
See ss 3(
a
)
and (
h
)
of the Act.
[11]
Section 4(
c
).
[12]
Section 4(
e
).
[13]
Section 4(
f
).
[14]
Section 5(1)(
a
).
[15]
Section 15A(
e
).
[16]
Bhyat v
Commissioner for Immigration
1932
AD 125
at 129. See also
SA
Railways and Harbours v Edwards
1930
AD 3
and G E Devenish
Interpretation
of Statutes
1
ed (1992) at 105.
[17]
Section 15 of the
Act.
[18]
For example, the
World Health Organisation made the following recommendations in
2013: ‘The regulation of health professions
education must
therefore ensure that physicians, nurses, midwives and other allied
health providers receive a quality education
that prepares them to
provide safe, competent and ethical care, are certified or licensed
upon entry to professional practice
and maintain competency
throughout their active clinical careers.’ See, for example,
World Health Organisation (2013) Transforming
and Scaling up Health
Professional Education and Training – Policy Brief on
Regulation of Health Professions Education
at iv, available at
http://www.who.int/hrh/resources/
transf_scaling_hpet/en/
,
accessed 11 November 2015. With regard to dental assistants
specifically, it is worth noting that in a number of comparable
jurisdictions, registration is required and/or the profession is
regulated to a greater or lesser degree. Some examples are as
follows. In certain Australian states, dental assistants who operate
dental radiography equipment are required to obtain a certificate
and be registered. In the United Kingdom, a dental nurse (which is
comparable to a dental assistant in South Africa) must be
in
possession of an approved certificate or diploma and be registered.
In certain American states, dental assistants must be
registered
and/or must graduate from an accredited program and pass a state
exam. In certain countries within the European Union,
dental
assistants are required to complete an accredited training course,
thought there is no registration requirement (eg Austria,
the Czech
Republic, and Poland).
[19]
See
paragraphs 56 to 59 of
Biowatch
.