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[2020] ZAGPJHC 218
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Gwiliza v Colleges of Medicine of South Africa and Another (30870/2017) [2020] ZAGPJHC 218 (1 September 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION JOHANNESBURG)
CASE
NO. 30870/2017
REPORTABLE
NO
OF
INTEREST TO OTHER JUDGES NO
REVISED
1 SEPTEMBER 2020
SIGNATURE
IN
THE MATTER BETWEEN –
GWILIZA
,
LULAMA
DINI
Applicant
and
THE
COLLEGES OF MEDICINE OF
SOUTH
AFRICA
First Respondent
THE
HEALTH PROFESSIONS COUNCIL
OF
SOUTH
AFRICA
Second Respondent
JUDGMENT
(Heard
31 August 2020 – remotely on the Zoom platform)
A.
INTRODUCTION
1.
This is a review application. It was ultimately aimed at a decision
on the part of the first respondent, the Colleges of Medicine
of
South Africa, in its guise as the College of Psychiatry (“the
College”) to fail the applicant in an examination
required for
a fellowship bestowed by the Colleges, in September 2015.
2.
The fail mark in September 2015 was subject to a re-mark in December
2015, which also yielded a fail. Subsequent to this, in
circumstances
outlined below, after the intervention of the office of the Public
Protector, there was another re-marking exercise,
which yielded
another fail – which was communicated to the applicant in July
2017.
3.
There had, in fact, been seven attempts between 2012 and 2015 on the
part of the applicant to write and pass the relevant examination,
all
ending in failure. The applicant’s notice of motion was aimed
at reviewing and setting aside one such exercise, conducted
in 2013,
despite the subsequent and apparently superseding writing and
re-marking exercises.
4.
At issue is the written component of Part II of the relevant
fellowship examinations requirements. Part I was successfully
completed
by the applicant in 2009. Part II comprises a written
component, a clinical component and an oral component. All three
components
of Part II must be successfully completed, and this be
done within six years of successfully completing Part I, to qualify
for
the fellowship.
5.
In his supplementary papers, the applicant no longer persisted with
challenging the 2013 decision on review. He now sought to
challenge
the September 2015 fail. Quite why he did not seek to challenge the
December 2015 fail (pursuant to the re-mark), or
the fail
communicated to him in July 2017 (pursuant to the further re-mark
after the intervention of the Public Protector), was
never made
entirely clear. The 2013 fail could not be assessed as the script had
got lost in the four years between the marking
(there were two
marking exercises of the 2013 script in 2013), the attempt to re-mark
the script in 2017 after the intervention
of the Public Protector,
and the subsequent launch of these review proceedings in August 2017.
6.
In fairness to the way the applicant views things, if the September
2015 fail was reviewable, subsequent apparently superseding
re-marking exercises could arguably not undo his entitlement to
review and set aside the September 2015 fail, on the hypothesis
that
it was a reviewable fail. Even if the subsequent fails were then not
reviewable, the applicant could still challenge the fail
that he says
was reviewable. I am not sure this is a correct approach to the
issue, as the College would act upon the last fail
(or pass) as the
extant mark, superseding all that went before, but for present
purposes I am willing to assume that the subsequent
re-marking in
December 2015 of the September 2015 fail, and the renewed re-marking
in 2017, did not in principle preclude a challenge
to the September
2015 fail.
B.
THE NATURE OF THE DECISION – ADMINISTRATIVE ACTION?
7.
In argument
I was referred to the decision of McAslin AJ in
Hlongwane
v The Colleges of Medicine & Another
in
this Division (unreported 29055/2017, 6 December 2019), a case that
bore an uncanny resemblance to the instant in several respects,
and
in which counsel for both parties who appeared before me
[1]
both also appeared.
8.
In that case, it was held that the relevant decision of the relevant
College (in that case the examination concerned orthopaedics)
was not
administrative action for the purposes of the Promotion of
Administrative Justice Act 3 of 2000 (“PAJA”). This
finding was based mainly on a failure by the applicant in that case
properly to pinpoint the “empowering provision”
in terms
of which the Colleges acted such as to render their conduct
sufficiently public for the purposes of the relevant definition.
9.
The first respondent (College or Colleges) is not itself a statutory
body directly exercising a statutory function. The second
respondent
HPCSA undoubtedly is, and relies upon the accreditation afforded by
the Colleges when registering health professionals
as specialists in
exercising its statutory functions. It also exercises a statutory
supervisory function over the Colleges under
s3(f) read with section
31 of the Health Professions Act 56 of 1974, the latter which may
also be said indirectly to render the
functions of the Colleges in
reporting to the HPCSA statutory for the purposes of PAJA.
10.
Counsel for the Colleges did not press the issue before me and
properly conceded that it was at least arguable that the functions
of
the Colleges were sufficiently interwoven with the statutory
functions of the HPCSA to render the former administrative action
for
the purposes of PAJA review.
11.
The question whether any particular function or decision falls under
the purview of PAJA review is a surprisingly perennial
issue. In my
view, the functions and decisions in the instant case are
sufficiently interwoven with the statutory functions of
the HPCSA to
render them subject to PAJA review, if, however, accompanied by a
high standard of deference, given the expertise
of the body concerned
and the extent to which a court ventures from its terrain when
considering its examinations. More about this
below.
12.
Given my ultimate findings, however, I need not, and do not, arrive
at a final conclusion on this issue and decide the matter
on the
assumption in favour of the applicant that the decision under review
is in principle subject to PAJA review.
C.
DELAY
13.
The delay question is aligned to the question, alluded to above, of
the appropriate decision to serve as the proper focus of
any review.
The initial review, aimed as it was at the 2013 decision, suffered
from a rather egregious and obvious delay problem.
14.
This is less so, but still significant, when it comes to the delay
problem attendant upon the review of the September 2015 fail.
If one
were to regard the December 2015 re-mark as exhausting an internal
remedy, the delay in relation to the September 2015 decision
spans
some 17 months.
15.
If, however, one were to regard the digression entailing the
involvement of the office of the Public Protector and the ensuing
Alternative Dispute Resolution (“ADR”) process as yet a
further “internal remedy”, or at least “alternative
remedy” digression, as the applicant would have it, then the
delay between having the outcome of this process relayed in
July 2017
and launching the review is not significant.
16.
I am content for purposes of this application to view the ADR process
as an “alternative remedy” digression, akin
to an
internal remedy, the delay resulting from the exhaustion of which
ought not decisively to be held against the applicant in
any review
of the September 2015 decision.
D.
PEREMPTION OR “COMPROMISE” IN THE ADR PROCESS
17.
More problematic for the review is the role played by the ADR process
in the applicant’s ability to pursue his review
at all.
18.
The ADR process was not an internal remedy. It was not some step the
applicant needed to take or to which he needed to submit
before he
could challenge the decision in question. It was, instead, a process
brokered by the Public Protector at the insistence
of the applicant.
On the papers, it led to an agreement to resolve the matter of the
2013 and the 2015 fails.
19.
The pertinent allegations in the answering papers about the agreement
are not disputed in reply. Instead, as also confirmed
by counsel for
the applicant in argument, the applicant adopted the following
position with respect to the ADR agreement: the agreement
was to
resolve both the 2013 fail and the 2015 fail by means of an ADR
process (in essence, yet another independent re-mark). This
proved
impossible in relation to the 2013 fail, as the script had
disappeared in the meantime. Although the ADR agreement was
implemented with respect to the 2015 fail, because it was not
implemented with respect to the 2013 fail, the agreement as to the
ADR process was not implemented, and the applicant cannot be held
bound by its outcome.
20.
I cannot see how the fact that it proved impossible to re-mark the
2013 script in implementing the ADR agreement can be decisive
as to
whether the ADR process should be determinative in respect of the
2015 fail. After all, the challenge to the 2013 fail has
been
unequivocally abandoned – this much is clear from the
supplementary founding papers.
21.
The real question is whether the agreement relating to ADR should be
seen to amount to a peremption of the review with respect
to the 2015
decision.
22.
A party may
perempt his or her review right as much as any appeal right.
[2]
If this is so, I do not think there is anything wrong with perempting
in favour of an alternative agreed process, as long as the
peremption
is sufficiently clear.
23.
In the instant case, the peremption in favour of the agreed ADR
process was sufficiently clear.
24.
I leave aside the interesting question whether, as counsel for the
Colleges submitted, any potential challenge to the outcome
of the ADR
process would have needed to be brought under the
Arbitration Act 42
of 1965
. There was no challenge to this outcome. Instead, it was
essentially ignored, as a digression that did not yield the desired
outcome
for the applicant. The College, however, would have been
bound by the outcome had it been favourable to the applicant. Indeed,
this is so for every re-mark authorised by the College.
25.
Where an applicant initiates the intervention of the office of the
Public Protector and then succeeds in exacting an agreement
by a body
like the Colleges to accede to an ADR process to resolve the dispute,
a process that involves submission to yet another
decision in the
form of a further re-mark, it is unfair on the Colleges, and an
inappropriate recourse to the review powers of
this court, for the
applicant to repudiate the outcome of such a process and to seek to
revert to an attempt to review the original
decision.
26.
I therefore find that the review had been effectively perempted.
E.
REVIEW GROUNDS
27.
In case I am wrong in regard to peremption, I find that the grounds
of review sought to be made out against the 2015 decision
are
extraordinarily thin.
28.
There are what can only properly be called completely unsubstantiated
allegations of bias made against the Colleges on which
the challenge
is mainly founded, and a wholly untenable attempt in the
supplementary founding papers to craft a case of procedural
fairness
on the basis of alleged non-compliance with certain fundamental
principles of assessment of these kinds of examinations
for which no
expert or other proper substantiation is offered in the papers.
29.
As for bias, two allegations are made against Professor Burns of the
Colleges, who acted as the convener of the examinations.
29.1. The first, about
which the less said the better, is that Professor Burns was
conflicted as a practising psychiatrist as he
had a financial
interest in ensuring that the applicant, as a potential competitor,
did not enter the market. Were this suggestion
not so ludicrous, it
would be unjustifiably defamatory.
29.2. The second is put
thus in counsel’s heads of argument:
“
Further
the applicant submits that his constitutional right to an
administrative action that is not biased, but which is lawful
and
reasonable is also hampered with by the first respondent's decision.
This is clear from the fact that Professor J.K Burns,
the head of
Psychiatry who certified the applicant to have successfully completed
his training as Psychiatry Registrar and later
revoked it (by asking
the applicant to defer taking the
Part II
examination) for no
apparent reasons, is revealed by the Convenor's Report to be the
overall convener of the 2015 examination.
”
29.3. There is no factual
foundation laid in the papers for suggesting anything sinister in the
decision to ask the applicant to
defer taking the
Part II
examination. Even if this were unfair, or unwarranted, it cannot
begin to lay a foundation for a reasonable apprehension of bias.
30.
Apart from these wholly unwarranted bases for suggesting bias on the
part of Prof Burns, the allegation of bias contents itself
with vague
assertions of institutional bias, that, when shorn of the references
to the above allegations relating to Prof Burns,
are not supported by
any allegation of fact.
31.
Allegations of bias, even of a reasonable apprehension of bias, need
to be made responsibly and with due regard to laying a
proper
foundation for them. This is in my view not the case of the
allegations in the instant matter.
32.
As for procedural fairness, the applicant invoked “
generally
accepted principles of assessments which principles require that (a)
any assessment be valid (meaning it should be guided
by a publicised
curriculum); (b) an assessment should be reliable and consistent
(which demands a clear and consistent process
for the setting,
marking, grading and moderation of examinations); (c) information
about assessments should be explicit, accessible
and transparent; and
(d) assessment should be inclusive and equitable
.”
33.
I was asked to take “judicial notice” of these “generally
accepted principles of assessments”. Counsel
for the Colleges
submitted I could not, without expert evidence, venture there. I am
not sure that this is really a matter of procedural
fairness. But I
suppose in some respects what is at issue are principles of natural
justice.
34.
I think that, to a certain extent, principles of natural justice
enter what one expects of examinations and that some basic
core
elements or principles can form the point of departure for an
assessment of fairness without the need for expert evidence
on the
nuances of the principles that govern a specific type of examination.
But the point is arrived at rather quickly when the
terrain becomes
treacherous, and a matter of specific expertise, and not something of
which a court can take “judicial notice”.
35.
Be that as it may, there is no example given of anything that can
reasonably be regarded as clearly demonstrating such a deviation
from
transparency and accountability that it could be said to rise to the
level of reviewability. I reject the notion that a mark-by-mark
breakdown of mark allocation, as for a primary school examination,
was indispensable, or that the recommendation from a convener
that
there could be a greater degree of standardisation in the creation of
a memorandum proved the case of procedural unfairness,
or that the
curriculum was so vague as not to make it clear what was expected. It
is not for the court to consider whether the
feedback for why the
answers deviated from what was expected was persuasive, or would be
persuasive to psychiatrists. The court
is not the 2020 re-mark.
36.
What is clear enough from the questions and answers at issue is that
they entail a degree of judgment, and assessment of judgment,
which
by itself, in a field as specialised and advanced as Psychiatry,
cannot be amenable wholly to a tick-box approach. Woe betide
the day
when our College of Psychiatry must employ a paint-by-numbers method
in marking examinations lest it be subjected to re-marking
by the
courts.
37.
Suffice it to say that, had the applicant sought to make out a case
for reviewably irrational marking, based on the published
memoranda
or guidelines, he would have needed to have done so in a far more
rigorous and painstaking manner than what appeared
in his papers.
There is no indication in the papers of an inexplicable relationship
between what was said to have been expected
in the answers and a
failure to find this in the applicant’s answers, demonstrated
to a degree that would satisfy any review
test, even one of a low
threshold. And for a case of procedural unfairness, which is where
the complaint was nestled, something
far more obviously raising red
flags in the eyes of the reasonable observer was certainly required.
38.
I am accordingly of the view that no case was in any event made out
for any persuasive ground of review.
39.
In the circumstances the application is dismissed with costs.
Snyckers
AJ
31
August 2020
Counsel
for applicant: S. Alcock
Instructed
by: Zikhali Inc.
Counsel
for first respondent: M Sikhakhane SC
Instructed
by: Fasken Martineau
[1]
The heads of argument for the first respondent in the instant matter
were prepared by Mr Picas, and Mr Sikhakhane SC appeared
before me
for the first respondent. The applicant was represented by Mr
Alcock.
[2]
Liberty
Life Association of Africa v Kachelhoffer NO & Others
2001
(3) SA 1094
(C);
Mohamed
& Another v President of the Republic of South Africa &
Others
2003
(4) SA 64
(C).