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[2021] ZAGPJHC 142
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Vawda v The Medical and Dental Professions Board and Others (21/27362) [2021] ZAGPJHC 142 (24 June 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No: 21 / 27362
Thursday
24 June 2021
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
DR
HOOSAIN MAHOMED
VAWDA
Applicant
and
MEDICAL
AND DENTAL PROFESSIONS BOARD
First Respondent
HEALTH
PROFESSIONS COUNCIL OF SOUTH AFRICA
Second Respondent
MINISTER
OF
HEALTH
Third Respondent
JUDGMENT
(Urgent Court )
VICTOR J :
Introduction
[1]
The applicant, Dr Hoosain Mahomed Vawda, seeks an urgent order from
this Court to
write his practical medical examination known as the
OSCE examination (acronym for Objective Structural Clinical
Examination) which
is due to take place in four days’ time on
Monday 28 June 2021. He also seeks to set aside the Pathway policy
which makes
it compulsory for foreign trained medical health
practitioners (doctors) after 24 June 2020 to do a further year of
clinical training
over and above their two year internship.
[2]
The applicant, a South African citizen completed his medical degree
at the Anna Medical
College in Mauritius. When he tried to register
for the OCSE examination, the respondents declined his registration
for the examination.
[3]
He complied substantially with the procedure for registration when he
submitted his
necessary documentation for registration as a health
care practitioner (a doctor) in March 2020. There was the deadline
for submission
of his application documents for internship before 24
June 2020 deadline (the critical date). The deadline meant that the
receipt
of any applications for registration as a health care
practitioner
after
that date would mean the extra year of
clinical training known as the Pathway. The applicant only learned on
25 April 2021 when
the respondents told him that he could not sit the
OSCE examination in preparation for internship. At that date he was
in the process
of preparing and writing his theory examination which
he passed.
[4]
On 21 May 2021 his legal representatives requested reasons as to why
the applicant
could not write the OSCE examination whilst another
student of his ilk from the same university was allowed to write the
OSCE and
not him. The issue of unequal treatment is an important
issue in the review. On 22 June 2021 the respondents make it clear
that
those who filed all their documents before the 24 June 2020 did
not have to follow the Pathway programme. Now there is also the
suggestion that he did not submit a certificate of good standing from
a regulatory body authority or authority, no internship duty
certificate and no proof of work experience. This was an additional
requirement which had never been enforced before. They also
point out
that the other doctor who the applicant named as being in the same
position as he, avoided the Pathway because he had
apparently
submitted his documents timeously, meaning before 24 June 2020.
[5]
It was also common cause that the next meeting to consider the
applicant’s application
by the Medical Education Training and
Registration Committee METRC would be held on 3 July 2020 and
thereafter the matter would
be referred to the first respondent’s
meeting which would only be held on 20 September 2020. This was
almost three months
after the OSCE examination of 28 June 2021. Even
if his application were to be approved in September 2021 it was
unclear as to
when he could sit for the OSCE examination in future,
but he would have missed the 28 June 2020 slot to write the
examination.
[6]
He explains that he duly completed all the requirements for his
degree and was awarded
that degree. He submitted all the necessary
documentation for registration in March 2020 save for his formal
degree certificate
which was not issued due to circumstances beyond
his control. Because of the Covid pandemic, the convocation ceremony
in Mauritius
only took place in June 2020 instead of April 2020. He
received the degree certificate on 27 June 2020 which he submitted to
the
respondents on 8 July 2020. This delay also affected him
registering his degree with the Education Commission for Foreign
Medical
Graduates, known as the ECFMG. This is an internationally
recognised verification body which authenticates and evaluates the
qualifications
of international medical graduates. The respondents
accepted the ECFMG verification but for the reasons given was filed
after 24
June 2020.
Urgency
[7]
The applicant has explained in detail why this urgent application was
only launched
on 10 June 2021. The respondent’s case is that
the applicant’s urgency is self-created. He should have known a
long
time ago that the decision was about the Pathway. That would
have been as early as 19 and 24 June 2020 and not wait until 10 June
2021 to launch the urgent application. That date relates to the first
decision.
8[]
The applicant’s response was that he did not know the pathway
would apply to
him until he received the correspondence on 25 April
2021 from the respondents. He submits it would be severely
prejudicial if
this Court did not hear the matter as one of urgency.
There is no real dispute that the applicant heard about the new
Pathway in
the year 2020 but I accept that he had no idea it would
apply to him prior to the receipt of the correspondence from the
respondents.
[9]
The respondents contend that he would have known about the
application brought in
the High Court in Pretoria by foreign
qualified medical students. The applicant asserts that he did not
know the details of the
application in Pretoria by 96 foreign trained
medical students until he received the first and second respondents
answering affidavits.
It was not something that was brought to his
attention and did not know he would have to be part of that group. He
had heard of
other foreign students who had successfully approached
the Court to obtain an order to write the OSCE examination. The
effect of
the new Pathway is significant in that it would mean that
he would have to spend another year obtaining clinical experience.
Now
the respondents also raise a further barrier to writing the OSCE
examination. He had to comply with Regulation 4(g) of Regulation
101
of the Act where a certificate of good standing is required from a
foreign registering authority. It had never been necessary
up to that
point to lodge the latter certificate and a bar to writing the OSCE
examination. The respondents put up every obstacle
to prevent the
applicant from writing the examination.
[10]
After receipt of the letter of 25 April 2021 from the second
respondent he took the necessary
steps to launch the application by
way of urgency. He took the following steps. He engaged his attorneys
to assist him in the matter.
He was studying for the theory portion
of his examination which he wrote on 20 May 2021. On the next day his
attorney wrote to
the first respondent making a specific request that
the applicant be allowed to write the OSCE examination.
Alternatively, that
comprehensive reasons be provided why the
applicant was bound by the new Pathway. On 26 May 2021, the first and
second respondents
responded, and their attitude was to the effect
that the implementation of a new Pathway would be enforced, and that
the applicant
would not be allowed to write the examination. The
applicant and his attorneys did not remain supine, they engaged in
correspondence
to avoid the urgent application. Correspondence was
exchanged between the attorneys on 31 May, 3 June, and it then became
evident
by 6 June 2021, that the applicant would then have to
approach the Court.
[11]
Dr Motau on behalf of the respondents contends that the matter is not
urgent and that in any
event the urgency is self-created. Dr Motau
states that other students who studied with the applicant launched
the application
in Pretoria and the applicant should have known he
would not be excluded from the Pathway policy. Dr Motau states that
even if
the applicant knew for the first time that he would be
excluded on 25 April 2021 he does not explain the 7 week delay in
launching
the application which he did on 10 June 2021.
[12]
The respondents contend that the explanation given for the delay from
25 April until 20 May 2021
when his attorney wrote the first letter
is a period of three weeks was also unacceptable. The applicant was
in the midst of preparing
for the theoretical examination and once he
completed it, he sought legal advice. I accept the applicant’s
explanation that
he was focused on writing his theoretical
examination and this consumed him.
[13]
The Pathway policy was adopted on 19 and 24 June 2020. These rules
were of application to all
foreign trained medical students, who
wished to do internship and practise in medicine in South Africa. The
applicant despite having
filed his application in March 2020 was not
invited to comment on the new policy. The applicant proceeded on a
bona fide basis
thinking that he would be entitled to register for
internship, and it was only clear to him after 25 April 2021, that he
would
not be entitled to write the OSCE examination and would have to
follow the Pathway policy.
[14]
Urgency must be assessed within the context of the facts. The
applicant has explained the delay
from 25 April 2021 to his writing
the theoretical examination. From the moment he approached his
attorney immediately after his
examination, the legal representatives
did all they could to avoid an urgent application. Importantly the
applicant had submitted
his a substantial part of his documentation
prior to the deadline of 24 June 2020. He had submitted his papers in
March 2020 except
for his original degree certificate and the
international verification certificate from ECFMG which delay he
explained above. In
response to his assertion that he submitted his
papers in March 2020, Dr Motau on behalf of the respondents in the
answering affidavit
merely noted it. Dr Motau does not dispute that
date. Clearly if the date of submission was a source of genuine
dispute, Dr Motau
would not have dealt with it in the cursory way he
did. He would have set out a detailed dispute with the details.
[15]
There is also the question of the applicant submitting his
authentication from the Education
Commission for Foreign Medical
Graduates, known as the ECFMG. During argument it was submitted on
behalf of the respondents that
he could not have submitted his ECFMG
certificate in March 2020 if one has regard to the various
correspondence. His degree certificate
is dated 18 February 2020, but
he only received the actual degree certificate on 27 June 2020. Upon
receiving it, he sent it to
the respondents and also immediately sent
it to the ECFMG for certification and when it was approved he sent it
to the second respondent
on 8 July 2020. He attached the letter
confirming the receipt, and of course, the acceptance of his
certificates by the respondents.
He never claimed to have filed the
ECFMG certificate prior to 24 June 2020. This also adds credibility
to his assertion that his
documentation had already been submitted in
March 2020 as it would be improbable that he would simply send an
additional certificate
without the application documentation if those
had not already been filed with the respondents.
[16]
It is clear therefore that the applicant submitted the necessary
documentation timeously and
to be time barred based on excessive
formalism would result in a grave injustice. Had he received his
degree certificate timeously
in February 2020 he would have sent it
to the ECFMG and all his documentation would have been complete when
he lodged in March
2020 or at the latest 24 June 2020. The domino
effect of not receiving his degree certificate timeously due to the
pandemic must
give way to the formalism that all documents had to be
filed by 24 June 2020 to avoid the Pathway procedure. The unavoidable
delay
in filing the degree certificate, the ECFMG certificate as well
as the applicant’s explanation has been adequately explained
and is sufficient to justify the hearing of this application as one
of urgency.
What
is the Pathway Policy
[17]
Prior to 24 June 2020 the admission to internship was in accordance
with sections 25(1), (2)
and (3) of the Act read with Regulation
2(1)(b) and 2(2)(b) of Regulation 101 of Act. A foreign trained
medical student had to
meet the requirement of an examination or
evaluation which consisted of two components: the theory component
which the applicant
passed and a practical component which is the
exam in question. Any application received for admission to
internship
post
24 June 2020 meant compulsory compliance with
the new third requirement of 12 months of compulsory clinical
training at a South
African university. This clinical exposure was to
be commenced once the theoretical examination had been successfully
completed.
Upon completion of the 12 months of clinical training the
OSCE examination could then be taken. This is described as the first
reviewable decision.
[18]
The Pathway policy was for those candidates who could not meet the
registration requirements
as set out in Regulation 4 and the decision
was then taken by the respondents on 19 and 24 June in terms of
Regulation 101 to make
the Pathway compulsory. The new proposed
Pathway provides that:
“
1.
The Medical and Dental Board (MDB) considered the registration of
South African citizens who hold qualification not prescribed
for
registration during the board meeting held on the 19
th
and 14
th
June 2020.
2.
The MDB decided on a Pathway for registering such citizens who hold
foreign qualifications
and who are not registered as medical
practitioners under a foreign registering authority and therefore not
meeting all the requirements
for registration in terms of regulation
4 of the regulations relating to the registration of persons who hold
qualifications not
prescribed for registration (Regulation (101).
“
[1]
Analysis
of the statutory framework
First
reviewable decision
[19]
The essential difference between pre and post Pathway means that
pre
Pathway there was provision for an evaluation. Whilst post
Pathway the further 12 months clinical training was required. The
wording
of section 25(1), (2) and (3) of the Health Professions Act
(Act) read with Regulation 2(1)(b) and 2(2)(b) of Regulation 101 of
the Act makes it clear that an evaluation is required. In terms of
Section 25 and the Regulation it is clear that the first respondent
may require a person who holds a foreign qualification as set out
section 25(2):
“…
to
pass to the satisfaction of the professional board, … an
evaluation
contemplated in subsection (3) before persons appointed by the
professional board, for the purpose of determining whether such
person possesses adequate professional knowledge, skill and
competence and whether he or she is proficient in any of the official
languages of the Republic.”
Here
it is only an evaluation and not a further twelve months of clinical
training.
[20]
Section 25 (3) of the Act provides
“
The
council may from time to time determine- (a) the
nature
of the evaluation
which shall be
conducted the purpose of subsection (2), the requirements for
admission and any other matter relating to such
evaluation
,
including the number of attempts… “
[21]
It is an evaluation process and not the imposition of a further
compulsory period of clinical
training. The second respondent may
determine the nature of the evaluation. In terms of Regulation
2(1)(b) and 2(2)(b) of Regulation
101 of the Act the respondents may
require a foreign qualified person to pass to the satisfaction of the
first respondent an
examination or evaluation
in terms of
section 25(2) of the Health Professions Act.
[22]
Regulation 2 requires that the applicant:
“
2(a)
shall, before registration, furnish the board with authoritative
information on the education, training and duration of study
required
for that qualification and, if the board considers the standard of
such education and training and the duration thereof
to be
satisfactory, the council may accept such qualification; and (b) may
be required
to pass, to the satisfaction
of the board, an examination or evaluation
in terms of section 25(2) of the Act in the profession for which he
or she applies for registration.”
[23]
The new Pathway is not an evaluation before persons appointed by the
first respondent or an examination
or evaluation by the first
respondent. The theory examination and the OSCE examination is such
an evaluation or examination.
[24]
The respondents submit that because s 15 and 15A of the Act provides
that the Minister shall
establish a Board and the objects of the
Board shall in relevant part be to exercise authority in respect of
all matters affecting
education and training
of person who
wishes to practice in the health profession. Section 15A also enables
the Board to recognise qualifications obtained
whether in South
Africa or elsewhere. Section 25 further empowers the Board to
recognise qualifications prescribed for registration.
It is clear
that s25(1) then enables the Board to exercise its discretion to so
recognise the qualification, but it is subject
to any
regulations
and international protocols which the Minister may make. In this case
the provisions of Regulation 4 could not be clearer.
[25]
The respondents contend that this policy guideline has been in the
making since April 2018 and
at that stage was called the Pathway for
registration of South African citizens who hold qualifications not
prescribed for registration,
to be registered as medical
practitioner. The import of what the respondents are submitting is
that there was a lot of public knowledge
about this Pathway
requirement and the applicant should have known about it.
[26]
According to the respondents the main purpose for adopting this
policy guideline was to provide
uniform standards for foreign trained
medical students and to ensure that they have been sufficiently
trained before they can provide
medical services to the public.
Second reviewable
decision
[27]
The respondents also made a second decision which pertained to the
applicant personally. From a series of correspondence from
the
respondents commencing 25 April 2021, 26 May 2021 and 3 June 2021 in
response to the correspondence from the applicant’s
attorneys
of 20 May 2021 and 31 May 2021, the respondents decided that the
applicant would not be exempt from the new Pathway.
This is a
decision that pertains specifically to the applicant and not to the
decision taken to implement the Pathway. The applicant
submits that
this constituted a second decision since it pertained to him as an
individual and not just the general pathway policy
decision. The
respondents submit it is the same decision. In my view these are
clearly two separate decisions.
[28]
Conditions for admission to internship have been defined in
regulation 57 of 23 January 2004.
These have not been amended. The
schedule provides for the registration as an intern in medicine in
relevant part as follows:
“
(1)
Any person who holds a qualification prescribed in the regulations
made in terms of the Act shall, after or in connection with
obtaining
such a qualification and before he or she is entitled to registration
as a medical practitioner in any category of such
registration,
undertake training to the satisfaction of the board as an intern in
medicine for a period and in the manner described
in regulation 3.
(3)
A person referred to in subregulation (1) shall - (a) submit his or
her application to the board in terms of section 17 of the
Act for
registration as an intern in medicine on an application form supplied
by the board and duly completed; (b) submit proof
that he or she
holds a qualification - (i) prescribed in the
Regulations
relating to the Registration of Persons as Geneml Practitioners and
Family Physicians in Medicine made in terms of section 24 of
the Ad;
or (ii) accepted by the board in terms of section 25 of the Act and
has passed an examination or other
evaluation determined by the board
;
(4)
Internship training commencing after 30 June 2006 shall be of not
less than twenty four months’ duration
(11) (a) Upon completion
of internship training, an intern shall submit a duty certificate to
the satisfaction of the board to certify
that he or she has
satisfactorily undertaken internship training as required by the
board and such submission shall be a precondition
for his or her
registration as a medical practitioner to perform community service
as prescribed in terms of section 24A of the
Act. (b) The duty
certificate referred to in paragraph (a) shall be issued by the head
of an approved facility where an intern
successfully undertook
internship training, as the board may require.”
[29]
Subsection (3) of Regulation 57 also requires that an applicant
may
be required to pass, to the satisfaction of the board, an examination
or evaluation in terms of section 25(2) of the Act in
the profession
for which he or she applies for registration.
The regulations do
not compel him to do a further twelve months clinical training. The
Regulation pertaining to internship in subregulation
has not been
amended and only requires an evaluation or examination determined by
the board.
[30]
Section 25(1), (2) and (3) of the Act is really the empowering
section for the registration of
persons who hold qualifications not
prescribed for registration. The Minister can, in consultation with
council, require that any
person who holds a qualification which the
council may accept, be registered in terms of the process.
[31]
In terms of Regulation 4(d) the original certificate of good standing
which shall not be more
than six months old, issued by the Foreign
Registration Authority where the applicant is, or was registered.
Obviously this cannot
be achieved because the applicant was not
registered as a doctor in Mauritius. He was a medical student and
therefore he cannot
produce a certificate of good standing as a
practitioner in that country. It was argued on behalf of the
applicant that in any
event, he was applying to do the internship, so
it would be impossible for him to produce such a certificate. The
applicant did
do clinical training in Mauritius, but did clinical
practice during his studies. In addition, he is not seeking to avoid
internship
in South Africa.
[32]
The applicant submits that there is no reason why he should undergo
this further 12 months of
clinical exposure as described by the
Pathway. The applicant also contends that the decision to exclude him
and to force him to
undergo the Pathway route is unfair and
procedurally irrational.
[33]
In my view the omission of the degree certificate with his
application papers submitted in March
2020, because of the COVID
epidemic is a valid explanation and an explanation of substance. The
respondents are being overly formalistic
to disregard his application
because his degree certificate was omitted for reasons beyond his
control. The rationality of this
decision will be considered later
[34]
The respondent submits that if the applicant were to avoid the
Pathway, going forward, he would
be let loose on the public and that
would constitute a risk. This is factually incorrect as once the
applicant is enrolled for
internship; he is under the direct
supervision of the hospital and the university involved. So he is not
“let loose”
on the public. The further aspects relating
to the Pathway are according to the respondents aimed at making sure
that there is
uniformity in relation to foreign trained students.
[35]
Regulation 4(g) requires an original certificate of good standing,
which shall not be more than
six months old, issued by the foreign
registration authority where the applicant is or was registered. The
applicant did not have
a such a certificate as he only studied in
Mauritius, he did not register as a doctor there. This was a barrier
to graduates like
the applicant who studied abroad and could not be
registered with any foreign authority at that stage of his career.
The intention
was also to ensure that these graduates will be
properly qualified and well suited to practise medicine in South
Africa.
[36]
The Regulation makes no reference to a Pathway procedure. The
applicant met the statutory requirements.
[2]
In
addition, if he were to write the practical component, the OSCE
examination, he would be entitled to move directly into the
internship.
[37]
The respondents should have known that he had an interest. That he
would be affected by the decision
to enforce the 12 months of
clinical completion. After lodging his application in March 2020, the
respondents must have known that
he had an interest. In the result
they should have given him an opportunity to be heard. Therefore, he
has been treated differently
from those whom the respondents accepted
on the basis that they had submitted their documentation timeously.
Review
of the new Pathway policy terms of PAJA.
[38]
A copy of the record was attached to the answering affidavit. This is
relevant to the first decision
being the Pathway decision. It is the
applicant’s case that important relevant facts were not taken
into account in the decision,
and this was procedurally unfair
resulting in an irrational decision.
[39]
The applicant has set out the reason for the review comprehensively
and they are repeated verbatim.
The applicant asserts that no
consideration was given to whether South African universities could
actually provide clinical exposure
to foreign trained medical
students and the extent thereof. He speculates that there may have
been two universities that could
have offered possible clinical
exposure, but they would have had insufficient capacity to allow for
clinical exposure for all applicants
for registration
[40]
He also pointed out that the respondents ignored the extent to which
any foreign trained medical
students who had already submitted
applications for registration and which applications were pending,
already had clinical exposure.
No consideration was given to the
extent to which the applicant had clinical exposure; the position of
foreign trained medical
students whose applications for registration
would be submitted and finalised prior to the new pathway compared to
the position
of foreign trained medical students whose application
for registration would be submitted prior to the new pathway but
completed
thereafter with the formal degree certificate –
especially foreign trained medical students from the same medical
school,
in the same classes and who had conducted the same course;
any representations by foreign trained medical students who had
already
submitted applications for registration and whose
applications were pending, including the applicant; affording an
opportunity
to foreign trained medical students who had already
submitted applications for registration and whose applications were
pending,
including the applicant, to make representations.
[41]
The applicant also contends that the respondents failed to seek such
representations from foreign
trained medical students who had already
completed their degrees in Mauritius; the foreign trained medical
students were not notified
in any manner of any impending decision to
impose the new pathway; no grace period was considered for foreign
trained medical students
who had already submitted applications for
registration and whose applications were pending, including the
applicant to comply
with any outstanding requirements for
registration; the sudden introduction of a certificate of good
standing in terms of 4(g)
of Regulation 101 before doing the OSCE and
a certificate of completed training 4(e) of Regulation 101 of the
Act.
[42]
Importantly at the time the decision was taken, by 28 September 2020
no South African university
had any programmes in place to provide
clinical exposure to foreign trained medical students. This much is
clear from the minutes
of a meeting of the first respondent held on
30 October 2020.
[43]
In the correspondence from the respondents of 26 May 2021 and 3 June
2021, the respondents do
not differentiate between foreign trained
medical students whose applications for registration were submitted
and finalised prior
to the new pathway and foreign trained medical
students whose application for registration were submitted prior to
the new pathway
but completed thereafter – especially foreign
trained medical students from the same medical school, in the same
classes
and who had conducted the same course.
[44]
The applicant also asserts that the respondents were aware that he
was an individual that would
be effected by the first decision and
that for reasons beyond his control, he might not be in possession of
his original degree
certificate by the time that the first decision
was made on 24 June 2020. The applicant contends that despite him and
two other
doctors whose applications for registration were submitted
and finalised prior to 24 June 2020, they did not have to follow the
Pathway whilst he had to and was therefore treated differently to his
prejudice.
[45]
On the question of clinical exposure, the degree which the applicant
completed, being a Bachelor
of Medicine and Bachelor of Surgery at
Anna Medical College, exposed him to extensive clinical practice
during October 2015 to
September 2016, October 2016 to October 2017
and October 2017 to September 2018. This appears from the
“
Certificates
of Clinical Postings
”
[3]
from
the Anna Medical College.
[46]
The respondents do not even attempt or apply their minds to the
certificate of clinical exposure
produced by the applicant. They do
not even make a comparison between the clinical exposure of foreign
trained medical students
in general and of the applicant in
particular, nor do they state it is inferior to that of South African
university trained medical
students.
[47]
This demonstrates in my view the extent to which the first decision
was procedurally unfair when
relevant considerations were not taken
into account. The fact that the applicant, being a foreign trained
medical student who had
already submitted an application for
registration and whose application was pending, was not afforded an
opportunity to make representations
prior to the decision imposed by
the new Pathway, The applicant is not comforted by the fact that when
the decision is considered
in September 2021, the situation may be
rectified. He would have lost a year of his career.
[48]
All the listed reasons referred to above also apply to the second
decision where the applicant
was affected personally. He points out
that there is no dispute that certain foreign trained medical
students who brought an application
to review the decision by the
respondents to impose the new Pathway were allowed to take the OSCE
examination, but he was not.
He also refers to those of his ilk who
were allowed to write the OSCE examination without court action. He
submits that this decision
was arbitrary and capricious.
Analysis
in terms of PAJA
[49]
There seems to be no dispute by the respondents that the decisions
were indeed administrative
action. Section 1 of PAJA defines
administrative action “as any
decision taken, or any failure to take a decision which adversely
affects the rights of any
person, and which has a direct, external
legal effect.”
[50]
In
Grey's Marine
Nugent JA described administrative action as
conduct which affect legal rights.
”
Whether
particular conduct constitutes administrative action depends
primarily on the nature of the power that is being exercised
rather
than upon the identity of the person who does so.”
“Administrative action is rather, in general terms, the conduct
of the bureaucracy in carrying out the daily functions of the State,
which necessarily involves the application of policy, usually
after
its translation into law, with direct and immediate consequences for
individuals or groups of individuals.”
[4]
[51]
What cannot be disputed is that the necessary documentation for
registration had been submitted,
except of course, for the degree
certificate and the ECGMG certificate. Based on substance over form,
the respondents are being
overly formalistic as the applicant could
not have submitted these documents prior to the date when he did.
[52]
The applicant relied on several grounds in terms of PAJA. I deal only
with those that are relevant.
[53]
The applicant relied on s 6(2)(f)(ii) of PAJA which provides that
administrative action will
be reviewable if it is not rationally
connected to —
'(aa)
the purpose for which it was taken;
(bb)
the purpose of the empowering provision;
(cc)
the information before the administrator; or
(dd)
the reasons given for it by the administrator'.
[54]
The applicant also relied on s 6(2)(e) of PAJA which provides:
'(2) A court or tribunal
has the power to judicially review an administrative action if —
…
(e)
the action was taken —
(i)
for a reason not authorised by the empowering provision
;
(ii)
for an ulterior purpose or motive;
(iii)
because irrelevant considerations were taken into account or relevant
considerations were
not considered;
(iv)
because of the unauthorised or unwarranted dictates of another person
or body;
(v)
in bad faith; or
(vi)
arbitrarily or capriciously
.'
[55]
An analysis of the record demonstrates that a considerable number of
material and relevant considerations
were not taken into account. It
is also clear that some students who were in the same position as the
applicant were treated differently
thus resulting in an arbitrary
approach. An analysis of s 25 and Regulation 2 shows that the
decision to impose the Pathway was
taken
for a reason not
authorised by the empowering provision
(6(2)(2)(i) nor was it
rationally connected to —(bb) the purpose of the empowering
provision
[56]
The long list of important considerations referred to that should
have been considered were not
and this then is fatal to the process
in respect of which the Pathway decision was taken. The decision
based on that flawed process
is therefore irrational.
[57]
As stated by Khampepe J in
Nersa
“
The
relevant question for rationality is whether the means (including the
process of making a decision) are linked to the purpose
or ends. To
my mind, rationality necessarily, whether found in PAJA or anywhere
else, must include some evaluation of process.
If not, then we are
simply asking whether a decision is right or wrong based on post hoc
reasoning.
[49] It is a natural and
inescapable denouement that the process leading to a decision 'must
also be rational in that it must be
rationally related to the
achievement of the purpose for which the power is conferred'. As
stated in Democratic Alliance:
'The means for achieving
the purpose for which the power was conferred must include everything
that is done to achieve the purpose.
Not only the decision employed
to achieve the purpose, but also everything done in the process of
taking that decision, constitutes
means towards the attainment of the
purpose for which the power was conferred.'
Additionally,
in Zuma, Navsa ADP stated that a rationality review also covers the
process by which the decision is made. 25 There
is no reason why
rationality under PAJA should be given a different (more restrictive)
meaning. It follows that rationality under
PAJA includes an
assessment of whether the means (including everything done in the
process of taking the decision) links to the
end. Problems found in
the process used to reach a decision can be very useful evidence or
illustrative of a faulty rational link.
How far that evaluation of
process goes depends on the facts of a particular case.”
[5]
[58]
In my view there is sufficient evidence of the “missing links”
being the failure
to hear the applicant and consider the aspects set
out in the long list of complaints about the process. In assessing
this aspect,
I find the absence of consideration shows that there is
a faulty or missing link between the means and the ends. The facts in
this
case demonstrate “the faulty rational link” which
led to the flawed and irrational decision.
[59]
Khampepe J in referring to the matter of
Democratic Alliance
where the Court held:
“
this
[C] court held that it is an established principle of administrative
law that a failure to consider a relevant material factor
in the
process of coming to an administrative decision can render the
decision irrational. The entire process is tainted as irrational
if
the relevant factor that was not considered ought to be central to
finding a rational or even reasonable final outcome.”
[6]
[60]
Khampepe J in
Nersa
also stated that:
“
Rationality
is concerned with one question: do the means justify the ends?
Democratic Alliance developed the test for rationality
by explaining
that an absence of a sufficient link can arise for procedural
reasons. This is not a new or different type of irrationality,
but
rather a way of evincing a broken or missing link between the means
and the ends. The means chosen by an administrator include
everything
done (or not done) in the process of making that decision.”
[7]
[61]
In this case the respondents failed to consider the long list filled
with critical aspects which
should have been taken into account
before imposing the Pathway. In addition, the imposition of the
Pathway is in contravention
of s25 and Regulation 2 as outlined above
and was a central failure in that it constituted a policy not
empowered by the provision.
The unequal treatment of other applicants
of his ilk also constitutes an arbitrary and capricious decision.
[62]
The applicant based all his grounds of review on PAJA. He has
certainly succeed on two of them.
Both grounds although not the same,
show that the first respondent did not act rationally in deciding to
implement the Pathway
prior to taking all the relevant procedural
steps into account in relation to the first decision. The same
applies to the second
decision.
Delay
in launching PAJA proceedings
[63]
In this regard the main complaint is that the applicant has delayed
excessively and is therefore
not, is not permissible to place himself
within the provisions of PAJA. The respondents submit that there is a
delay of 295 days
in launching this review application. That
calculation is incorrect. If the decision was made on 24 June 2020.
To comply with the
time periods in PAJA he should have launched the
review of the first decision by 24 December 2020 and did not do so.
He launched
this application on 10 June 2021 which is a delay of just
over five months.
[64]
Section 7(1)(b) of PAJA requires that the proceedings for judicial
review in terms of s 6(1)
must be instituted without unreasonable
delay and not later than 180 days after the date when that person
concerned became aware
of the action and the reasons for it have to
be properly explained. The respondents submit that these reasons have
not been properly
explained. Importantly throughout this period the
applicant did not think the Pathway applied to him.
[65]
In
Gwetha
Mpathi
P referred to a number of cases where the determination of the
reasonableness or unreasonableness of a delay is entirely
dependent
on the facts and circumstances of any particular case and secondly
can the delay be condoned. The latter aspect involves
a value
judgment.
[8]
The
reason for the rule is “firstly the failure to bring a review
within a reasonable time may cause prejudice to the respondent.
Secondly, there is a public interest element in the finality of
administrative decisions and the exercise of administrative
functions.”
[9]
[66]
In
Wolgroeiers
the following considerations applied
(a)
Was there an unreasonable delay?
(b)
If so, should the delay in all the circumstances be condoned?
[10]
[67]
In
Setsokosane
[11]
it
was held that an investigation into the facts of the matter in order
to determine whether, in all the circumstances of the case,
the delay
was reasonable. Though this question does imply a value judgment it
is not to be equated with the judicial discretion.
[68]
The respondents contend that the delay exceeding 180 days is per se
unreasonable and the reasons
as given by the applicant are
insufficient. I find the delay was not unreasonable and I accordingly
grant condonation.
Remedy
[69]
The imposition of the Pathway has important consequences for South
Africans who have attended
foreign medical schools. There is also a
consequence for the public at large who obviously require medical
doctors to have the
proper skill before being allowed to practice.
There is also a shortage of doctors in South Africa. There is also
the interests
of the respondents who want to exercise control over
the education of future doctors who wish to practice in South Africa
and in
whose interests the respondents official purported to act.
There is also the personal financial cost to South African students
who went to study medicine abroad believing that after their training
they would be required to do an internship now to be faced
with the
Pathway. It was spoken from 2018 without proper engagement with young
South African doctors with foreign degrees and on
the cusp of
entering internship. There was no transition period and this has led
to hardship for young South African who attended
foreign
universities.
[70]
All those interests must be carefully weighed. The default remedy for
declarations of invalidity
of administrative action is usually to set
aside the invalid action and remit it to the decision-maker for
reconsideration. Obviously
once a decision has been set aside, it
ceases to have an effect and is treated as if it never existed.
[12]
[71]
As stated in a number of cases it remains a discretionary remedy. In
certain instances, setting-aside
and non-remittal may be appropriate.
This is a young doctor on the cusp of completing his training and to
send him back to the
respondents when he should write his examination
in four days times is impractical and disruptive.
[72]
In the case of
JFE Sapela,
Scott J reasoned that a “remittal
would be impractical and disruptive and accordingly held that it
would be in the interests
of finality, pragmatism and practicality
for the invalid action in that case not to be remitted.” The
facts in this case
are in point not to remit the matter back.
[73]
This approach was also adopted in
Millennium
Waste Management
.
[13]
s8
8(1)(c)(ii)(aa) of PAJA empowers a court in proceedings for judicial
review of administrative action, to substitute its own decision
for
that of the decision-maker in 'exceptional cases'.
[14]
A
court in considering 'exceptional' circumstances must consider the
effect on the applicant in these circumstance and the urgent
circumstances in this case being the applicant’s examination in
four days’ time. The effect of delay and consequential
prejudice on him is considerable. On the other hand, there is no
prejudice to them if I substitute their decision. At the time
of
imposing the Pathway they did not even have a proper system in place
with the universities for clinical . No proper structured
curriculum
was in place for the clinical training. Universities can’t be
expected to improvise a programme of clinical training
without proper
planning. These are all exceptional circumstances. Once exceptional
circumstances are established, the Court must
still be satisfied that
the substituting its decision would be just and equitable. In this
regard the Constitutional Court held:
'Once
a ground of review under PAJA has been established there is no room
for shying away from it. Section 172(1)(a) of the Constitution
requires the decision to be declared unlawful. The consequences of
the declaration of unlawfulness must then be dealt with in a
just and
equitable order under s 172(1)(b). Section 8 of PAJA gives detailed
legislative content to the Constitution's "just
and equitable"
remedy.'
[15]
[74]
I therefore find that these are exceptional circumstances and that it
would be just and equitable
to set aside the first decision to impose
the Pathway and to set aside the second decision to refuse to allow
the applicant to
write the OSCE examination. The respondents need to
change the relevant regulations including the reference in the
Internship regulation
and put proper processes in place if they wish
to make such a dramatic change to the training of young doctors
Conclusion
[75]
I have already found that the applicant submitted his application
papers in March 2020, and I
have found that he only knew by 25 April
2021 that the Pathway policy would apply to him. His explanation I
find to be perfectly
consistent with his explanation and also on the
probabilities of the surrounding factual matrix. It would be
incomprehensible for
the applicant having studied all those years in
Mauritius to simply sit back and not do anything if he thought that
the Pathway
policy applied to him. In my view there has been no delay
beyond 180 days on the second decision but in relation to the first
the
delay is not excessive, and it is condoned. .
[76]
It is clear to me that the first and second respondents should have
been aware that the applicant
would be adversely affected by the
decisions. Therefore, they should have consulted with him when they
realised that the degree
certificate was not attached to his
application and that there would be adverse consequence for the
applicant.
[77]
They should have, then, engaged with him at that point on the Pathway
Policy. Then he would have
taken the necessary steps at that point to
deal with his legal situation.
[78
] In the result I granted the draft in which I set
aside the Pathway and allowed the applicant to write his
examination
M
VICTOR
Judge
of the High Court
[1]
Regulations
relating to the registration of persons who hold qualifications not
prescribed for registration. (foreign trained).
This was promulgated
in 2009.
[2]
[3]
FA,
annexure “
FA12
”,
001-71 to 001-74.
[4]
Grey's
Marine Hout Bay (Pty) Ltd v Minister of Public Works
2005
(6) SA 313 (SCA)
[5]
N
ational
Energy Regulator of South Africa and another v PG Group (Pty) Ltd
and others 2020 (1)SA 450 (CC)
[6]
Democratic
Alliance v President of the Republic of South Africa and Othe
rs
2013
(1) SA 248
(CC)
DA
para 63
[7]
Id at
para
64
[8]
Gqwetha
v Transkei Development Corporation Ltd and Others
2006 (2) SA 603
(SCA) see also
Associated
Institutions Pension Fund
and Others v Van Zyl and Others
2005 (2) SA 302
(SCA);
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004
(6) SA 222
(SCA) ([2004]
3 All SA 1)
at para [27]).
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13
(A) at 41).
Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en 'n
Ander
1986 (2)
2006
(2) SA p607
[10]
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13
(A) at 29-C-D
[11]
Id
at 86E - F
[12]
Pikoli
v President of Republic of South Africa and Others
2010 (1) SA
400
(GNP) at 408 – 409
[13]
Millennium
Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo
Province and Others
2008 (2) SA 481
(SCA)
[14]
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd and Another 2015 (5) SA 245 (CC)
[15]
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer, South African Social Security Agency and
Others
2014 (1) SA 604
(CC)