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[2013] ZASCA 87
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Emergency Medical Supplies and Training CC (Trading as EMS) v Health Professions Council of South Africa and Another (116/2012) [2013] ZASCA 87; [2013] 4 All SA 1 (SCA) (31 May 2013)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
C
ase No:
116/2012
In the matter between:
EMERGENCY MEDICAL SUPPLIES AND
TRAINING CC (Trading as EMS)
...........................................
APPELLANT
and
HEALTH PROFESSIONS COUNCIL OF
SOUTH ARICA
..........................................................
FIRST
RESPONDENT
PROFESSIONAL BOARD FOR
EMERGENCY
CARE PRACTITIONERS
....................................
SECOND
RESPONDENT
Neutral citation:
EMS v
Health Professions Council of SA
(116/2012)
[2013] ZASCA 87
(31
May 2013)
Coram:
Mthiyane DP, Maya
and Shongwe JJA and Erasmus and Mbha AJJA
Heard: 9 May 2013
Delivered: 31 May 2013
Summary: The
nature of the appeal created by s 20 of the Health Professions Act 56
of 1974 ─ whether it is a wide appeal or
a restricted appeal,
ie an appeal in the ordinary sense.
_____________________________________________________________________
ORDER
On appeal from:
Western
Cape High Court, Cape Town (Hlophe JP and Zondi J sitting as court of
first instance):
The appeal is dismissed with
costs including the costs of two counsel.
___________________________________________________________
JUDGMENT
MTHIYANE DP (MAYA, SHONGWE
JJA, ERASMUS AND MBHA AJJA CONCURRING):
[1] This appeal is against a
judgment and order of the Western Cape High Court (Hlophe JP and
Zondi J) dismissing the appellant’s
appeal in terms of s 20 of
the Health Professions Act 56 of 1974 (the Act) against the decision
of the second respondent, the Professional
Board for Emergency Care
Practitioners (the Board), to withdraw the appellant’s
accreditation. With the leave of the high
court the appellant appeals
to this court.
[2] The appeal follows an earlier
appeal to this court by the respondents against the judgment and
order of the Western Cape High
Court, in which Motala J and Manca AJ
had held that an appeal under s 20 of the Act is a wide appeal which
is not confined to the
record which served before the Board. The
appeal was struck from the roll on the basis that the matter was not
properly before
the court. Leave had been granted on the question
whether the s 20 appeal was a wide appeal or a narrow appeal. In
granting leave
to appeal the learned judges had left out of account
issues such as the ‘the merits of the appeal itself, the
striking out
application, and the contentions as to the record’.
The case is reported as
Health Professions Council of South Africa
& another v Emergency Medical Supplies and Training CC t/a EMS
2010 (6) SA 469
(SCA). For convenience I shall refer to the
appeal to this court against the decision of Motala J and Manca AJ,
as ‘the earlier
appeal’.
[3] There are two questions that
require consideration by the court in the present appeal. The first
is whether this appeal is properly
before the court, given that the
earlier appeal on the same issue was struck from the roll. The second
question is whether the
appeal created by s 20 of the Act is a wide
appeal or a narrow appeal. If this court concludes that s 20 creates
a wide appeal
then in that event it should have regard not only to
the merits of the case but to the review grounds relied on by the
appellant,
such as bias and conflict of interest on the part of the
Board members when the decision to withdraw its accreditation was
made,
as well as other review grounds raised by the appellant. But if
on the other hand a conclusion is reached that s 20 of the Act
creates a narrow appeal, ie an appeal in the ordinary sense, the
consideration of the appeal by this court will be confined to the
merits of the appeal. However, it will be limited to the evidence or
information on which the Board’s decision was based.
The only
determination will then be whether that decision was right or wrong.
Factual background
[4] In 1999 the appellant applied
to the Board for approval to conduct training of emergency care
practitioners ─ the so called
paramedics ─ in four basic
ambulance assistance (BAA) courses, three ambulance emergency
assistance (AEA) courses and subsequently
between November 2002 and
February 2003, one critical care assistance (CCA) course. The
appellant’s applications for accreditation
were granted. By the
end of 2004 the Board discovered that the appellant conducted
training well beyond its original accreditation.
The appellant was
now offering training in 11 BAA courses, five AEA courses and two CCA
courses without having obtained approval
from the Board to extend the
scope of its accreditation. The Board conducted an investigation into
the matter and also discovered
that the facilities, the equipment and
the standard of the offered training were well below par. In November
2006 the Board conducted
an examination of the appellant’s
students in the CCA discipline. The students performed poorly. In the
same month the appellant’s
accreditation was withdrawn by the
Board. This led to an appeal to the high court in terms of s 20 of
the Act which was then considered
by Motala J and Manca AJ.
Is the appeal properly before
this court?
[5] Against the above background
I turn to a discussion of the issue whether the present appeal is
properly before this court. Counsel
for the appellant submitted that
it is not competent for this court to adjudicate on the question
whether the s 20 appeal is a
wide appeal or a narrow appeal as this
issue was disposed of in the earlier appeal. This argument is clearly
without merit. On
a proper reading of the judgment it is clear that
the court in the earlier appeal refused to hear the appeal piecemeal,
given that
there were outstanding issues which also formed part of
the s 20 appeal and which could still come before this court on
appeal.
Leave to appeal had been granted by Motala J and Manca AJ
only on the question whether the s 20 appeal is a wide appeal or a
narrow
appeal. The matter was struck off the roll and there was
therefore no final determination of the issue which would have
entitled
the appellant to raise a plea of res judicata. I conclude
therefore that the question is still open for adjudication and that
it
is competent for this court to deal with it.
Section 20 appeal: wide or
narrow appeal?
[6] I turn now to the question
whether the appeal created by s 20 of the Act is a wide appeal or a
narrow appeal, ie an appeal in
the ordinary sense. Before doing so it
is necessary to briefly discuss how the two courts below approached
the matter. Motala J
and Manca AJ adopted the view that the appeal
under s 20 was a wide appeal and that the court was therefore not
restricted to the
information that was before the Board when it made
its decision. Having come to this conclusion the learned judges
concluded that
they were entitled to have regard to the review
grounds relied on by the appellant. Hlophe JP and Zondi J aligned
themselves with
the view that the s 20 appeal was indeed a wide
appeal but refused to hold that it was wide enough to include
consideration by
the court of the review grounds contended for by the
appellant. The learned judges expressed themselves as follows:
‘
In
our view when Motala,
J
and Manca,
AJ
held that an appeal under section 20 is a wide appeal, they could not
have meant an appeal of the nature contended for by the
appellant.’
The judges went on to state that
this ─ meaning this case ─ was not a review but an appeal
and therefore the court could
only concern itself with the merits of
the matter. They aligned themselves with the remarks of Cameron JA in
Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission
for Conciliation, Mediation and Arbitration
2007 (1) SA 576
(SCA)
where the judge of appeal remarked (para 32) that the merits may
sometimes intrude in review proceedings but that this did
not
obliterate the distinction between an appeal and a review. In my view
the judges in the court below were no doubt correct in
their finding
that there is a clear distinction between an appeal and a review and
therefore cannot be faultered in that regard.
See also
Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs & others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 45. Notwithstanding that stance, however,
they proceeded to deal in detail with the review grounds advanced by
the appellant
in its appeal under s 20 of the Act, namely,
appellant’s contentions that an incorrect body took a decision
to withdraw its
accreditation; that the Board was biased in that it
prejudged the issue; and that there was a material conflict on the
part of
the members of the Board. It seems to me that the court below
having found that the appeal under s 20 was limited to the merits,
the need to consider the review grounds raised by the appellant fell
away.
[7] Section 20 affords a person
aggrieved a right of appeal and provides as follows:
‘
20
Right to a appeal
(1) Any person who
is aggrieved by any decision of the council, a professional board or
a disciplinary appeal committee, may appeal
to the appropriate High
Court against such decision.
(2) Notice of Appeal
must be given within one month from the date on which such decision
was given.’
[8] In
Health Professions
Council of SA v De Bruin
[2004] 4 All SA 392
(SCA) para 23, this
court authoritatively decided that an appeal to the high court
created by s 20 of the Act was an appeal in
the ordinary sense, ie ‘a
rehearing on the merits but limited to the evidence or information on
which the decision under
appeal was given, and in which the only
determination is whether the decision was right or wrong’.
De
Bruin
was followed and applied by this court in
De Beer v Raad
vir Gesondheidsberoepe van Suid-Afrika
2007 (2) SA 502
(SCA). In
De Beer
the argument that the appeal in s 20 of the Act was a
review was rejected as being clearly wrong (see paras 25-26).
[9] Motala J and Manca AJ refused
to follow and apply
De Bruin
. They adopted the view that
De
Bruin
was distinguishable on the facts from this case and
advanced two reasons for that conclusion. The first was that the
decision in
De Bruin
and the cases referred to therein dealt
with an appellant who had sought to appeal against a decision which
had been taken consequent
upon a disciplinary hearing. In each case,
said the learned judges, the disciplinary proceedings had been
recorded and there was
difficulty in determining what constituted the
record of the proceedings. The second reason was that the decision
was taken in
the absence of the interested person. This line of
reasoning found favour with Hlophe JP and Zondi J who said in their
judgment,
that there was no reason why they should deviate from the
judgment of Motala J and Manca AJ in regard to the nature of the
appeal.
[10] In my view the reasons
advanced by Motala J and Manca AJ that this case is distinguishable
from
De Bruin
do not withstand scrutiny. In the present matter
there was a record which served before the learned judges when they
considered
the s 20 appeal. There was, for example Form 169 on which
the appellant applied for accreditation. There was also
correspondence
and other documentation relevant to the appellant’s
application. There were furthermore affidavits before the judges
explaining
the context in which the documentation had been submitted.
I therefore do not agree that there was no record in this matter on
which the appeal could have been considered on the merits. As to the
second ground relating to the absence of an interested person,
it
with respect, appears to be a bit of a red herring. There was no
necessity for the parties to appear in person in the present
matter.
The appeal was conducted through their representatives and the
documentation filed by the respective parties. In any event
none of
the parties in this matter would have been capable of appearing in
person. In my view
De Beer
and
De Bruin
were correctly
decided and this court is bound by them. It has not been shown that
the two cases were wrongly decided.
[11] In the view which I take of
the matter, namely that an appeal created by s 20 is a narrow appeal,
ie an appeal in the ordinary
sense, it is necessary to consider the
grounds advanced by the appellant on the merits.
The merits
[12] In this regard two main
issues require consideration. The first concerns the correctness or
otherwise of the decision of the
Board to cancel the appellant’s
accreditation. The second concerns the decision relating to the
November 2006 examination.
Regarding the first issue the essence of
the complaint against the appellant was that it offered training
beyond its originally
approved accreditation. When the appellant
applied for accreditation in 1999 it indicated on Form 169 that it
intended to conduct
training in four BAA courses. On 29 July 1999 the
Board caused the appellant’s premises to be inspected and a
pre-accreditation
report was compiled. These were considered by the
Board on 27 October 1999 and the appellant was informed by a letter
dated 8 November
1999 that its application for accreditation had been
granted.
[13] On 10 November 1999 the
appellant applied again for accreditation for three AEA courses. On
12 and 13 July 2000 the Board’s
representatives inspected the
appellant’s premises and thereafter compiled a
pre-accreditation report. After considering
the matter, the Board
approved the application for accreditation and conveyed its decision
to the appellant by way of a letter
dated 30 October 2000.
[14] Between November 2002 and
February 2003 the appellant applied again on the prescribed Form 169
for accreditation to conduct
training in one CCA course. During May
2003 the premises of the appellant were inspected and a
pre-accreditation report was compiled
and handed to the Board. The
appellant was subsequently informed by way of a letter that its
accreditation had been granted, subject
to its CCA examinations being
moderated by the Board’s education committee member, Mr Dhai.
The appellant’s accreditation
was confirmed on 17 November 2003
at a meeting of the Board.
[15] By the end of 2004 the
appellant was, contrary to its original accreditation, conducting
training in 11 BAA courses, five AEA
courses and two CCA courses. The
Board’s complaint was that the appellant deviated from its
original accreditation of four
BAA courses, three AEA courses and one
CCA course. This was what the appellant originally had applied and
had been granted accreditation
for.
[16] The matter became a subject
of various correspondences between the Board and the appellant from
2005 to 2006 and culminated
in the Board revoking the appellant’s
accreditation in all the courses in which it conducted training. The
Board has maintained
throughout that the appellant was conducting
training beyond its accreditation and that despite bringing this to
the attention
of the appellant, the latter simply ignored this fact
and proceeded with training beyond its accreditation.
[17] In argument on appeal before
this court counsel for the appellant did not dispute that the
appellant offered more courses than
those for which it had been
granted accreditation. The submission advanced on the appellant’s
behalf was that the letters
from the Board granting the appellant
accreditation did not limit the number of courses the appellant could
offer in any of the
three disciplines, namely BAA, AEA and CCA. In my
view the submission is without merit. The appellant applied for
accreditation
to offer training in a specified number of courses and
there is no reason to think that when accreditation was granted it
entitled
the appellant to offer more courses than those applied for.
The appellant’s conduct in conducting training in more courses
than those applied for was contrary to the provisions of s 16(1) of
the Act, which reads as follows:
‘
(1)
Notwithstanding anything to the contrary in any other law contained
but subject to the provisions of the Nursing Act, 1978 (Act
50 of
1978), no person or educational institution, excluding a university
or a technikon, may offer or provide any training having
as its
object to qualify any person for the practising of any profession to
which the provisions of this Act apply or for the carrying
on of any
other activity directed to the mental or physical examining of any
person or to the diagnosis, treatment or prevention
of any mental or
physical defect, illness or deficiency in man, unless such training
has been approved by the professional board
concerned.’
[18] There were other reasons why
the Board decided to withdraw the appellant’s accreditation,
such as insufficient equipment,
failure to keep logbooks and the
general poor quality of training. I do not intend to deal with these
reasons, because of the finding
in the preceding paragraph that the
appellant’s conduct fell foul of the provisions of s 16(1) of
the Act.
[19] This brings me to the
November 2006 examination as one of the reasons which led to a
decision to revoke the appellant’s
accreditation. I have
already indicated that the Board alleged that the quality of training
offered by the appellant was unacceptable
to the Board. In support of
this allegation the Board relied on a number of reports including
that of a Board member Mr James Bowen.
His November 2006 report noted
that the students who sat for the November 2006 examinations, which
was set by the Board, lacked
a deep understanding of theoretical
knowledge and described the grasp of the subjects by the students as
superficial. On 7 November
2006 the Executive Committee passed a
resolution authorising the Chairperson of the Education Committee to
appoint examiners to
conduct the examinations of the appellant as and
when there was completion of a particular course which required
examination. Ms
D Muhlbauer was appointed as the chief examiner to
conduct the appellant’s CCA final examination. Mr Bowen was
appointed
as the moderator.
[20] On 15 November 2006 Ms
Muhlbauer obtained the Objective Structure Clinical Examination
(OSCE) sheets intended for use in the
CCA examinations from Dr TH
Stevens, the appellant’s medical director and CCA co-ordinator.
Upon perusal thereof, she noted
that the OSCE sheets did not cater
for all the examinable skills, with no less than 14 skills missing.
When she took this matter
up with Dr Stevens, she was advised that
the OSCE sheets forwarded to her were in respect of the skills that
the appellant had
decided to examine the students on and the skills
that the students had practised for their finals. Dr Stevens also
indicated that
the students had been taught four of the 14 skills
that Ms Muhlbauer considered to be missing from the OSCE sheets, with
the rest
of the skills having been taught to the students in their
hospital phase and therefore not examined during the OSCE.
[21] From the above it was clear
to the Board that the students were not taught by the appellant in
all the skills that they were
required to be proficient. The upshot
of this was that none of the students passed the long question paper,
where the highest mark
was 41 per cent and the lowest mark was 22 per
cent. Again in the OSCE assessments none of the students passed the
examinations,
the pass mark being 75 per cent. However four students
passed the short question paper, four failed the oral evaluations and
only
two students were found to be competent in the simulations. A
conclusion was reached that it would be futile to allow any of these
students a reassessment without proper remedial action. Mr Bowen in
his moderation report repeated much of what Ms Muhlbauer stated
in
her report. As already indicated above, he concluded that the
students appeared to lack a deep understanding of the theoretical
knowledge and that there was a superficial grasp of the subjects by
the students but insufficient to deeply explore a subject.
He also
stated that there appeared to have been an obvious lack in the
teaching of the program in question, as students were unable
to
demonstrate a detailed understanding of certain procedures. Finally,
he could not recommend that any of the students be permitted
to be
registered with the HPCSA.
[22] In argument before us,
counsel for the appellant submitted that the November 2006
examination was so difficult that even medical
specialists could not
have been expected to answer at least one of the questions in the
detail required. Counsel relies for this
submission on the report of
Dr Cooke who was invited as an expert on the appellant’s behalf
to consider, assess and evaluate
the November 2006 examination
papers. Dr Cooke’s report has been placed before us. That is
unfortunately not how I read the
report as set out in his letter of
10 May 2007. Dr Cooke said that the questions were medically correct
but pointed out that there
were minor issues with regards to long
questions and short questions. He then went on to say that the
questions could be easily
understood and were very clear in their
content of case scenario, exact requirements of answers and
subsections. As to the long
questions he stated that they were not
misleading. There was, he continued, some minor sense of ambiguity or
‘trick questions’
in the multiple choice section. He then
went on to offer comment on the mark allocation and acknowledged that
the mark allocation
in the long questions is an area which will
always carry some minor degree of subjectivity. His further comments
on the paper do
not, in my view, detract from the fairness of the
examination and do not provide support for the contention that the
November 2006
examination paper was unfair and aimed at failing the
appellant’s students. In my view the submissions by counsel
regarding
the November 2006 examination paper are without merit.
[23] It bears mention that the
first respondent, the Health Professions Council of South Africa is
the statutory
custos morum
of the medical profession and that
being mainly composed of members of the profession who know and
appreciate the standards demanded
of the profession, it has
considerable advantages over a court in the consideration and
evaluation of standards sought to be maintained
(
De Bruin
para
23). There can therefore be no question that the Board’s
assessment of the November 2006 examination must carry the
day.
[24] In the result the following
order is made:
The appeal is dismissed with
costs including the costs of two counsel.
__________________
K K MTHIYANE
DEPUTY PRESIDENT
APPEARANCES
For Appellant: PJ Tredoux (with
him C Cutler)
Instructed by:
Gillan & Veldhuizen Inc, Cape
Town
Matsepes Inc, Bloemfontein
For Respondents: DI Burger SC
(with him T Manchu)
Instructed by:
Gildenhuys Lessing Malatji,
Pretoria
Honey Attorneys, Bloemfontein