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[2010] ZAGPPHC 40
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Emergency Care Training Association v Minister of Health and Others (35280/2009) [2010] ZAGPPHC 40 (4 June 2010)
IN THE HIGH COURT OF SOUTH AFRICA
/ES
(
NORTH GAUTENG HIGH COURT, PRETORIA
)
CASE NO: 35280/2009
DATE: 04 JUNE 2010
IN THE MATTER BETWEEN
EMERGENCY CARE TRAINING ASSOCIATION APPLICANT
AND
MINISTER OF HEALTH 1
ST
RESPONDENT
MEC FOR HEALTH, GAUTENG 2
ND
RESPONDENT
HEALTH PROFESSIONS COUNCIL OF SOUTH AFRICA 3
RD
RESPONDENT
PROFESSIONAL
BOARD FOR EMERGENCY CARE
PRACTITIONERS 4
TH
RESPONDENT
CHAIRPERSON:
PROFESSIONAL BOARD FOR EMERGENCY
CARE
PRACTITIONERS 5
TH
RESPONDENT
SOUTH AFRICAN QUALIFICATIONS AUTHORITY 6
TH
RESPONDENT
JUDGMENT
KOLLAPEN, AJ
Background and legal context
[1] Emergency care practitioners who often are the first point of
contact for critically ill or injured patients require appropriate
training, skills and expertise to enable them to effectively
discharge their duties.
[2] While there are different qualifications that can be obtained in
the emergency care industry, for the purposes of this application
the
following qualifications are relevant:
2.1 Basic Ambulance Assistant (BAA);
2.2 Critical Care Assistant (CCA);
2.3 Ambulance Emergency Assistant (AEA).
These qualifications are usually obtained by way of short courses and
are provided by private colleges who are accredited with
the 5
th
respondent.
[3] The 4
th
respondent, the Professional Board for
Emergency Care Practitioners, has in terms of section 16(1) of the
Health Professions Act
No 56 0f 1974 the authority to exercise
control over education and training of emergency care practitioners
as well as the power
to approve training that any educational or
training institution wishes to offer in pursuance of the
qualifications referred to.
[4] In terms of section 17 of the Act provision is made for the
registration of any registrable health profession while section
18
provides for the keeping of registers in respect of persons so
registered.
[5] It is common cause that a process to review and upgrade the
qualifications required for BAA, CCA and AEA was initiated by the
4
th
respondent in or about 2004 and various meetings with affected
stakeholders were convened towards this objective. The applicant
was
one such stakeholder.
[6] The process would have ultimately contemplated the phasing out of
the existing short course training as well as the "closure"
of the registers referred to in section 18.
[7] It is also common cause that in terms of section 24 of the Act
only the Minister (on the recommendation of the third respondent)
has
the power to prescribe the qualifications required as well as to
phase out existing short course qualifications from the list
of
approved qualifications. In addition the "closure" of any
register can only be effected by the Minister by the promulgation
of
regulations removing any such profession from the list of registrable
professional categories.
[8] 0n 17 December 2008 the 3
rd
and 4
th
respondents wrote to the applicant’s attorneys advising that
the 3
rd
respondent had resolved as follows:
"…wish to advise that the Board (4
th
Respondent) resolved that ECTA
(the applicant) be advised as follows :-
The BAA and CAA register will close on the 1 December 2010 and the
tentative date for the closure of the AEA is 1 December 2014.
However
the closure date for this register will be reviewed during 2012. BAA
and CCA qualifications will not be recognized for
registration with
effect from 1 December 2010. It is important to note that persons who
are registered as BAA’s and CCA’s
on 1 December 2010
will retain their registrations and will continue to practice,
however the closure of the registers means that
no new names will be
added to these registers after this date . Regulations relating to
the closing of the registers will be published
by the Minister of
Health in the Government Gazette for public comment before
promulgation ; “
[9] 0n 23 January 2009 the 3
rd
and 4
th
respondent wrote to all accredited training institutions advising
them in substantially the same terms as set out above.
Issues in dispute
[10] The applicant seeks to review and set aside this ‘decision’
of the 3
rd
and 4
th
respondent as articulated in
the letters of 17 December and 23 January and argue in the
main that:
(i) The decision is
ultra vires
in that neither the 3
rd
nor the 4
th
respondent has any power to phase out training
or close a register. That power is vested in the Minister only.
(ii) The decision was arbitrary and in conflict with the legitimate
expectations created by the various meetings between the 3
rd
and 4
th
respondent and stakeholders in the emergency care
industry including the applicant, namely that the phasing out of the
short courses
and the closure of the registers would only commence
after 2014.
[11] The 3
rd
, 4
th
and 5
th
respondents oppose the relief sought and in their opposition:
(i) challenge the
locus standi
of the applicant to bring
these proceedings;
(ii) contend that the "decision" that was taken by the 3
rd
and 4
th
respondent and evidenced in the letters of
17 December and 23 January was no more than a proposal to
submit draft regulations
to the Minister for consideration;
(iii) contend that in the absence of any regulations promulgated by
the Minister the "decision" is incapable of being
reviewed;
and
(iv) contend accordingly that the bringing of the application by the
applicants was premature and falls to be dismissed.
Discussion
Locus standi
[12] The respondents' challenge to the applicant's
locus standi
is confined to whether the applicant has the legal capacity to bring
these proceedings as opposed to it having an interest in the
matter.
While the respondents concede the substance of the applicant’s
interest in the proceedings, it argues that it has
not proved that it
has the capacity to bring the application . In particular the
failure by the applicant to attach a copy of
its constitution which
would empower it to bring this action or advance allegations
sufficient to establish its
locus standi
is seen as being
fatal to its claim to
locus standi
.
[13] The applicant is described in the Founding Affidavit as "a
voluntary association providing training in emergency care".
There is a further description of it as being ‘a representative
body of all these training colleges’. It annexes a
list of its
members in the papers and further contends that the 3
rd
respondent has recognised it as a stakeholder and invited it to
various stakeholder meetings. It further argues that by
virtue
of the provisions of rule 14(2) of the Uniform Rules of the Supreme
Court it has the necessary
locus standi
.
[14] It is clear that the provisions of rule 14(2) are procedural and
not substantive in nature and cannot serve to confer
locus standi
on any entity that otherwise would lack the capacity to bring
proceedings. See
Bantu Callies Football Club( also known as
Pretoria Callies Football Club vs Mothlamme and other 1978(4) SA 486
(T) .
[15] Leaving aside the issue of rule 14(2) in these proceedings it
was argued for the applicant that our new constitutional dispensation
has significantly changed the approach to
locus standi
of
voluntary associations and that there has been a significant
departure from the common law position that was confirmed in
Interim Award Council v The Premier of the Western Cape
1998(
3) SA 1056
(C) where it was held inter alia that the primary aids in
the determination of
locus standi
of a voluntary association
included in the first instance a reference to it’s constitution
to determine whether it was a
universitas.
In the event that
the express or implied terms of the constitution were not helpful
regard would then be had to the nature of and
the objects of the
association.
Applicant sought to rely on the decision in
Highveldridge
Residents Concerned Party vs Highveldridge TLC
2002(2) SA 66
(TPD) where the court had to consider the challenge to the
applicant's
locus standi
under circumstances where from the
constitution of the applicant it did not appear that the applicant
possessed legal personality
or that the applicant was authorised by
its constitution to institute action in its own name and further
where it did not appear
that there was a resolution authorising the
deponent to act on behalf of the applicant in the proceedings
brought.
[17] In that matter the court, moving from the premise that the right
regarding standing must be interpreted generously and extensively
and
having regard to the fact that the attack on the alleged lack of
locus standi
focused primarily on its capacity as a voluntary
association as opposed to its interest in the proceedings, found that
the applicant
did not comply with the requirements of the common law
in so far as they pertain to the
locus standi
of a voluntary
association.
[18] However, the court went on to find that the restrictions imposed
by the common law should not apply
without qualification
to
voluntary associations seeking to invoke section 38 of the Bill of
Rights to seek redress as to do so would disregard the interest
of
"the poorest in our society who often are not in a position
where legal advice is readily accessible and who are more
often than
not dependent upon action taken by informally structured associations
of civil society so that legitimate issues may
be addressed on their
behalf".
[19] Finding that the common law restrictions would constitute an
"impenetrable obstacle" contrary to the constitutional
context, the court dismissed the challenge to the applicant's
locus
standi
.
[20] In
Rail Commuter Action Group vs Transnet Ltd and Others
2003(5) S A 518 CPD the court found that a "voluntary
association formed to protect the rights of a vulnerable constituency
and with the object of holding a public body accountable to the
public, should, it seems not be subjected to unnecessary restrictions
before being heard by our courts".
[21] In both these matters,
Highveldridge
and the
Rail
Commuter Action Group ,
the courts justifiably departed from the
common law requirements regarding
locus standi
under
circumstances where the applicants were seen as part of a
marginalised and vulnerable community, with limited access to means,
legal representation and who were advancing an issue of great
significance to their lives and livelihoods. In the former
instance the provision of water and in the latter instance the
personal safety of commuters on public trains.
[22] The approach to standing evidenced in the above matters accords
with the sentiments of the Constitutional Court articulated
in the
matter of Ferreira
vs
Levin
NO 1996(1) 984 SA (CC) .
Chaskalson P (as he then was) said:
‘it is my view that we should rather adopt a
broad approach to standing. This would be consistent with the
mandate
given to this Court to uphold the Constitution and would serve to
ensure that constitutional rights enjoy the full measure
of the
protection to which they are entitled.
There can hardly be opposition to the proposition that in
constitutional matters a broad approach to standing , both
in
relation to interest as well as to capacity , is not only justifiable
but is also necessary to give full effect to the spirit
of the
Constitution.
A question critical to and central in the determination
of these proceedings is whether the broad and expansive approach
to
standing with which I associate myself, is authority for the
proposition that in Constitutional matters the common law
requirements
of standing in so far as they pertain to voluntary
associations have been rendered obsolete or indeed that the departure
from then
is justifiable under any or all circumstances. I do not
interpret and understand that to be the case. An analysis of the
dicta
in both the
Highveldridge
and
Rail Commuter Action
Group
matters suggest that the facts and circumstances of each
matter weighed heavily in the decision as to whether a departure from
the
common law requirements was justified.
In
Highveldridge
the court expressly pointed out
that the restrictions of the common law should not apply "without
qualification" and
it does appear that the departure was
justified by the particular circumstances of the matter on hand. The
words "without
qualification" would certainly suggest that
the approach that should be taken should be dependent upon the facts
and circumstances
of each particular matter. It can hardly be
argued that when a voluntary association seeks to invoke section 38
or indeed
seeks to advance the protection of any right in the Bill of
Rights the issue of
locus standi
simply becomes moot. There is
in my view a marked difference between adopting a broad and expansive
approach to standing as opposed
to a view that suggests that standing
has become largely irrelevant in constitutional matters. Issues of
interest and capacity
in the context of locus standi remain relevant,
even in constitutional matters , albeit that the threshold in
satisfying those
requirements has been considerably reduced in the
interests of a functioning and effective constitutional democracy.
[23] Having regard to the matter on hand it is not in dispute that
the applicant did not support its claim to
locus standi
by
attaching a copy of its Constitution to its papers. It is not
clear from the papers whether in fact the applicant has
a
Constitution. While a list of members of the applicant is attached,
there is no resolution nor is there any description of what
the aims
and objectives of the applicant are apart from being stated that it
is a "voluntary association providing training
in emergency
care".
[24] However, it is common cause that the applicant has been
recognised by the 3
rd
respondent as a stakeholder in the
emergency care industry and that there have been ongoing discussions
between the 3
rd
and 4
th
respondents and the
applicant. The respondent has conceded that the applicant does
indeed have an interest in these proceedings.
What it challenges is
whether the applicant has the
capacity
to bring these
proceedings. For the sake of completeness it appears this challenge
to the capacity of the applicant has some history
and was not simply
opportunistic in respect of these proceedings. In it’s
Answering Affidavit the Respondents point out that
…”During
the consultative process relating to short course qualification the
Board ( 4
th
Respondent) repeatedly asked the applicant to
provide it with a copy of its constitution so that the Board could
know the basis
upon which the applicant purported to represent its
members in the consultative . Despite these requests, the applicant
has, to
date, and even in this application, failed to furnish a copy
of its constitution.” These assertions stand unchallenged.
[25] Mr Fourie for the applicant urged the court to follow the
Highveld Ridge
and
Rail Commuter
decisions and to
depart from the common law requirements required to establish
locus
standi
. It must be evident that such a departure as is
argued for must be justified in the circumstances and the context of
each
particular matter.
[26] There are various features that distinguish the applicant in the
present matter from the applicants in the
Highveld Ridge
and
Rail Commuter
matters. In addition there are various features
that distinguish the facts in this matter from those that were placed
before the
court in those matters.
[27] In the
Highveld Ridge
matter the court having regard to
the Constitution of the applicant described it as being in the spirit
of a popular movement rather
than characteristic of an orthodox
voluntary association. In that matter the constitution of the
applicant was indeed placed before
the court and while it was
rudimentary it purported to set out the objectives of the applicant
and attempted to describe its structure
and office bearers.
[28] In the
Rail Commuter
matter the applicant was constituted
at a public meeting called to give expression and demand action about
the grave dangers of
travelling by train. At that public
meeting a committee was formed and from the minutes of that public
meeting it appears
that a specific motion was passed authorising it
to bring these proceedings.
[29] The applicant in the present matter has been in existence for
some time now it appears. It is described as a training organisation
as well as a representative body of emergency care training colleges.
The absence of the Constitution makes it difficult to ascertain
what
its aims and objectives are precisely but a cursory glance at a list
of some of its members include what may be regarded as
commercial
entities (Netcare, ER24) and certainly does not come across as an
organisation that could be described as a community
organization . It
has access to legal representation and appears to have engaged with
the Respondents in a competent and comprehensive
manner.
[30] In the present matter apart from failing to attach its
Constitution to its founding papers the applicant offers no
explanation
for its failure to do so or indeed fails to set out any
facts from which the court could possibly conclude that it has the
necessary
capacity to bring these proceedings. 0ne cannot fathom why
it chose the stance. It appears to have relied on the provisions of
rule 14(2). It was accepted by both counsel that rule 14(2) was
procedural in nature and could not endow a voluntary association
that
lacked capacity with
locus standi
.
[31] In my view the position of the applicant as well as the nature
of the relief it seeks (a matter I will deal with shortly)
distinguish it from the instances where the courts have regarded
departures from the common law requirements justifiable and
consistent
with the spirit of the constitution. Accordingly I am not
convinced that the applicant has made out a case why on the facts of
the present matter such a departure is warranted.
It was never contended for the applicant that the common
law requirements were restrictive, created an insurmountable
obstacle
or were difficult to comply with . On the papers the position of the
applicant was simply that the provisions of Rule
14(2) endowed it
with locus standi. This was a misconceived understanding of the law
as Rule 14(2) is procedural and not substantive
in nature. Even in
arguing for a departure from the common law the applicant has not
placed anything before the Court why such
departure should be
warranted. As I understand it, it’s position is that since this
is a constitutional matter it needs aver
no more than that it is a
voluntary association. As stated this is not my understanding of
what a broad and expansive approach
to standing means and the
applicant who fails to at the very least to place facts before the
Court in support of it’s claim
to locus standi , even when
invited to do so , must then accept the risk that such a stance
carries .
[32] I am alive to the often expressed concern that a successful
challenge to
locus standi
may have the consequence that a
litigant who otherwise would have a good case and be entitled to
relief is barred from doing so.
Certainly that was a consideration
which also applied in the
Highveld Ridge
and
Rail Commuter
matters. The situation is somewhat different in this instance.
[33] The legal issue is common cause between the parties in that both
accept that the power to close registers and to phase out
training is
vested in the Minister only. The 3
rd
and 4
th
respondents have under oath confirmed that in the absence of
regulations promulgated by the Minister they:
(i) will not withdraw any consents granted;
(ii) will not reject any applications for training;
(iii) will not phase out any training courses; and
(iv) will not close any registers.
[34] While I am not convinced that such was always the stance of the
3
rd
and 4
th
respondent its undertaking given in
respect of its answering affidavit must be accepted on the face of it
and under those circumstances
there can be no apprehension on the
part of the applicant that the 3
rd
and 4
th
respondent will act to phase out training courses or close registers
until such time as regulations had been promulgated by the
Minister.
[35] That being the case it can hardly be said that circumstances
relative to the relief being claimed is such that it may be a
factor
in supporting the contention that the applicant is entitled to claim
a departure from the common law requirements of
locus standi
.
[36] For the reasons above the applicant has failed to prove its
locus standi
in these proceedings and accordingly there is no
need to deliberate on the merits of the matter save for what is set
out above.
Costs
[37] While ordinarily costs should follow the result in this matter
the applicant was seeking to advance a constitutional issue
and an
order that each party should pay its own costs would be appropriate.
I accordingly make the following order:
(i) The challenge to the
locus standi
of the
applicant is upheld and the application is dismissed.
(ii) Each party is to pay its own costs.
N.
KOLLAPEN
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
35280-09
HEARD ON:
26 APRIL 2010
FOR THE APPLICANT:
ADV. D.S. FOURIE SC
INSTRUCTED BY:
HURTER SPIES INC
FOR THE RESPONDENTS:
ADV. M. CHASKALSON SC AND
ADV. N. JELE
INSTRUCTED BY:
GILDENHUYS LESSING MALATJI INC