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[2010] ZASCA 65
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Health Professions Council of South Africa and Another v Emergency Medical Supplies and Training CC t/a EMS (435/09) [2010] ZASCA 65; 2010 (6) SA 469 (SCA) ; [2010] 4 All SA 175 (SCA) (20 May 2010)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
:
435/09
In the
matter between:
HEALTH
PROFESSIONS COUNCIL OF SOUTH AFRICA
First Appellant
PROFESSIONAL
BOARD FOR EMERGENCY CARE
PRACTITIONERS
Second Appellant
and
EMERGENCY MEDICAL SUPPLIES AND TRAINING CC
t/a EMS Respondent
Neutral citation: Health Professions Council v
Emergency Medical Supplies (435/09)
[2010] ZASCA 65(20 May 2010)
Coram:
Lewis,
Ponnan, Bosielo and Shongwe JJA and Majiedt AJA
Heard:
14 May 2010
Delivered:
20
May 2010
Summary: Appeal struck from roll; discrete
order, even if final in effect, should not be appealed against where
balance of convenience
requires that all issues in dispute be
determined in one hearing.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Western Cape High Court (Cape Town) (Motala J and Manca AJ sitting as
court of first instance):
The appeal is struck from the roll
.
The appellant is to pay the costs of the hearing, incurred from 30
April 2010, including those of two counsel.
REASONS FOR ORDER
______________________________________________________________
Lewis JA (Ponnan
,
Bosielo and Shongwe JJA and Majiedt AJA concurring)
[1] On 14 May 2010 this court, after hearing argument on the
appealability of the order of the high court, struck the appeal from
the roll and ordered the appellant to pay the costs of the hearing
including those of two counsel. These are the reasons for that
decision.
[2] The first appellant, the Health Professions Council of South
Africa (the Council), is created pursuant to s 2 of the Health
Professions Act 56 of 1974. Its objects, set out fully in s 3, are in
essence to administer, guide and control the various health
care
professionals governed by the Act, including emergency care
practitioners (sometimes referred to as paramedics). The second
appellant, the Professional Board for Emergency Care Practitioners
(the Board) is created in terms of s 15 of the Act. Its objects
include controlling and exercising authority in the training of
persons as paramedics. The accreditation of training institutions
and
programmes is regulated by s 16.
[3] The respondent, Emergency Medical Supplies and Training CC (EMS),
conducted a private training college and was accredited to
train
different levels of emergency care practitioners: basic ambulance
assistants, ambulance emergency assistants and critical
care
assistants. EMS was accredited as a training college by the Board. In
2004 the Board was reconstituted by members whom EMS
alleges are its
competitors. On 10 December 2006 the Board decided to withdraw EMS’s
accreditation in respect of all its
training courses, which had the
effect of closing the college. It informed EMS of the decision on 13
December without furnishing
reasons for doing so.
[4] EMS appealed to the Western Cape High Court, Cape Town against
the decision in terms of s 20 of the Act. It lodged a notice
of
appeal on 12 January 2007, citing various grounds, including the lack
of jurisdiction of the body that took the decision; that
the body
comprised members who had material conflicts of interest, were
actuated by an ulterior purpose or were reasonably suspected
of
having been biased.
[5] Section 20 reads as follows:
‘
Right to appeal
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.
Notice of appeal must be given
within one month from the date on which such decision was given.’
It is notable that the section does not set out any procedure for the
appeal. EMS, not having any reasons for the decision, and
having had
no notice or knowledge of the meeting at which the decision was
taken, requested the Council to prepare the record for
the appeal.
The Council declined.
[6] EMS then attempted itself to prepare a record and filed a lengthy
‘founding affidavit’ with several annexures in
support of
its grounds of appeal, on 12 January 2008. This was intended to serve
as the record. The Council did not respond to
it. Instead, it
launched an application for an order declaring that the appeal notice
was lodged out of time, or had lapsed, and
in the alternative that
the ‘record’ filed by EMS be struck out and substituted
with a record prepared by the Council.
In the alternative to that it
asked for an order that certain paragraphs of the ‘founding
affidavit’, deposed to by
Mr Craig Northmore of EMS, be struck
out as being irrelevant, argumentative or vexatious. It also asked
for an order as to the
procedure to be followed in the appeal,
necessitating a postponement.
[7] EMS opposed this application and filed an answering affidavit to
which the Council replied. The Council did not deal with the
merits
of the appeal in any of its affidavits or in heads of argument.
Motala J and Manca AJ presided over the hearing of the appeal
and
application. The principal issue with which they dealt was the nature
of the appeal afforded by s 20, for this would determine
some of the
other issues raised by the council.
[8] EMS argued that the appeal was a wide one,
such that the court would in effect rehear the dispute on evidence
that had not served
before the board when it took its decision. It
relied in this regard on the classic statement of Trollip J in
Tikly
& others v Johannes NO & others
1
as to the nature of statutory appeals.
‘
The word “appeal”
can have different connotations. In so far as is relevant to these
proceedings it may mean:
(i) an appeal
in the wide sense, that is, a complete re-hearing of, and fresh
determination on the merits of the matter with or
without additional
evidence or information (
Golden
Arrow Bus Services v Central Road Transportation Board
1948
(3) SA 918
(A) at 924;
S
A Broadcasting Corporation v Transvaal Townships Board and others
1953
(4) SA 169
(T) at pp175-6;
Goldfields
Investment Ltd v Johannesburg City Council
1938
TPD 551
at p 554);
(ii) an
appeal in the ordinary strict sense, that is, a re-hearing 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 that decision was right or wrong (eg
Commercial
Staffs (Cape) v Minister of Labour and another
1946
CPD 632
at pp 638-641);
(iii) a
review, that is, a limited re-hearing with or without additional
evidence or information to determine, not whether the decision
under
appeal was correct or not, but whether the arbiters had exercised
their powers and discretion honestly and properly (eg
R
v Keeves
1926
AD 410
at pp 416-7;
Shenker
v The Master
1936 AD 136
at pp 146-7).’
EMS contended that its appeal under s 20 of the Act fell into the
first class described by Trollip J.
[9] The Council on the other hand, argued that the appeal was one in
the strict sense, such that regard could be had only to the
evidence
before the decision-making body. It relied in this regard on a number
of cases in which appeals under s 20 of the Act
against disciplinary
decisions of the Council had been regarded as appeals in the true
sense: the courts have had regard only to
the material that had
served before the disciplinary tribunal. I shall not deal with these
cases for reasons that follow. The high
court decided that the appeal
against the Board’s decision was of a different ilk from that
of decisions taken by disciplinary
tribunals. The latter keep full
records of proceedings and the appeals against those decisions are
made on the records and evidence
before them. It held that the appeal
lodged by EMS was a wide appeal and that the court was not restricted
to the information before
the Board when it made its decision.
[10] The high court made a number of other findings: that the notice
of appeal was not out of time; that the appeal had been prosecuted
within a reasonable period and had not lapsed; that because the
appeal was a wide one the founding affidavit of EMS should not
be
struck out and replaced by a record prepared by the appellants; and
that the alternative application for the striking out of
paragraphs
of Northmore’s affidavit would be considered when the appeal
was heard.
[11] The high court held also that the notice of appeal could serve
as a notice of motion. It ordered that the appellants’
application, save for that to strike out specific paragraphs, be
dismissed, and postponed the hearing of the appeal sine die. The
court also made orders as to the further procedures to be followed,
and ordered the appellants to pay the costs in the application,
save
for those that might be incurred when the alternative application for
striking out is heard.
[12] The appellants applied for leave to appeal against the finding
that the appeal in terms of s 20 of the Act is a wide appeal,
as well
as against the orders that EMS’s notice of appeal was not out
of time, had been prosecuted within a reasonable period
and had not
lapsed. The high court granted leave to this court to appeal only
against the finding that the appeal in terms of s
20 of the Act is a
wide appeal.
[13] Before the hearing of the appeal this court requested counsel
for all parties to address us on whether this finding is appealable.
For although at first blush it appears to be a ‘judgment or
order’ which is appealable in terms of s 20 of the Supreme
Court Act 59 of 1959, being dispositive of a discrete issue, it also
appears that the determination of an appeal on this issue
alone might
not conclude the lis between the parties and there might be a further
appeal against the high court’s decision
on the appeal in terms
of s 20 of the Health Professions Act.
[14] Appealability can be a vexed issue.
2
The appellants rely on the principles stated by Harms AJA in
Zweni
v Minister of Law and Order
.
3
The learned judge said that, as a general rule, a judgment or order
will be appealable if it has three attributes: it must be final
in
effect and not susceptible of alteration by the court of first
instance; it must be definitive of the rights of the parties
and it
must have the effect of disposing of at least a substantial portion
of the relief claimed in the main proceedings.
[15] There have been many glosses on the principle
since. In
Moch v Nedtravel (Pty) Ltd t/a
American Express Travel Service
4
Hefer JA said that the three attributes were not cast in stone nor
exhaustive. And in
Jacobs & others v
Baumann NO & others
5
this court reiterated the principle
laid down in
Zweni
that in considering whether an order is final one must have regard to
its effect.
6
But the court also stated that even if an order does not have all
three attributes it may be appealable if it disposes of any
issue or
part of an issue. Conversely, however, even if an order does have all
three attributes it may not be appealable because
the determination
of an issue in isolation from others in dispute may be undesirable
and lead to a costly and inefficient proliferation
of hearings. I
shall elaborate on this later.
[16] The appellants submit that the finding that
the appeal in terms of s 20 is a wide appeal does dispose of a
substantial portion
of the relief claimed. And it cannot be revisited
by the high court. This much is true. But an appeal court must also
have regard
to the reason for refusing to entertain interlocutory
appeals: a piecemeal determination of issues is undesirable. In
Guardian National Insurance Co Ltd v
Searle NO
7
Howie JA said that the ‘piecemeal appellate disposal of the
issues in litigation’ was not only expensive, but that
generally all issues in a matter should be disposed of by the same
court at the same time. Thus even if, technically, an order
is final
in effect, it may be inappropriate to allow an appeal against it when
the entire dispute between the parties has yet to
be resolved by the
court of first instance.
[17] It should not be forgotten that Harms AJA in
Zweni
also
said
8
that ‘if the judgment or order sought to be appealed against
does not dispose of all the issues between the parties the balance
of
convenience must, in addition, favour a piecemeal consideration of
the case. In other words, the test is then “whether
the appeal
– if leave were given – would lead to a just and
reasonably prompt resolution of the real issue between
the parties”’.
[18] In
Smith v
Kwanononqubela Town Council
9
Harms JA, referring to this statement in
Zweni
,
considered that leave to appeal in the
Smith
case should not have been given before all the proceedings before the
court below had been determined. Most recently, in
National
Director of Public Prosecutions v King
10
Harms DP said:
11
‘
It is,
however, necessary to emphasize that the fact that an “interlocutory”
order is appealable does not mean that
leave to appeal ought to be
granted because if the judgment or order sought to be appealed
against does not dispose of all the
issues between the parties the
balance of convenience must, in addition to the prospects of success,
favour a piecemeal consideration
of the case before leave is granted.
The test is then whether the appeal, if leave were given, would lead
to a just
and reasonably prompt resolution of the real issue between the
parties.
12
Once leave has been granted in relation to a “judgment or
order” the issue of convenience cannot be visited or revisited
because it is not a requirement for leave, only a practical
consideration that a court should take into account.’
[19] The point was elaborated upon by Nugent JA in
a separate concurring judgment. He said:
13
‘
There
will be few orders that significantly affect the rights of the
parties concerned that will not be susceptible to correction
by a
court of appeal. In
Liberty
Life Association of Africa Ltd v Niselow
14
(in another court), which was cited with approval by this court in
Beinash
v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA), I observed that when the question arises
whether an order is appealable what is most often being asked is not
whether the
order is capable of being corrected, but rather whether
it should be corrected in isolation and before the proceedings have
run
their full course. I said that two competing principles come
into play when that question is asked.
On
the one hand justice would seem to require that every decision of a
lower court should be capable not only of being corrected
but of
being corrected forthwith and before it has any consequences, while
on the other hand the delay and inconvenience that might
result if
every decision is subject to appeal as and when it is made might
itself defeat the attainment of justice
(my
emphasis).
. . . .
I pointed
out in
Liberty
Life
that
while the classification of the order might at one time have been
considered to be determinative of whether it is susceptible
to an
appeal the approach that has been taken by the courts in more recent
times has been increasingly flexible and pragmatic.
It has been
directed more to doing what is appropriate in the particular
circumstances than to elevating the distinction between
orders that
are appealable and those that are not to one of principle.’
[20] In the
King
case
the court concluded that the order in question (that the applicant be
given access to the whole docket in a criminal case pending
against
him) was appealable, and that the balance of convenience required
that the order be appealed because the inconvenience
and prejudice
that would be caused should the order not be set aside was
considerable.
[21] In this case, however, it seems to me that
the balance of convenience requires that the order on the nature of
the appeal should
not be viewed in isolation. While it is not
susceptible to correction by the high court, there seems to be no
reason to consider
the issue before the s 20 appeal before the high
court has run its course. There may yet be another appeal on the
issues that have
still to be determined.
[22] As pointed out by EMS, if the appeal were to
succeed before us, the merits of the appeal under s 20 of the Act
would still
have to be decided and there would have to be a fresh
determination of how the record should be constituted. It contends
that because
the appellants kept no record of the meeting of the
Board, nor presented signed minutes, the record (a bundle of
documents) that
has been filed by the appellants is unsatisfactory.
EMS might well challenge the record, and a new appeal on the same
ground to
this court might be brought. This means that the order as
to the nature of the appeal was not final in effect, contends EMS.
The
only effect of a successful appeal would be that EMS would be
precluded from relying on evidence that had not served before the
Board when the decision was taken. And that in itself might give rise
to a challenge to the record prepared by the appellants.
The balance
of convenience, EMS contends, does thus not favour the hearing of the
appeal by this court.
[23] The appellants argue that if this court were
to uphold the appeal, finding that the appeal under s 20 is a narrow
one, then
the issues before the high court will be reduced and the
costs and inconvenience of determining what served before the Board
(and
should thus be considered by the high court) will be minimized.
The submission sows the seeds of its own destruction. It is precisely
this – the nature of the record – that is contested. The
nature of the appeal will not itself determine what constitutes
the
record if this court were to hold that the appeal is a narrow one.
There will still be contestation as to the adequacy of the
record
prepared by the appellants.
[24] I consider that the high court, in hearing the appeal under s 20
of the Act, should deal with all the outstanding issues:
the merits
of the appeal itself, the striking out application, and contentions
as to the record. If there is to be an appeal against
the high
court’s decision, the finding as to the nature of the appeal
can most appropriately and fairly be determined at
the stage when the
merits of the appeal are also at issue.
[25] A court, when requested to grant leave to
appeal against orders or judgments made during the course of
proceedings, should
be careful not to grant leave where the issue is
one that will be dealt with in isolation, and where the balance of
the issues
in the matter have yet to be determined. Of course, where
a litigant may suffer prejudice or even injustice if an order or
judgment
is left to stand – as would have been the case in
King
– then the position will be different.
[26] In so far as the costs of the hearing are concerned, EMS did not
oppose the application for leave to appeal on the basis that
the
finding on the nature of the s 20 appeal was not appealable. It was
only when this court asked for argument on the issue that
EMS
conceded that leave to appeal should not have been granted. The
attorney for EMS wrote to the attorney for the appellants on
28 April
2010, suggesting that the appeal be withdrawn, and that the costs be
costs in the cause. The offer was said to be open
until close of
business on 30 April. The appellants responded only on 3 May,
declining the offer. In the circumstances, I consider
that the
appellant should pay the costs of the hearing, which should run from
30 April.
[27] For these reasons we struck the appeal from
the roll and ordered the appellant to pay the costs of the hearing,
incurred from
30 April 2010, including those of two counsel.
_____________
C H Lewis
Judge of Appeal
APPEARANCES
APPELLANTS: D I Berger SC ( with him A T Ncongwane)
Instructed by Gildenhuys Lessing Malatji
Pretoria;
Honey Attorneys, Bloemfontein.
RESPONDENT: P Tredoux (with him C Cutler)
Instructed by Gillan & Veldhuizen Inc.
Cape Town;
Matsepes Inc
,
Bloemfontein.
1
1963 (2) SA 588
(A) at 590F-591A. See also
Pahad
Shipping CC v SARS
[2009] ZASCA 172
(2
December 2009), and Cora Hoexter
Administrative
Law in South Africa
pp 63-64.
2
See
Cronshaw &
another v Coin Security Group (Pty) Ltd
[1996] ZASCA 38
;
1996 (3) SA 686
(A) where Schutz JA said it is an intrinsically
difficult issue, not always answered in the same way.
3
1993 (1) SA 523
(A) at 532I-533A.
4
1996 (3) SA 1
(A) at 10F-11C.
5
2009 (5) SA 432
(SCA) para 9.
6
See also
Clipsal
Australia (Pty) Ltd v Gap Distributors (Pty) Ltd
2009 (3) SA 292
(SCA) where this court held that an order suspending
contempt proceedings pending review was appealable.
7
1999 (3) SA 296
(SCA) at 301B-C. See also
Van
Niekerk & another v Van Niekerk & another
2008 (1) SA 76
(SCA) paras 3-7.
8
At 531D-E.
9
1999 (4) SA 947
(SCA).
10
(86/09)
[2010] ZASCA 8
(8 March 2010).
11
Para 46.
12
Smith v Kwanonqubela Town Council
[above] para 16.
13
Paras 50-51. The references in this passage were
cited by Harms DP in his judgment as well in para 44.
14
(1996) 17 ILJ 673 (LAC).