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[2022] ZAKZPHC 7
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Hospital Association of South Africa v Head of Department, Kwazulu-Natal Department of Health and Others (9148/2021P) [2022] ZAKZPHC 7; [2022] 2 All SA 831 (KZP) (10 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case No: 9148/2021P
In
the matter between:
HOSPITAL
ASSOCIATION OF SOUTH
AFRICA
APPLICANT
and
HEAD
OF DEPARTMENT, KWAZULU-NATAL
DEPARTMENT
OF HEALTH
FIRST RESPONDENT
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR
KWAZULU-NATAL
DEPARTMENT OF HEALTH
SECOND RESPONDENT
SOUTH
AFRICAN NURSING COUNCIL
THIRD RESPONDENT
Coram:
Seegobin J
Heard:
02
February 2022
Delivered:
10 March 2022
ORDER
The following order is
granted:
1. The
applicant is granted, in the interest of justice, an extension of
time and condonation, in terms
of section 9 of the Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA’) for its
failure to institute proceedings
within the period prescribed in
section 7 of PAJA.
2. The
first respondent’s failure and/or refusal to issue Letters of
Support to the applicant’s
members is hereby reviewed and set
aside.
3.
The first respondent’s failure and/or refusal to issue Letters
of Support to the applicant’s
members is substituted with an
order directing the first respondent to, within ten (10) days from
service of this order, issue
Letters of Support to the applicant’s
members in terms of the Regulations Relating to the Accreditation of
Institutions as
Nursing Education Institutions (GN R173,
GG
36234, 8 March 2013) read with the National Department of Health
Circular 1 of 2018 issued on 23 November 2018.
4.
The first and second respondents are ordered to pay the costs of this
application, such costs
to include the costs of two (2) counsel.
JUDGMENT
Seegobin
J
Introduction
[1] This
application concerns the training and placement of nurses within the
health care system of
KwaZulu-Natal. By virtue of their training and
sense of caring, nurses occupy the single most important component in
any health
care system in the world. It goes without saying that they
are the frontline workers, the everyday heroes who stand between life
and death. Apart from caring for patients and helping them to cope
with their illnesses, nurses have always been at the forefront
of
change in health care and public health. But as this application
shows, their importance appears to be lost on the authorities
in
charge of public health in this Province.
[2] This
application is being pursued by the Hospital Association of South
Africa or HASA as it is
commonly referred to. HASA is a voluntary
association with a membership comprising of approximately 80% of the
over 200 private
hospitals in South Africa, including but not limited
to Life Healthcare Group Proprietary Limited, Mediclinic Southern
Africa Proprietary
Limited, and National Hospitals Proprietary
Limited. HASA’s founding and other affidavits in these
proceedings have been
deposed to by its Chief Executive Officer, Dr
Dumisani Sizwe Bomela.
[3] The
first respondent is the Head of Department (‘the HOD’) of
the KwaZulu-Natal Department
of Health (‘the Department’)
who is the administrative and accounting officer of the Department.
The HOD is cited in
this application as the public official who is
specifically mandated to issue public and private Nursing and
Education Institutions
(‘NEIs’) with Letters of Support
in terms of the National Department of Health Circular 1 of 2018
(‘the Circular’)
issued on 23 November 2018.
[4] The
second respondent is the Member of the Executive Council (‘the
MEC’) who is responsible
for the Department.
[5]
The third respondent is the South African Nursing Council (‘the
Nursing Council’),
established as a juristic person in terms of
section 2 of the Nursing Act 50 of 1978 (now repealed) and which
continues to exist
as such under the provisions of the Nursing Act 33
of 2005 (‘the
Nursing Act&rsquo
;). The Nursing Council is
entrusted to ‘establish, improve, control conditions, standards
and quality of nursing education
and training. . .’.
[1]
The Nursing Council is also a statutory body which accredits nursing
education institutions. Whilst no specific relief has been
sought
against the Nursing Council it has, however, filed a brief advisory
affidavit. I will deal with the contents of this affidavit
later and
make some comment on whether it was of any assistance to the court or
not. The Nursing Council abides the decision of
this court.
Issues
[6]
This application was initially launched as one of urgency on 15
October 2021. With the application being
opposed by the first and
second respondents, the matter was adjourned for the filing of
affidavits. By the time the matter served
before me on the opposed
roll on 2 February 2022 the issue of urgency had dissipated somewhat.
This was mainly due to the fact
that the matter had been accorded
some preference on the opposed roll. The first and second
respondents, however, still persisted
with the view that the matter
lacked urgency. Having regard to the nature of the relief being
sought and its importance to the
health care system and the public at
large, I consider that the matter is sufficiently urgent and requires
finality.
[7]
The two issues that require determination are first, whether the
applicant should be granted condonation
in terms of section 9 of the
Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’),
and second, whether the applicant
is entitled to the relief set out
in prayers 3, 4 and 5 of its notice of motion.
[8] The
full extent of the relief set out in the notice of motion is the
following:
‘
1.
That the rules relating to forms, services, notice and time period be
dispensed with
and this application be heard as one that is urgent as
provided for in terms of Rule 6(12) of the Uniform Rules of Court.
2.
Granting the applicant an extension of time and condonation, in terms
of section
9 of the Promotion of Administrative Justice Act 3 of 2000
(“PAJA”) for the applicant’s failure to institute
proceedings within the period prescribed in terms of section 7 of
PAJA in the interests of justice.
3.
Reviewing and setting aside the first respondent’s failure
and/or refusal
to issue letters of support to the applicant’s
members.
4.
Substituting the first respondent’s failure and/or refusal to
issue letters
of support to the applicant’s members with an
order directing the first respondent to, within ten days, issue
letters of
support to the applicant’s members in terms of the
Regulations Relating to the Accreditation of Institutions as Nursing
Education
Institutions (Government Notice R173 in Government Gazette
36234 of 8 March 2013) read with the National Department of Health
Circular
1 of 2018 issued on 23 November 2018.
5.
Ordering the first respondent to pay the costs of this application
including
the costs of two counsel.’
[9]
At the opposed hearing on 2 February 2022, the applicant was
represented by Mr Mooki
SC and Mr Mohapi, the first and second
respondents by Ms Bhagwandeen and Ms Govender and the third
respondent by Ms Antulay.
Purpose
of application
[10]
HASA brings this application in order to review and set aside the
alleged failure
[2]
or refusal
[3]
by the HOD to issue the pre-requisite Letters of Support to those of
HASA’s members who have registered private higher education
institutions (also known as private nursing education institutions)
(‘the decision’) in terms of the Regulation
Relating to the Accreditation of Institutions as Nursing Education
Institutions
[4]
(‘the
regulations’) read with the National Department of Health
Circular 1 of 2018 referred to above.
[11]
The decision was communicated to HASA on 16 May 2019 when the
Department informed HASA that no
Letters of Support would be issued
to any private nursing education institution for a period of three
years. The verbally communicated
reason given to HASA for the
decision was that there was a surfeit of existing qualified nurses
available who should be employed
instead of training new nurses.
Regrettably, according to HASA, the Department’s decision and
reasons are dismissive and
superficial because the Department, in
giving them, did not bother to provide HASA and its members with any
evidence in this regard.
[12]
In terms of the regulations referred to above, the issuing of Letters
of Support is a pre-requisite
to a process that will eventually come
before the Nursing Council when the issue of accreditation will be
dealt with. This is evident
from the provisions of regulation 4,
which deals with the submission of applications for accreditation as
a nursing education institution.
In the context of this application,
regulations 4(1), 4(2) and 4(3) are important:
‘
4. Submission
of application for accreditation as a nursing education
institution.
—
(1) The
person in charge referred to in regulation 2 (1) must—
(
a
)
apply for accreditation to the Council in writing, at least twelve
(12) months prior to the
intended date of commencement of the course,
in a format and at a submission date as determined by the Council;
(
b
)
submit to the Council the prescribed completed institutional
self-assessment and institutional
portfolio as specified
in regulation 5;
(
c
)
pay to the Council the prescribed application fee;
(
d
)
provide evidence of meeting the requirements of regulation 2;
(
e
)
provide evidence of meeting the prescribed accreditation
requirements, criteria and
standards for nursing education and
training as determined by the Council;
(
f
)
provide details of the nursing education and training programme(s)
that the institution
intends to offer; and
(g)
provide evidence of support from the relevant national or provincial
health authority
that there is a need for such education and
training.
(2) The application for
accreditation must only be considered by the Council once all of the
conditions and the requirements
referred to in regulations 2
(1) and 4 (1) are met.
(3) An
incomplete application must not be considered and such an application
must be returned to the applicant.
’
(My
emphasis.)
[13]
The provisions of regulation 4(2) and 4(3) must be read together with
the provisions of the Circular
dated 23 November 2018.
[14]
According to its heading, the aim of the Circular is ‘to guide
provinces on utilisation
of public health establishments for clinical
placement by nursing education institutions’.
[15]
The Circular provides as follows:
‘
1.
The National Department of Health (NDoH) is currently facilitating
implementation of
new nursing programmes that will lead to
registration in the categories contemplated in section 31 of the
Nursing Act, 2005
(Act 33 of 2005). These programmes are
aligned to the Higher Education Qualifications Sub-framework and
offered in compliance with
the requirements of the Department of
Higher Education and Training.
2.
In line with provisions of the South African Nursing Council (SANC)
Government
Notice No. 173 of 08 March 2013, all public and private
NEIs that will require to place their students in public health
establishments
for clinical training are required to submit a letter
of support signed by provincial Heads of Health (HODs) before
application
for accreditation by both Council on Higher Education
(CHE) and SANC is considered.
3.
HODs received numerous requests for letters of support from private
nursing educations
institutions (NEIs) to place students in public
health establishments for clinical training.
4.
At its meeting held in February 2018, the Technical Committee of the
National
Health Council resolved that the Director-General would
provide guidance to HODs for managing these requests.
5.
Guidance is hereby provided as follows:
a) Priority
for placement of students should be given to public sector NEIs;
namely,
nursing colleges and universities.
b) Request
for letters of support from private NEIs should be considered in
relation
to provincial plans for human resources.
c) Existing
memoranda of agreements (MOAs) that were entered into between
provinces
and NEIs with regards to legacy programmes should remain
valid in line with the stated programme and dates of expiry of MOAs.
d) New
MOAs between provinces and NEIs will have to be entered into to
support implementation
of new nursing programmes.
e) Request
for letters of support from private NEIs for the new qualifications
should
indicate evidence of existing clinical training facilities
outside of public health establishments. These clinical training
facilities,
should be SANC-accredited and aligned to SANC guidelines
per programme.
6.
The implementation of this circular becomes effective on the date of
issue.’
[16]
HASA contends that when one has regard to the provisions of
regulation 4(2) and (3), read with
the provisions of the Circular, it
becomes clear that the HOD’s Letters of Support are necessary
for the Nursing Council
to consider the accreditation applications of
HASA members who have Department of High Education and Training
(DHET) registered
Private Higher Education Institutions (PHEIs) in
KwaZulu-Natal. HASA submits that its members meet all the
requirements to have
Letters of Support issued to them and to have
their accreditation applications considered by the Nursing Council,
which is the
statutory body mandated to evaluate the nursing training
programmes and institutions. HASA accordingly contends that its
members’
accreditation applications are thus hampered by the
decision and as such, these applications cannot be considered by the
Nursing
Council.
[17]
HASA further contends that the passage of time since 16 May 2019 has
not dissipated the urgency
of this matter because (a) in this period
HASA has been in prior extended engagements with the Department with
the aim of seeking
a peaceable and amicable resolution, and (b) more
importantly, the adverse impact of the decision on HASA’s
members whose
accreditation applications cannot be considered due to
the lack of Letters of Support from the Department, is continuously
adverse
to HASA’s members and harmful to members of the public
in that the KwaZulu-Natal healthcare system is in need of suitably
qualified nurses.
Need
for training and placement of nurses in KwaZulu-Natal
[18]
According to HASA, nurses comprise about two-thirds (65%) of South
Africa’s health care
workers. This fact has not been disputed
either by the HOD or the Nursing Council. In the founding affidavit,
Dr Bomela states
that the context within which HASA seeks
accreditation for its members to train new nurses in various
disciplines and within which
it brings this application, is against
the backdrop of:
(a)
The Covid-19 pandemic in relation to which, like most countries,
South Africa has just recovered
from the peak rate of the third wave
(at the time when this application was instituted) of infections.
(b)
An aging nursing population in KwaZulu-Natal and nationally, as is
evident from the population
to nurse ratio in South Africa (set out
in para. 32.2 of the founding affidavit) obtained from the 2018
(pre-Covid-19) national
census in the face of technological
advancements in the discipline of medicine and evolving complexities
in the treatment of patients.
(c)
A feature online article by Health24 of 7 October 2021,
[5]
pointing to a looming health care crisis in the country’s aging
nursing population. The article reports, based on credible
statistics, that almost half of the nursing workforce in South Africa
is set to retire in the next 15 years. The article suggests
that
existing shortages of nurses will become even greater unless concrete
steps are taken to boost training and retention of nurses.
(d)
The specific regulatory framework for the education and training of
nurses which requires
that any nursing education institution obtains
a Letter of Support, in this instance from the HOD.
[19]
In paragraphs 33 - 39 of HASA’s founding affidavit, Dr Bomela
alludes to the broader pandemic
context and the dire need for more
nurses to be trained and placed. He says the following:
‘
33.
Our country, like most, has just come out of the third wave of the
COVID-19 pandemic and is making
progressive strides in the national
roll-out of the vaccine. Yet we are far from completely putting
COVID-19 pandemic behind us.
Far from over, the COVID-19 pandemic has
dealt a blow on the frontline human resources of both the public and
private healthcare
sector as the country continues its fight against
the virus, inter alia, through administering the vaccine – key
to which
national campaign nurses have been.
34.
The impact of COVID-19 pandemic on the nursing workforce has been
pronounced across the
globe. It is common knowledge that nurses are
the mainstay of healthcare. They are the backbone of the healthcare
system and have
been in the frontline of the national response and
fight against COVID-19 pandemic, but not without the grave cost of
the many
lives of nurses who have been lost to the fight against the
COVID-19 pandemic.
35.
In the public sector, nurses have fallen ill and have died during the
fight against COVID-19
pandemic, often because of the poor provision
of personal protective equipment (PPE) and the initially low roll-out
of the vaccine
to South African healthcare frontline workers
including to nurses. Many other nurses are experiencing work related
stress and burnout.
These challenges are not unique to our country,
but are faced by most countries and, as such, have been documented
and underscored
by the International Council of Nurses (ICN), a
federation of more than 130 national nurse associations representing
the more than
20 million nurses worldwide, in its report published on
30 May 2021, made available online
https://onlinelibrary.wiley.com/doi/epdf/10.1111/inr.12681
.
36.
The South African healthcare system and industry, in which HASA
members operate, has not
been immune to the adverse impacts of the
COVID-19 pandemic on healthcare workers, particularly on nurses. The
impact of the COVID-19
pandemic is such that it has now left the
province of KwaZulu-Natal with a shortage of nurses.
37.
The COVID-19 pandemic has therefore brought about a marked
proportional decrease in the
available number of nurses in both the
public and private healthcare sectors in various disciplines.
38.
As a considerable healthcare system contributor, HASA has identified
the need to train and
staff its members’ hospitals with
suitably qualified nurses in all disciplines in KwaZulu-Natal, inter
alia, as part of the
response to the COVID-19 pandemic but also
having regard to the post-pandemic societal needs in the province in
an increasingly
changing world.
39.
I interpose to mention that added to this context brought about by
the COVID-19 pandemic
strain on the nursing profession, is the
long-standing adverse impact that the phasing out of legacy
qualification programmes and
the transition to implement new higher
education qualification programmes has had to significantly reduce
the nursing profession
outputs from education institutions. The
crisis of a declining nursing population is not only exacerbated by
the strain put on
it by the COVID-19 pandemic, but it has been a long
time in the making due to the inadequate general output of qualified
nurses
in recent years.’
Regulatory
context
[20]
I have already dealt with some of the relevant regulations which
govern the process of accreditation
of nursing education institutions
and nursing education programmes by the Nursing Council.
Accreditation has been defined by the
regulation 1 to mean
‘
certification
of an institution, for a specified period, recognising it as a
nursing education institution with the capacity to
offer a prescribed
nursing programme, upon compliance with the Council’s
prescribed accreditation requirements, criteria
and standards for
nursing education and training
.’
[21]
The conditions and requirements for the accreditation of an
institution as a nursing education
institution is governed by
regulation 2 which provides:
‘
2. Conditions
and requirements for accreditation of an institution as a nursing
education institution.
—
(1) An
institution may be accredited as a nursing education institution if—
(
a
)
it has a designated person in charge of the nursing education and
training institution who—
(i)
is registered with the Council as a professional nurse;
(ii)
has an additional qualification in nursing education;
(iii)
is in possession of a management qualification;
(iv)
holds at least a bachelor’s degree in nursing; and
(v)
holds a nursing qualification that is a level higher than the highest
qualification offered
by the nursing education institution or, if the
highest qualification offered is a doctoral degree, a nursing
qualification at
an equal level;
(
b
)
in the case of a private institution, it is registered with the
Department of Higher
Education and Training in terms of relevant
legislation;
(
c
)
in the case of a public entity, it is established or declared by the
Minister of Education
as a higher education and training institution
in terms of relevant legislation;
(
d
)
the programme is accredited with the Council on Higher Education; and
(
e
)
the programme meets the accreditation requirements, criteria and any
standards for nursing
education and training as determined by the
Council from time to time.
(2) Such an institution
must have—
(
a
)
a formal agreement(s) with one or more of the relevant authorities
responsible for clinical
facilities, which address the clinical
learning opportunities, clinical accompaniment and supervision needs
of learners placed
in such health services;
(
b
)
a fixed physical address;
(
c
)
access to sufficient clinical facilities that are appropriate for the
achievement of the
outcomes of the programme; and
(
d
)
evidence of quality control mechanisms over clinical education and
training.
(3) Such institution must
demonstrate that there is a need for the programme to be accredited.
(4) Such
institution must have infrastructure and resources that are adequate
and relevant for the achievement of the
outcomes of the programme.’
[22]
The accreditation process itself is dealt with by regulation 3 which
provides:
‘
3. Accreditation
process.
—
(1) The
accreditation process includes—
(
a
)
the submission of an application for accreditation;
(
b
)
the review of application for accreditation;
(
c
)
an audit, which may include an audit visit, to validate the evidence
referred to in submitted
documentation;
(
d
)
a decision regarding accreditation; and
(
e
)
the issuing of an accreditation certificate if the application is
successful.
(2) The institution must be
accredited by the Council to offer a programme prior to the
commencement of such programme.
(3) The
process may be extended if the information and documentation required
at any stage during the accreditation process
is incomplete or if
there is a delay in the submission of such information.’
[23]
Reverting for a minute to the Circular of 23 November 2018, HASA
avers that its understanding
of the object of the Circular’s
pre-requisite for Letters of Support to be obtained from the HODs of
Departments, insofar
as it applies to this matter is, firstly, to
prevent congestion in the number of clinical training placements in
public health
establishments and, secondly, to ensure that the public
health care system is not burdened with an oversupply of health care
personnel
or that nurses would be trained but thereafter have no
placements.
[24]
During argument, Mr Mooki emphasized that HASA’s members’
application for accreditation
and its need for Letters of Support is
not at odds with the objects of the Circular, the regulations or the
Nursing Act, as
its members will absorb all of the nurses intended to
be trained. Mr Mooki further submitted that the Department will not
suffer
any financial prejudice in respect of any training as HASA
will ensure that all training is done at HASA’s expense.
[25]
HASA contends that the Department’s moratoria on the training
of nurses in different disciplines,
in addition to its decision of 16
May 2019 not to issue Letters of Support to private nursing education
institutions, have had
an obvious effect on the decline in the
availability of qualified nurses for placement in both the public and
private sector.
[26]
By virtue of the decision, the Department has maintained that it does
not wish to issue HASA
members with Letters of Support in so far as,
fundamentally, there is a surfeit of qualified enrolled nurses and
enrolled nursing
assistants in KwaZulu-Natal and that rather than
training new nurses, existing trained nurses should be employed by
HASA’s
members. At no stage, however, has the Department
provided HASA with particulars of the surfeit of existing qualified
nurses who
the Department contends should instead be employed by
HASA’s members.
HASA’s
engagement with the department after the decision of 16 May 2019
[27]
HASA contends that since the decision of the HOD on 16 May 2019, HASA
engaged in extended engagements
with the Department as chronicled by
Dr Bomela in the founding affidavit. Bearing in mind that one of the
issues to be resolved
in this application is HASA’s failure to
institute these proceedings without undue delay and within a period
of 180 days
of the administrative decision as required by
section
7(1)
of PAJA, it is therefore necessary, in my view, to have full
regard to the chronology provided by Dr Bomela of HASA’s
engagements
with the Department. This chronology appears in the
founding affidavit as follows:
‘
85.4
On 20 June 2019, Ms Vermaak, the Netcare Education Faculty Manager, a
co-representative with me of HASA during
these engagements with the
Department, requested advice from Dr Makhanya at a CPASSA (College
Principals and Academic Staff of
South Africa forum) meeting held on
13 and 14 June 2019 regarding the issuing of letters of support,
where she indicated that she
would take it up is it appears that
there is a miscommunication with relation to the Circular. Dr
Makhanya provided feedback a
week later from the meeting during which
she indicated that she had raised the matter with the Department at a
meeting and that
the Circular should not apply to PNEIs linked to
hospital groups. She informed us that feedback would follow in this
regard from
the Department. However, no feedback was received and we
made continuous follow-ups through HASA to which no feedback from the
Department was forthcoming.
85.5 On 8
August 2020, after it took some time and persistence on HASA’s
part, we had our first meeting
with the erstwhile HOD and Mr Bongani
Shezi.
85.6 On 29
August 2020, HASA held a follow-up meeting with the Department. The
minutes of this meeting appear
in annexure FA7.
85.7 On 19
September 2020, the Department’s requested documents in the
previous meeting, indicating
Netcare’s commitment to employ all
students and student numbers in relation to the KwaZulu-Natal campus,
was submitted to
the Department which documentation was signed by the
Netcare Human Resources Director of KwaZulu-Natal.
85.8 On 21
October 2019, HASA held a meeting where it appeared that there was
good collaboration and progress
between the Department and HASA.
During this meeting, the Department requested additional information
that HASA was requested to
add to its letter of commitment, which
HASA did and submitted to Mr Shezi on 23 October 2019.
85.9 At the
meeting, officials of the Department indicated that they would
prepare all the information and
present it to the HOD within the
following two weeks, for approval and feedback to HASA. However, no
feedback was ever received
and on HASA’s follow-up in early
December 2019, HASA was informed telephonically by Mr Shezi that due
to the appointment
of the new MEC and HOD for the Department, they
require a briefing from their provincial team and that the matter
would be discussed
at a later stage.
85.10 On 21 February 2020,
HASA sent a letter to the Department and escalated the matter to the
national department
by copying the Chief of Staff of the National
Department of Health in which HASA expressed its exasperation in
relation to the
Department’s failure or refusal to issue HASA
members with letters of support. Thereafter, I received a call from
Dr Annand
[sic] [Anban] Pillay (an official of the Department)
regarding the letter which HASA had sent to the Chief of Staff at the
national
department. Dr Pillay indicated that feedback would be given
by Department, but still no feedback was subsequently provided by the
Department.
85.11 On 23 April 2020, Ms
Vermaak followed up on HASA’s escalation of the matter to the
National Department requesting
the National Department of Health to
assist and intervene. Ms Vermaak spoke in this regard to Dr Kobie
Marais of the National Department.
85.12 Then on 31 July
2020, after HASA’s patient wait to receive the assistance and
intervention of the national
department, Dr Marais eventually
reverted to Ms Vermaak saying that HASA must contact the Department.
85.13 On 7 September 2020,
I addressed the letter which I have mentioned in paragraph 62 above
(FA8) to the HOD, to
which we have received no response to date.
85.14 For a period of ten
months from September 2020 to July 2021, we continued in our
painstaking engagements with
the Department and the other concerned
accreditation stakeholders in an effort to obtain the letters of
support, but none were
forthcoming.
85.15 On 19 July 2021,
HASA obtained a legal opinion from its attorneys of record, Werksman
Attorneys, on HASA’s
legal recourse options. The legal opinion
is not produced because it is privileged communication between
attorney-and-client.
85.16
Given HASA’s increasing frustration with the Department and
being left with no option but to seek recourse
through court action,
on 20 September 2021, counsel was briefed to advise on the merits of
the present application and on drafting
and settling the papers.
Thereafter, HASA members assisted by HASA’s attorneys, junior
and Senior Counsel drafted and settled
the papers and had to consult
and comment on the draft papers involving all of HASA’s members
inputs before the application
could be eventually launched thereafter
on 14 October 2021.’
[28]
On 7 September 2021, Dr Bomela addressed a letter (Annexure FA8) to
the HOD and to which he appended
a schedule of the chronology
referred to above as Annexure 1 dealing with HASA’s extended
engagement with the Department.
[29]
In the above letter, Dr Bomela reiterated the following under part B
of the letter which dealt
with the requirements communicated by the
Department during meetings:
‘
Hospital
Association of South Africa (“HASA”) has previously
engaged with the KZN DOH in 2019 as supported by the attached
list
outlining the sequence of events [Annexure 1]. In our collaborative
engagements, the KZN DOH communicated the following:
1.
No clinical placement will be granted to Private NEI’s in the
KZN public
health facilities. To this end Netcare Education [i.e. and
the other HASA PHEIs] has secured sufficient clinical placement with
the necessary Memoranda of Agreement in place in a variety of
suitable and credible clinical facilities that will meet the
programme
requirements.
2.
Nursing Education Institutions (“NEI”) must provide
confirmation
from the directors of the group that all students will
be employed by Netcare on successful completion of their education
and training.
Failure to employ qualifying student may impact on
granting further letters of support.
3.
Letters of support from KZN DOH will be issued annually.
4.
No objection from the KZN DoH for the private NEI’s offering
the Advanced
Diploma in Midwifery and Post Graduate programmes as
long as no clinical placement is required, and no public students may
be accepted
to study as private NEI’s.
The Private NEI’s are committed
to continue to comply with the requirements to secure and maintain
the approval of the KwaZulu
Natal Department of Health and continue
the collaborative and mutual beneficial relationship going forward
and so doing contribute
to the social fabric of the province.
HASA
requests an urgent meeting with KZN DoH to address these issues and
to attempt to find a mutually workable solution in the
interests of
the nursing community as a whole. HASA representatives will avail
themselves at the convenience of the KZN DoH and
in view of the time
lapse due to the Covid-19 risk adjusted strategies of South Africa we
propose a meeting in the next week in
order to address these issues
with the aim to resolve asap. Your attention to the matter will be
much appreciated.’
[My
emphasis.)
[30]
In an effort to avoid litigation and having regard to the long
history of prior engagements with
the Department as highlighted
above, the attorneys for HASA, Werksmans Attorneys, addressed a
further letter to the Department
as a final demand on 17 September
2021, the relevant portions of which read as follows:
‘
3.4
the Department has averred that there is a surfeit of qualified
enrolled nurses (EN) and enrolled
nursing assistants (ENA) (nurses)
in KwaZulu-Natal and rather than training new nurses, members of our
client should employ existing
trained nurses. This position
apparently aligns with the province’s obligations in terms of
paragraph 5(b) of the circular,
dealing with the application of
provincial human resources plans to the issuing of LoS, published by
the national Department of
Health as Circular 1 of 2018, dated 23
November 2018 (“the Circular”). However, and despite
requests, no evidence of
the surfeit of qualified nurses in
KwaZulu-Natal has been produced by the Department to date. In this
regard –
3.4.1 there have now
been no undergraduate or specialised nurses trained in KwaZulu-Natal
since 2019, thus chronically
compromising access to healthcare
services in the province both presently and into the near future;
3.4.2 with the onset
of the COVID-19 pandemic in early 2020 greater strain has been placed
on the local healthcare
system with the need to have additional
resources, including trained nurses in various disciplines, to
deliver the required healthcare
services;
3.4.3 the effects of
the COVID-19 pandemic have included nurses passing away and suffering
from burn-out and thus
unable to work thus further reducing the
number of qualified nurses available to our client’s members in
KwaZulu-Natal;
3.4.4 with the
introduction of the vaccinations, the need for vaccination centres
and services has drawn nurses
out of hospitals and into
pharmacies and sub-acute facilities thus placing further strain on
the number of nurses available
to our client’s members in the
private hospital sector in KwaZulu-Natal;
3.4.5 with the
vaccinations inevitably to be permitted to persons in younger age
groups and the expected further
waves of the COVID-19 pandemic, the
abovementioned strain will undoubtedly worsen as the demand for
vaccinations and nurses to
provide the vaccinations grows;
3.5
the Department has become unresponsive to our client’s requests
to advance the matter
and issue the necessary LoS [Letters of
Support];
3.6
all of the requisite information, for purposes of issuing the LoS,
has been supplied by
our client and its various members to your
offices – on numerous occasions;
3.7
our client has made the urgency of the provision of LoS clear in its
e-mail to your offices
of 30 August 2021:
“
HASA
members are very anxious to know about the training numbers as there
is still the [South African Nursing Council] SANC process
that must
take place after the issuing of the letters by the province, i.e. the
SANC have to take our applications through their
Education Committee
and then to the Council meeting for the final approval of the January
2022 intake and their process is set
to take place by October 2021.
Therefore, we are required to get the letters to the SANC as soon as
possible. This means this matter
is extremely urgent from HASA’s
viewpoint, hence HASA’s repeated enquiries about the progress.”
4.
In light of what is set out above, we advise that –
4.1
the need for the relevant LoS is obvious, more particular, to
facilitate the training of
nurses in KwaZulu-Natal. The training of
nurses is a national prerogative in circumstances where nurses are
required to ensure
proper access to healthcare services as
contemplated in section 27 of the Constitution of the Republic of
South Africa, 1996 (“the
Constitution”);
4.2
in so far as the provision of the LoS is an administrative function,
our client is entitled
to procedurally fair administrative action
pursuant to our client’s rights, and those of its members, in
terms of section
33 of the Constitution and the provisions of the
Promotion of Administrative Justice Act No. 3 of 2000
as well as
various pronouncements by the Constitutional Court;
4.3
the inordinate delays in this matter, which have resulted in the
inability of our client’s
members to train nurses in
KwaZulu-Natal for two years, are without cause or reason and have
substantially limited the availability
of qualified and trained
nurses, in various disciplines, throughout the province, which is an
untenable state of affairs with reference
to your constitutional
obligation to facilitate access to healthcare services and the
prevailing COVID-19 pandemic;
4.4
there is thus no basis or reason for any continued delay in issuing
the LoS – such
a continued delay is unreasonable and
irrational.
5.
Accordingly, we have been instructed to demand, as we hereby do, that
the LoS
be issued as soon as possible but by no later than 16:00 on
Monday, 27 September 2021, failing which our client shall have no
option
but to approach the relevant court for assistance.
6.
We await your urgent reply.’
[31]
Needless to say, no response was forthcoming from the Department. The
Department took no steps
to dispute the factual accuracy of the
contents of this letter nor did it provide any reason for its refusal
or failure to issue
the requisite Letters of Support.
[32]
HASA’s increasing frustration left it with no option but to try
and seek recourse through
court action. The present application was
accordingly launched as a matter of urgency on 20 September 2021.
What gave rise to the
urgency at that stage was the fact that the
Nursing Council’s next meeting at which the accreditation
applications for HASA’s
members’ nursing education
institutions in the Province for 2022 was scheduled to take place on
11 and 12 November 2021.
However, as it now transpires, such meetings
are held at least 3-4 times a year. This, of course, does not detract
from the fact
that the issue relating to the Letters of Support
remains a burning issue which has to be resolved before the Nursing
Council can
deal with issues of accreditation.
Department’s
opposition
[33]
The preliminary affidavit filed by the HOD does not take the matter
anywhere. The affidavit amounts
to nothing more than a diatribe of
complaints against HASA for creating urgency where none existed. Even
in preliminary form, it
does little to answer the fundamental
concerns that HASA raises regarding the Letters of Support. Apart
from quoting the relevant
portions of the applicable regulations
verbatim,
it does nothing else. The only point of substance raised by the
Department is the PAJA delay. As mentioned already, this is one
of
the two main issues to be resolved in the matter.
[34]
In a supplementary answering affidavit filed by the Department, the
HOD continues to assert that
there is a surfeit of nurses in the
province but once again, fails to put up any evidence in this regard.
It is on this basis that
the Department attempts to justify its
moratorium regarding the granting of the requisite Letters of Support
to HASA’s members.
[35]
In para 6.2 of the supplementary answering affidavit, the HOD accuses
HASA of creating ‘a
completely false perception’ in order
to mislead the court in relation to the process involving the issuing
of Letters of
Support. The ‘false perception’ that HASA
is said to have created is to the effect that (a) the first and
second respondents
(HOD and MEC) can simply issue Letters of Support
on a rubber-stamped basis without following the necessary processes
to ensure
compliance with the applicable laws and directives in
relation to the training of nurses; (b) that Letters of Support will
guarantee
the accreditation of the applicant’s members’
nursing training programs; and (c) that if the applicant is provided
with Letters of Support, the accreditation will be approved by the
third respondent (the Nursing Council) at the next sitting of
the
Council on 11 and 12 November 2021.
[36]
The Department thereafter goes on to deal with the objects of the
Nursing Act and
the various provisions that govern the accreditation
process. The Department contended that the only moratorium issued by
it was
that of 9 September 2016 but that this moratorium terminated
on 23 November 2018. Consequently, during 2019 the moratorium was no
longer in effect.
[37]
In paragraphs 12 and 13 of the supplementary affidavit, the
Department points to the fact that
it is constrained by a lack of
funds to accommodate nurses trained by both public and private NEIs.
It points out that members
of HASA and another organisation called
PHEPSA are the only two privately operated NEIs.
[38]
The Department contends that it did not only engaged with HASA
regarding the issue of training
and placement of nurses but that it
also engaged with PHEPSA. Arising from these engagements, the HOD
sought a report from one
Mr Themba Mntambo of the Department to
conduct an analysis from available information and to advise (a) on
what numbers should
be allocated to PNEIs; (b) how to split the
numbers per PNEI, and (c) a proposed contract. On receipt of the
report on 1 October
2021, a decision was taken to allocate 50
placements for Higher Certificate in Nursing and 50 placements for
the Diploma in Nursing.
The nett effect of this was that the PHEPSA
group will be allocated 100 placements and HASA 100 placements. This
information was
communicated to HASA and PHEPSA on 21 October 2021
and was accompanied by a copy of a draft Memorandum of Agreement
(MOA). PHEPSA
agreed with the allocation and signed the MOA. HASA on
the other hand, did not accept the allocation.
[39]
Both in its supplementary replying affidavit as well as in argument,
HASA asserted that the Department
was acting in bad faith. The
Department had known all along that HASA had satisfied the
requirements for 230 nurses. The Departments’
stance in
offering an allocation of 100 placements on 21 October 2021 was
nothing more than a knee-jerk reaction to the litigation
that was now
on the go. The Department had simply failed to address critical
issues raised by HASA of the looming crisis of the
shortage of nurses
in KwaZulu-Natal and the strain of an aging nursing population as
well as the ravaging impact of the Covid-19
pandemic. Additionally,
the financial constraints and lack of resources to train and place
nurses, as complained of by the Department,
did not have any bearing
on the matter as HASA had made it clear that it would not only train
such nurses but that it will also
absorb them into its structures.
Nursing
Council’s role in these proceedings
[40]
The Nursing Council was of no assistance in the matter. Being a
critical role player in the health
care system, it was disappointing
to note that it adopted a rather supine approach in the matter. It
could have, for instance,
provided the court with useful information
and relevant statistics of the number of nurses in the Province,
whether the need to
train more nurses was necessary, the effect of
the Covid-19 pandemic on nursing and the general state of health care
from a nursing
perspective, etc. It chose instead to set out the
various provisions that regulate the accreditation process.
The
PAJA delay
[41]
Admittedly, there has been a substantial delay on the part of HASA in
instituting these proceedings
since the communication of the decision
to it on 16 May 2019. Proceedings for judicial review under
section
7(1)
[6]
of PAJA must be
instituted without delay and before the expiry of 180 days from the
date of the administrative action sought to
be reviewed.
Section
9
,
[7]
however, empowers a court
to extend the prescribed period where the interests of justice so
require.
[42]
The SCA has held that whether the interests of justice require the
extension of the time-frame
for the institution of review proceedings
in terms of
section 9
of PAJA
‘
depends
on the facts and circumstances of each case: the party seeking it
must furnish a full and reasonable explanation for the
delay which
covers the entire duration thereof and relevant factors include the
nature of the relief sought, the extent and cause
of the delay, its
effect on the administration of justice and other litigants, the
importance of the issue to be raised in the
intended proceedings and
the prospects of success
.’
[8]
[43]
The factors to be considered in the enquiry and the particular weight
to give to each one, will
depend on the nature of the case.
[9]
In this regard, an assessment of what the interests of justice
require is case-specific and a wide range of considerations are
relevant to the enquiry.
[10]
[44]
The SCA (per Navsa JA) in
SANRAL
[11]
opined that since
‘
the
challenges
to the Board's decision and the decisions of the Transport Minister
in terms of s
27
of the Act
[12]
are
based on the principle of legality, it does not, for practical
purposes, matter whether condonation for the delay in launching
the
application is approached in terms of the provisions of PAJA or
otherwise
.’
The
learned judge went on to demonstrate in paras 79
*
and
80,
[13]
that ‘in both
instances, ultimately the decision whether to condone the delay is
based on whether the interests of justice
so require’.
[14]
[45]
Delay is not necessarily decisive because while ‘[f]inality is
a good thing . . . justice
is a better’.
[15]
[46]
The application of the delay rule involves a two-stage enquiry,
namely (a) whether there was
an unreasonable delay, and (b) and if
so, whether the delay should be condoned.
[16]
The first stage is a factual enquiry upon which a value judgment is
made in light of all the relevant circumstances. Thus, the
assessment
of delay and prospects of success, viewed with all other relevant
factors, are intertwined.
[17]
[47]
Applying the above principles to the present application, I consider
that the Department has
failed dismally to provide a direct answer to
HASA’s claims, both in relation to its application for Letters
of Support as
well as its failure to bring its application for review
within the prescribed time limit. The Department has not been able to
dispute
the fact that since the impugned decision, the parties were
involved in extended engagements in an effort to try and reach an
amicable
solution to the problem. Additionally, the Department has
not been able to deny HASA’s claims relating to the need to
train
more nurses, the aging nursing population in KwaZulu-Natal and
the impact of the Covid-19 pandemic on the health care system in
general and nursing in particular.
[48]
Instead of addressing the real issues raised by HASA, all of which I
may add are in the public
interest, the Department engaged in a
finger-pointing exercise that serves no purpose whatsoever. The
granting of Letters of Support
to HASA’s members will not in
any way cause any material prejudice, financial or otherwise, to the
Department. As HASA has
been at pains to point out, both in the
papers and in argument, that the relevant HASA members in need of
Letters of Support will
absorb all the nurses intended to be trained
and accordingly the accreditation applications of such members will
not in any way
affect the Department’s human resources plan,
nor would the nurses intended to trained be in need of the
Department’s
placements.
[49]
A disappointing aspect of the Department’s opposition is that
it seems to labour under
a belief that the Letters of Support are the
be all and end all of the accreditation process. It is clear from a
reading of the
regulatory framework and the Nursing Council’s
advisory affidavit that the process is an onerous and lengthy one,
one that
is really undertaken by the Nursing Council and not by the
Department. This being the case, I agree with Mr Mooki, that it does
not lie in the mouth of the Department to pontificate on the Nursing
Council’s role and the process to be followed before
it.
[50]
Whilst the Department sought to refute the suggestion that its
allocation of 100 students to
HASA’s members for the training
programme was nothing more than a knee-jerk reaction to these
proceedings, there is, in my
view, every indication that it was
indeed so for the following reasons:
(a)
First, it knew all along that the Letters of Support that were
applied for by HASA was 230
(Netcare 100, Joint Medical Holdings 30
and Life Healthcare 100).
(b)
Second, the 100 nursing students that the Department purported to
approve falls woefully
short of HASA’s members’
requirements.
(c)
Third, the reaction of the Department does not resolve the issue in
that all that
it is authorised by law to do is to offer the requisite
Letters of Support in order for HASA’s members’
applications
to be considered by the Nursing Council. As mentioned
already, after all, it is only the Nursing Council that is empowered
under
the regulations to approve and determine the numbers. In my
view, HASA has reacted correctly by rejecting what can only be
described
as an ‘unlawful bargain’ made in the face of
impending litigation.
(d)
Fourth, the Department has in my view, quite disingenuously put up as
evidence of its engagements
with HASA, minutes in relation to the
PHEPSA group. It fails to mention that the only real response it made
to HASA was the aforesaid
allocation of 100 students.
(e)
Fifth, it is deeply concerning that instead of owning up to its
mistakes and taking responsibility
for its failure to address the
critical issues raised by HASA over such a long period, the
Department chooses to sustain this rather
reprehensible conduct by
pegging its case on technical defences that have no merit whatsoever.
[51]
I consider the issues raised by HASA in these proceedings to be
matters of great public importance.
I am satisfied on the evidence
produced by HASA that it was involved in extensive engagements with
the Department over a long period
of time. HASA’s assertions
that these engagements were embarked upon by it in order to find an
amicable solution to the problem
could not be disputed by the
Department. Furthermore, HASA has accounted fully for the delay in
bringing these proceedings. In
all the circumstances, I am of the
view that HASA has conducted itself most appropriately throughout.
Regrettably, the same cannot
be said for the HOD and the Department.
Accordingly, I am satisfied that a proper case for condonation has
been made and it is
in the public interest that such condonation be
granted.
Was
the Department’s conduct unreasonable and irrational?
[52]
I consider that the Department must know that without the Letters of
Support, HASA members will
just not be able to train nurses in
various disciplines, and where there are critical shortages in such
disciplines, HASA members
will not be able to provide access to the
health care services in those identified disciplines. By failing to
accede to HASA’s
ongoing requests for such Letters of Support,
it is clear on the papers that the Department is behaving
unreasonably. It is also
clear that the Department is limiting the
public’s right to access to health care services in the
Province in direct contravention
of the provisions of section 27
[18]
of the Constitution.
[53]
The Department is, after all, a government institution and public
functionary. As such, it is
subject to the applicable provisions of
legality and administrative law. The law requires such administrators
to behave in a manner
that is reasonable, open, fair, transparent and
honest. These principles are underscored by the provisions of section
33
[19]
of the Constitution and
the relevant provisions of PAJA.
[54]
It is most concerning that the Department’s decision, in
failing to provide the requisite
Letters of Support, was made without
any supporting evidence. This exercise of public power or the
performance of a function authorised
by the empowering provisions set
out in the regulatory framework above, is, in my view, so
unreasonable that no reasonable person
could have so exercised the
power or performed the function in terms of section 6(2)
(h)
[20]
of PAJA and/or in terms of the principle of legality.
[55]
It is also obvious that there is no connection and basis for
justifying the conclusion reached
by the Department for its refusal
having regard to the material available to it and its conclusion
reached, as set out in terms
of section 6(2)
(f)
[21]
of PAJA and/or the principle of legality.
Should
condonation be granted?
Appropriate
remedy
[56]
The power of a court on review to substitute or vary administrative
action or correct a defect
arising from such action, depends upon a
determination that a case is ‘exceptional’ in terms of
section 8(1)
(c)
(ii)
(aa)
[22]
of PAJA. As explained by the SCA in
Gauteng
Gambling Board v Silverstar Development
:
[23]
‘
Since
the normal rule of common law is that an administrative organ on
which a power is conferred is the appropriate entity
to exercise that
power, a case is exceptional when, upon a proper consideration of all
the relevant facts, a court is persuaded
that a decision to exercise
a power should not be left to the designated functionary. How that
conclusion is to be reached is not
statutorily ordained and will
depend on established principles informed by the constitutional
imperative that administrative
action must be lawful, reasonable and
procedurally fair
.’
[57]
Hefer AP, in
Commissioner,
Competition Commission v General Council
of
the Bar of South Africa and others,
[24]
said the following:
‘
[14] It is
not necessary to deal at length with a reviewing Court's power to
substitute its own decision for that of an administrative
authority.
Suffice it to say that the remark in
Johannesburg
City Council v Administrator, Transvaal, and Another
that 'the Court is slow to assume a discretion which has by statute
been entrusted to another tribunal or functionary' does not
tell the
whole story. For, in order to give full effect to the right which
everyone has to lawful, reasonable and procedurally
fair
administrative action, considerations of fairness also enter the
picture. There will accordingly be no remittal to the administrative
authority in cases where such a step will operate procedurally
unfairly to both parties. As Holmes AJA observed in
Livestock
and Meat Industries Control Board v Garda
“
.
. . the Court has a discretion, to be exercised judicially upon a
consideration of the facts of each case, and . . . although
the
matter will be sent back if there is no reason for not doing so, in
essence it is a question of fairness to both sides”.
[15] I do not accept a submission for
the respondents to the effect that the Court
a quo
was
in as good a position as the Commission to grant or refuse exemption
and that, for this reason alone, the matter was rightly
not remitted.
Admittedly, Baxter lists a case where the Court is in as good a
position to make the decision as the administrator
among those in
which it will be justified in correcting the decision by substituting
its own. However, the author also says:
“
The mere
fact that a court considers itself as qualified to take the decision
as the administrator does not of itself justify usurping
that
administrator's powers . . .; sometimes, however, fairness to the
applicant may demand that the Court should take such a view.”'
(Footnotes omitted.)
[58]
It is so that an administrative functionary that is vested by statute
with the power to consider
and approve or reject an application is
generally best equipped by virtue of its composition, by experience
and by its access to
sources of relevant information and expertise to
make the right decision. The court typically has none of these
advantages and
is required to recognise its own limitations.
[25]
It is for this reason why remittal is almost always the prudent and
proper course.
[26]
This is not
to say, however, that in every case a remittal is the only option.
Section 8(1)
(c)
(ii)
(aa)
of PAJA allows a court in exceptional circumstances to make a
substitution at its discretion. Furthermore, ‘[t]hat nothing
is
to be gained by remittal is also relevant to the issue of
fairness’.
[27]
[59]
Based on its reasons to increase the nursing population in the
Province and the failure on the
part of the HOD to address the
concerns outlined herein, HASA contends for an order substituting the
decision with an order directing
the HOD to issue the Letters of
Support to HASA’s members within 10 days in terms of section
8(1)
(c)
(ii)
of PAJA on the basis that the issuing of such letters does not
require a polycentric or technical proficiency that is beyond
the
remit of this court. HASA has demonstrated, quite adequately in my
view, that there is a need for nurses in private health
care
institutions in KwaZulu-Natal. Such an assessment is based solely on
logic and demographics and requires no scientific or
other expertise.
In the circumstances I see no reason for a remittal.
[60]
The unduly long delay on the part of the HOD to make the necessary
allocation, persuades me that
a substitution is required. I
accordingly conclude that this is an exceptional case, one that falls
squarely in the public interest.
An order in terms of prayers 3 and 4
is thus justified. I have renumbered these paragraphs as well as
effected slight amendments
thereto in the order made hereunder.
Costs
[61]
I see no reason why costs should not follow the result. Furthermore,
I consider that the issues
raised by HASA are important and complex
enough to warrant the employment of two counsel.
Order
[62]
In the result, I make the following order:
1.
The applicant is granted, in the interest of justice, an extension of
time and condonation,
in terms of section 9 of the Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA’) for its
failure to institute
proceedings within the period prescribed in
section 7 of PAJA.
2.
The first respondent’s failure and/or refusal to issue Letters
of Support
to the applicant’s members is hereby reviewed and
set aside.
3.
The first respondent’s failure and/or refusal to issue Letters
of Support
to the applicant’s members is substituted with an
order directing the first respondent to, within ten (10) days from
service
of this order, issue Letters of Support to the applicant’s
members in terms of the Regulations Relating to the Accreditation
of
Institutions as Nursing Education Institutions (GN R173,
GG
36234, 8 March 2013) read with the National Department of Health
Circular 1 of 2018 issued on 23 November 2018.
4.
The first and second respondents are ordered to pay the costs of this
application,
such costs to include the costs of two (2) counsel.
_________________
SEEGOBIN
J
Appearances
Counsel
for the applicant
: Mr O Mooki SC
Assisted
by
: Mr SL Mohapi
Instructed
by
: Werksmans Attorneys
C/O
:
Shepstone & Wylie Attorneys
Ref.
: Mr N Kirby/Ms Z Mthiyane
Counsel
for the 1
st
and 2
nd
respondents :
Ms N Bhagwandeen
Instructed
by
: Cassim Rahman Attorneys
C/O
:
The State Attorney (KZN)
Ref.
:
Mr N
Ramlall/vp/24/00175/2021/H/P23
Counsel
for the 3
rd
respondent
: Ms T
Antulay
Instructed
by
: Maponya Attorneys
C/O
:
Viv Green Attorneys
Ref.
:
Mrs T Antulay
[1]
Section 3
(d)
of the
Nursing Act.
[2
]
Sections 6(2)
(g)
and
6
(3)
(a)
of PAJA.
[3]
Section 6(2)
(e)
of PAJA.
[4]
Regulations
relating to the accreditation of institutions as Nursing Education
Institutions, GN
R173,
GG
36234, 8 March 2013.
[5]
https://www.news24.com/health24/news/public-health/ageing-nurses-a-crisis-on-the-horizon-20211007.
[6]
Section 7(1)
provides that:
‘
(1) Any
proceedings for judicial review in terms of
section 6
(1) must
be instituted without unreasonable delay and not later than 180 days
after the date—
(
a
)
subject to subsection
(2) (
c
), on which any proceedings instituted in terms of
internal remedies as contemplated in subsection (2) (
a
) have
been concluded; or
(
b
)
where no such remedies exist,
on which the person concerned was informed of the administrative
action, became aware of the action and the reasons for it or might
reasonably have been expected to have become aware of the
action and
the reasons.’
[7]
Section 9
provides
as follows:
‘
9.
Variation of time.— (1) The period of—
(a)
90
days referred to in
section 5
may be reduced; or
(b)
90
days or 180 days referred to in
sections 5
and
7
may be extended for
a fixed period,
by
agreement between the parties or, failing such agreement, by a court
or tribunal on application by the person or administrator
concerned.
(2)
The court or tribunal may grant an application in terms of
subsection (1) where the interests of justice so require.’
[8]
Camps Bay
Ratepayers’ and Residents’ Association and another v
Harrison and another
[2010]
ZASCA 3
;
[2010] 2 All SA 519
(SCA) para 54. See also
Aurecon
South Africa (Pty) Ltd v City of Cape Town
[2015]
ZASCA 209
;
2016
(2) SA 199
(SCA)
para 17.
[9]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and others
[2009] ZASCA 85
;
2010
(1) SA 333
(SCA) para 82;
City
of Cape Town v South African National Roads Agency Ltd and others
[2015] ZAWCHC 135
;
2015 (6) SA 535
(WCC) para 21. In para 22, the
court went on to observe that ‘the
broad
nature of the exercise enjoins the court to have regard, amongst
other matters, to what the review application is about,
its
prospects of success and the broader consequences, in the context of
the delay, of it being upheld or turned away’
.
[10]
City of Cape
Town v South African National Roads Agency Ltd and others
[2015]
ZAWCHC 135
;
2015 (6) SA 535
(WCC) paras 25 and 30.
[11]
South African
National Roads Agency Ltd v City of Cape Town
[2016] ZASCA 122
;
2017 (1) SA 468
(SCA) para 78.
[12]
The South African
National Roads Agency Limited and National Roads Act 7 of 1998
.
[13]
The judge held as
follows:
‘
[79]
Before the advent of PAJA, it was recognised by our courts that
an undue and unreasonable delay on the part of an aggrieved
party in initiating review proceedings might cause prejudice to
other parties to the proceedings and that, therefore, in such
cases
the court should have the power to refuse to entertain the review.
An associated rationale for what became known as the
'delay rule'
was the public-interest element in the finality of decisions by
repositories of state power, whatever their nature.
In this
regard see
Harnaker
v Minister of the Interior
1965
(1) SA 372
(C) at 376H – 377D and 380;
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13
(A) at 41D – F; and
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2010
(1) SA 333
(SCA) ([2009] ZASCA 85) (
Oudekraal
2
)
para 33. This court in
Wolgroeiers
(at
39B – D) held that in the event of a complaint that there was
an unreasonable delay in initiating review
proceedings, the
following had to be decided:
(a)
whether
an unreasonable time had passed and;
(b)
if
so, whether the unreasonable delay ought to be condoned. It held, in
relation to the last-mentioned enquiry that a court
exercises a
judicial discretion with regard to all the relevant circumstances.
At common law this rule applied also in relation
to what we now
describe as challenges based on the principle of legality.
[80] In
Tasima (Pty) Ltd v
Department of Transport
[2016] 1 All SA 465
(SCA) ([2015]
ZASCA 200) paras 29 – 30, this court observed that in
considering whether to extend the 180-day period in
terms of
s 9
,
a court would be guided by what the interests of justice
dictate. In order to determine that question, regard should be
had
to all the facts and circumstances. 67 This equates with
how the judicial discretion on whether to condone a delay
was
exercised before the advent of PAJA. There is no maximum period
provided for in PAJA and the cases in which the 180-day period
was
extended are diverse in relation to the period of delay. 68
Simply put, whether one is considering condoning
a delay either
under the provisions of PAJA or beyond it, the same determining
criterion applies, namely, the interests
of justice. Viewed
thus, a definitive classification of the nature of the impugned
decisions is not strictly necessary, particularly
if regard is had
to the challenge essentially being one of legality.’
[14]
South African
National Roads Agency Ltd v City of Cape Town
[2016] ZASCA 122
;
2017 (1) SA 468
(SCA)
para
78.
[15]
Ras Behari Lal
and others v the King Emperor
[1993] All ER Rep 723
at
726C-D, quoted with approval in
Oudekraal
Estates (Pty) Ltd v City of Cape Town and others
[2009]
ZASCA 85
;
2010
(1) SA 333
(SCA) para 80.
[16]
Associated
Institutions Pension Fund and others v Van Zyl and others
2005 (2) SA 302
(SCA) para 47. See also
Gqwetha
v Transkei Development Corporation Ltd and others
[2006] 3 All SA
245 (SCA).
[17]
Aurecon
South Africa
(Pty) Ltd v City of Cape Town
[2015]
ZASCA 209
;
2016
(2) SA 199
para
17.
[18]
Section 27
provides that:
‘
27. Health
care, food, water and social security.
—
(1) Everyone
has the right to have access to—
(
a
)
health care services, including
reproductive health care;
(
b
)
sufficient food and water; and
(
c
)
social security, including, if
they are unable to support themselves and their dependants,
appropriate social assistance.
(2) The
state must take reasonable legislative and other measures, within
its available resources, to achieve the progressive
realisation of
each of these rights.
(3) No
one may be refused emergency medical treatment.’
[19]
Section
33
provides as follows:
‘
33. Just
administrative action.—(1) Everyone has the right
to administrative action that is lawful, reasonable
and procedurally
fair.
(2) Everyone
whose rights have been adversely affected by administrative action
has the right to be given written reasons.
(3) National
legislation must be enacted to give effect to these rights, and
must—
(
a
)
provide for the review of
administrative action by a court or, where appropriate, an
independent and impartial tribunal;
(
b
)
impose a duty on the state to give
effect to the rights in subsections (1) and (2);
and
(
c
)
promote an efficient
administration.’
[20]
This section
provides that:
‘
(2) A
court or tribunal has the power to judicially review an
administrative action if—
.
. .
(
h
)
the exercise of the power or the performance of the function
authorised by the empowering
provision, in pursuance of which the
administrative action was purportedly taken, is so unreasonable that
no reasonable person
could have so exercised the power or performed
the function.’
[21]
This section
provides as follows:
‘
(2) A
court or tribunal has the power to judicially review an
administrative action if—
.
. .
(
f
)
the action itself—
(i)
contravenes a law or is not authorised by the empowering provision;
or
(ii)
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.’
[22]
The section
provides that:
‘
(1) The
court or tribunal, in proceedings for judicial review in terms
of
section 6
(1), may grant any order that is just and
equitable, including orders—
.
. .
(
c
)
setting aside the
administrative action and—
.
. .
(ii)
in exceptional cases—
(
aa
)
substituting or varying the administrative action or correcting a
defect resulting from the administrative action.’
[23]
Gauteng
Gambling Board v Silverstar Development
Ltd
and others
2005 (4) SA 67
(SCA) para 28.
[24]
Commissioner,
Competition Commission v General Council
of
the Bar of South Africa and others
2002 (6) SA 606
(SCA) paras 14-15.
[25]
Minister of
Environmental Affairs and Tourism and others v Phambili Fisheries
(Pty) Ltd; Minister of Environmental Affairs and
Tourism and others
v Bato Star Fishing (Pty) Ltd
2003
(6) SA 407
SCA paras 47–50.
[26]
Trencon
Construction (Pty) Limited v Industrial Development Corporation of
South Africa Limited and another
[2015] ZACC 22
;
2015 (5) SA 245
(CC);
2015 (10) BCLR 1199
(CC)
para 42.
[27]
Gauteng
Gambling Board v Silverstar Development
Ltd
and others
2005 (4) SA 67
(SCA) para 40.