Summary of Judgment

1. Introduction

The proceedings concerned an application for leave to appeal brought by the South African Nursing Council (first respondent) and the Minister of Health (second respondent) against a judgment previously delivered on 24 June 2022. Alongside opposing the leave to appeal, Khanyisa Nursing School (Pty) Ltd (the applicant in the main matter) brought a further application under section 18(3) of the Superior Courts Act 10 of 2013 seeking an order that the June 2022 orders operate and be implemented pending the outcome of the appeal.

The procedural history, as reflected in this judgment, was that the court had granted substantive relief on 24 June 2022 (in the main matter under case number 28965/22) relating to the applicant’s ability to commence certain nursing education programmes and related regulatory consequences. After that judgment, the respondents delivered a “detailed notice” of application for leave to appeal setting out grounds of appeal, and the matter returned to court for determination of both leave to appeal and whether the June order should be executed despite the appeal process.

The general subject-matter of the dispute arose from regulatory decisions affecting the applicant’s accreditation and commencement of nursing programmes, and the practical consequences for enrolled students, staff, and the respondents’ statutory regulatory role. In this judgment, the court focused narrowly on the statutory tests governing leave to appeal and the exceptional execution of orders pending appeal under section 18(3).

2. Material Facts

Following the order granted on 24 June 2022, the respondents sought leave to appeal to the Supreme Court of Appeal, relying on the statutory threshold for leave as contained in section 17(1)(a)(i) of the Superior Courts Act 10 of 2013.

In the application under section 18(3), the applicant relied on circumstances arising from the timing and practical implementation of the June order. The applicant alleged that the main application had been brought urgently and was premised on the need to commence with accredited programmes on or before 4 July 2022. It further alleged that, on 25 June 2022, it informed students of the order and permitted them to commence registration for classes starting on 4 July 2022.

The applicant alleged that, as a consequence of steps taken after the June order, 210 students had registered and enrolled for the 2022/2023 academic year at the relevant sub-campuses. It contended that suspension of the June order would deprive these students of the opportunity to further their education and advance their careers, with a resulting detrimental effect on hospitals (by reducing the number of nursing staff who might alleviate strain on the healthcare system).

The applicant also alleged employment-related consequences, stating that it employed approximately 13 staff members at four sub-campuses and that, if it were not permitted to proceed with the academic programmes, these employees would have to be retrenched because the applicant could not afford their salaries.

In opposing the section 18(3) application, the respondents contended that the alleged exceptional circumstances were superficial and vague, that there was nothing uncommon or rare about the application, and that the applicant’s allegations of irreparable harm were not supported by the facts. They further contended that it would instead be the Nursing Council that would suffer irreparable harm because it would be prevented from performing its statutory duties. The court expressly rejected the contention that the Nursing Council would suffer irreparable harm on this basis, on the evidence and argument presented.

3. Legal Issues

The first legal issue was whether the respondents had met the statutory test for leave to appeal under sections 16 and 17 of the Superior Courts Act 10 of 2013, specifically whether there was a reasonable prospect that another court would come to a different decision (as framed by section 17 and the interpretive emphasis placed on the word “would”).

The second legal issue was whether the applicant had satisfied the requirements for relief under section 18(3) of the Superior Courts Act 10 of 2013, namely whether there were exceptional circumstances justifying immediate operation and implementation of the June order pending appeal, and whether the applicant had proved on a balance of probabilities that it would suffer irreparable harm if the order did not operate, while the respondents would not suffer irreparable harm if it did operate.

These issues largely concerned the application of statutory standards to the facts, involving both evaluative judgment (particularly in assessing “exceptional circumstances” and “irreparable harm”) and the assessment of prospects of success for purposes of leave to appeal and the discretionary inclination to grant section 18(3) relief.

4. Court’s Reasoning

On leave to appeal, the court identified that applications are governed by sections 16 and 17 of the Superior Courts Act 10 of 2013. It recorded that the respondents relied on section 17(1)(a)(i), which requires that the judge be of the opinion that the appeal would have a reasonable prospect of success. The court emphasised that the statutory language gives force to a test framed in terms of whether another court would come to a different conclusion, rather than merely whether it might.

In addressing how the test should be understood, the court referred to the reasoning in Mont Chevaux Trust v Goosen & 18 others 2014 JDR 2325, noting the view (expressed there obiter) that the wording of section 17 raised the threshold for granting leave to appeal. Against that framework, the court considered the grounds advanced by the respondents in their notice and the oral submissions by counsel for both sides.

Although the applicant’s counsel argued that there were no reasonable prospects of success and that the June 2022 final relief had been correctly granted (including findings in the main judgment on matters such as exemption from exhausting internal remedies and the review and setting aside of a decision dated 26 March 2022 affecting accreditation timing), the court ultimately concluded that there was a reasonable prospect that another court would differ with its earlier decision. On that basis, leave to appeal was granted and the costs of the leave application were directed to be costs in the appeal.

Turning to the section 18(3) application, the court set out the statutory starting point in section 18(1), namely that execution of a decision that is the subject of leave to appeal or an appeal is generally suspended, unless a court orders otherwise under exceptional circumstances. The court then highlighted that section 18(3) imposes a higher threshold, requiring proof on a balance of probabilities of both (a) exceptional circumstances and (b) irreparable harm to the applicant if execution is not ordered, coupled with the absence of irreparable harm to the respondent if execution is ordered.

The court noted that exceptional circumstances cannot be exhaustively defined and must be assessed case-by-case. It also treated the prospects of success in the pending appeal as a relevant consideration, observing that where prospects are doubtful a court would be less inclined to grant section 18(3) relief. Notwithstanding the grant of leave to appeal, the court proceeded to evaluate the claimed prejudice arising from suspension of the June order.

Applying these principles, the court accepted the applicant’s allegations as constituting exceptional circumstances. Central to this finding was the practical position that, after the June order, the applicant had enrolled 210 students and undertaken what the court described as a substantial administrative process to prepare them to commence training. The court reasoned that undoing these steps would be highly prejudicial to the students, the applicant, and its staff. It considered that this prejudice, together with the employment consequences for the educators and their families, amounted to irreparable harm if the order did not operate pending appeal.

By contrast, the court concluded that implementation of the order pending appeal would not cause irreparable harm to the first respondent if the applicant commenced mid-year. It considered that there was insufficient evidence of financial loss to the respondents if the order were not suspended and, in any event, stated that the alleged harm to the respondents could not outweigh the applicant’s irreparable harm in the circumstances presented.

On costs for the section 18(3) application, the court applied the general principle that costs follow the result. Although the respondents’ counsel submitted that no costs order was necessary, the court held there was no reason to depart from the usual rule where the respondents had opposed the application.

5. Outcome and Relief

The court granted the first and second respondents leave to appeal the judgment of 24 June 2022 to the Supreme Court of Appeal. It ordered that the costs of the application for leave to appeal would be costs in the appeal.

The court further ordered, under section 18(3) of the Superior Courts Act 10 of 2013, that the orders granted on 24 June 2022 in case number 28965/22 would operate and be implemented with immediate effect pending the outcome of the appeal instituted by the respondents.

The first and second respondents were ordered to pay the applicant’s costs of the section 18(3) application, jointly and severally, the one paying the other to be absolved.

Cases Cited

Mont Chevaux Trust v Goosen & 18 others 2014 JDR 2325

Legislation Cited

Superior Courts Act 10 of 2013 (as amended), sections 16, 17, 18(1), 18(3)

Nursing Act 33 of 2005

Regulation 11 of R.173 (as referenced in the judgment)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the respondents established that there was a reasonable prospect that another court would come to a different conclusion from the court’s judgment of 24 June 2022, and therefore granted leave to appeal to the Supreme Court of Appeal.

The court further held that the applicant demonstrated exceptional circumstances and proved irreparable harm if the June 2022 order were suspended, while the respondents did not establish corresponding irreparable harm if the order were implemented. On that basis, the court directed that the June 2022 orders would operate and be implemented immediately pending appeal, and it granted the applicant its costs in the section 18(3) application.

LEGAL PRINCIPLES

The judgment applied the statutory test for leave to appeal in section 17(1)(a)(i) of the Superior Courts Act 10 of 2013, requiring satisfaction that an appeal would have a reasonable prospect of success, understood as a reasonable prospect that another court would reach a different decision. The judgment treated the interpretation that section 17 raises the threshold for leave to appeal as a relevant contextual consideration, with reference to Mont Chevaux Trust v Goosen & 18 others 2014 JDR 2325.

The judgment applied section 18(1) as establishing a default position that execution of an order is suspended pending leave to appeal or appeal, unless exceptional circumstances justify departure from that default.

The judgment applied section 18(3) as requiring an applicant to prove, on a balance of probabilities, both exceptional circumstances and the dual requirement of irreparable harm: irreparable harm to the applicant if execution is not permitted, and absence of irreparable harm to the respondent if execution is permitted. The judgment further treated prospects of success on appeal as a relevant consideration in deciding whether to grant section 18(3) relief, while assessing exceptional circumstances and irreparable harm on the particular facts presented.

On costs, the judgment applied the general principle that costs follow the result, and held there was no basis to depart from this principle where the section 18(3) application was opposed and the applicant was successful.