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[2021] ZAGPPHC 404
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Kholina v Health Professions Councils of South Africa and Others (8523/21) [2021] ZAGPPHC 404 (18 June 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
PRETORIA
DIVISION
HELD
VIRTUALLY
CASE
NO: 8523/21
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
KSEN
I
A
N
I
CKOLAEVNA
KHOLINA
APPLICANT
And
HEALTH
PROFESSIONS COUNCIL OF FIRST
RESPONDENT
SOUTH
AFRICA
M
I
N
I
STER
OF
HEALTH
SECOND
RESPONDENT
J
U
D
G M
E
N
T
Delivered:
This judgment was handed down electronically by circulation to the
parties· representatives by E-mail. The date
and time for hand
- down is deemed to be on 10h00 on 18 June 2021
MALI
J
[1]
This unopposed application for review of the decision of the first
respondent concerns the applicant; a then baby girl born
on 30 April
1991 in the Soviet Union now known as Russian Federation ("Russia").
Three years later the toddler's family
relocated to a new and
exciting Republic of South Africa ("SA”). In the land of
the Rainbow Nation as SA is sometimes
informally referred to the
child grew, embarked on her early education. She matriculated in 2009
and at the time her career choice
had never been so assured ; as she
was raised in a family of medical doctors. She did not imagine any
other profession but for
medicine in particular dental studies.
[2]
Shortly after passing grade 12 or matriculating she and some of her
family members including her mother; left the South African
shores
for Russia. Amongst other reasons; in order for her to study
dentistry with the aim of becoming a Dental Practitioner. Her
two
brothers were left in South Africa. Following a yearlong preparatory
course including Russian language at the People's Friendship
University
(
"University”)
she commenced with
the dentistry studies.
[3]
By July 2016, she had successfully completed all her studies and was
awarded a Specialist Degree Diploma of Doctor of Dental
Medicine. She
was also awarded with a Russian Federation Specialist Accreditation
Certificate
("Accreditation”
)
.
She
is fully and completely accredited to carry out medical activities in
respect of the dentistry in the territory of Russia in
accordance
with the accreditation procedure for the Speciality of General
Dentistry.
[4]
She came back to Mzansi (Nguni translation for South); eager and
enthusiastic to ply her trade. This is after her mother had
sadly
passed away in 2015. It is in Mzansi where she came back to join her
brothers, that her career dreams get deferred. In the
centre of the
young Dentist's application is the Health Professions Council of
South Africa .
(
“
HPCSA
”)
.
HPCSA is a juristic body established in terms of section 2 of the
Health Professions Act, 56 of 1974
(
"the
Act”).
[5]
Section 3 of the Act makes provision for the objects and functions of
the council amongst others as follows:
(a)
to co-ordinate the activities of the
professional
boards established in terms of this Act and to act as an advisory and
communicatory body for
such
professional
boards;
(b)
to promote and to regulate interprofessional (sic) liaison between
health professions in the interest of the public; [Para.
(b)
substituted by s. 3 of Act 2912007] (c) to determine strategic policy
in accordance with national health policy as determined
..."
[6]
The Minister of Health is cited in his capacity as the Minister with
National Executive Authority for the administration of
the Act.
REVIEW
[7]
The applicant seeks an order to in the following terms:
"1.1.
to review the decision of the first respondent for failure to have
made any decision on the Applicant's application to
be exempted from
Part Ill of the requisite examination for Foreign Qualified Medical
Practitioners in accordance with paragraph
1.2, Part Ill of the
Health Professions Council.
1.2.
To furnish the Applicant with all necessary information to facilitate
the Applicant's Supervised Practice for a period of 12
(twelve)
months, in terms of paragraph 1.3 of the Guidelines
2.
Declaring that the Applicant be exempted from Part Ill of the
requisite examination for Foreign Qualified Medical Practitioners
in
accordance with paragraph 1.2, Part Ill of the Guidelines;
3.
Compelling the First Respondent to furnish the Applicant,
within a period of no more than 30 (thirty) days from date of
grant
of this Order, with all necessary information to facilitate the
Applicant's Supervised Practice for a period of 12 (twelve)
months,
in terms of paragraph 1.3 of the Guidelines;
4.
In the
alternative
to 2 and 3 above, directing the
First Respondent to set a date for the undertaking of Part Ill of the
requisite examination for
Foreign Qualified Medical Practitioners,
within 30 (thirty) days of this Order being granted;
5.
Costs
of
this
a
pplication;
6
.Further
and/
or
a
lternative
relief."
[8]
The law concerning the review of decisions is set out in the
Promotion of Administration of Justice Act 3 of 2000 (PAJA). An
action will fall to be reviewable under PAJA if it is an
administrative action. Section 1 of PAJA defines an administrative
action
as
"......any decision taken or
any failure to
take
a
decision by
-
(a)
An organ of state, when
(i)
exercising
a
power
in terms of the Constitution
or a provincial constitution;
or
(ii)
exercising
a
public
power
or
performing
a
public
function
in
terms of any legislation; or
(b)
A natural
or
juristic
person
other than an organ of state when exercising
a
public
power
or performing
a public
function
in terms of an empowering provision,
which adversely
affects
the rights
of any person and which has
a
direct, external
legal effect '.
[9]
For an action to qualify as an administrative action and
reviewable under PAJA it must meet three requisites, namely,
action
taken by an organ of state exercising power, the action must
adversely affect the rights of another person, and must have
a direct
and external legal effect.
[10]
Furthermore, section 6 (2) (g) of the Promotion of Administration of
Justice Act 3 of 2000 (PAJA), provides that failure consider
and to
take a decision is susceptible to review.
[11]
According to the averments in the applicant's founding affidavit her
qualification as obtained from the University has been
accepted by
the first respondent as an accredited institution. The process of
accreditation as detailed in the founding affidavit
is not in
dispute.
[12]
The applicant, amongst others had annexed the following documentation
to the founding affidavit;
12.1
The Certificate pertaining to the Specialist Degree Diploma and the
translation thereof, marked "KK2"
12.2
The Specialist Degree Diploma Transcript and the translation thereof,
marked "KK3"
12.3
The Certificate of Translation together with the duly translated
Russian Federation Specialist Accreditation Certificate, marked
"KK4".
[13]
The chronicles of the applicant's pursuit commenced ruing January
2017. She submitted all the relevant documents and information
to the
first respondent for the purpose of registering as a Dental
Practitioner, so that she may practice as such in South Africa.
On 24
April 2018 the first respondent after a period of approximately 1
(one) year and 3 (three) months sent applicant correspondence
accepting her application. It is apposite to refer to some of the
contents of the correspondence as follows:
"We
refer to your application for registration and wish to advise that it
was considered by the Education, Training and Registration
Committee
(Dental) on 11 April 2018.
The
Committee resolved that your application for registration in the
category of Public Service (Dental Practitioner) be approved
and that
you could sit the Board Examination.
Detailed
information of the Board examination, e.g. date, venue, time,
etc. will
be communicated to
you
in due course.
The
format of the
examination will
be:
a.
Part 1:
Ethics/Theory examination (multiple choice
questions)
b.
Part 2: Clinical Examination
c.
Part 3: Practical
……………………………………………”
[14]
On 16 May 2018 , the applicant received correspondence from the first
respondent's officer, Ms Wood that she would be advised
as to when
the examination fee was due once the first respondent received the
date for the examination. On 6 June 2018, Ms Wood
further
communicated that she had not received confirmation from the
University regarding the date for the examination. On 7 June
2018,
again through Ms Wood the applicant was informed that the first
respondent was busy with negotiations with the University
of the
Witwatersrand to host the 2018 examination. On 25 June 2018, Ms Wood
sent two letters to the applicant the first, that the
examination
would be held in Johannesburg. The second correspondence indicating
that the examination may be held between August
and September 2018.
[15]
On 20 July Ms Wood writes to the applicant again, stating that there
was going to be a meeting in the beginning of August 018
and that she
may have dates for the examination confirmed. On 23 August 2018, Ms
Wood communicated that the examination would take
place during the
last quarter of 2018 or first quarter of 2019. From 23 August 2018 to
7 March 2019 a flow of correspondence from
Ms Woods continued without
any confirmation of dates for the examination as the first respondent
was waiting for details from the
University.
[16]
Eventually on 8 April 2019 the applicant was informed by the
respondent that various parts of the Examination had been scheduled
to take place on 31 May 2019, 1 June 2019, and 13 and 14 June 2019
respectively. Finally, on 31 May 2019, and 1 June 2019 the applicant
sat for Part 1 and Part 2 of the examination.
[17]
On or about 5 June 2019 the first respondent advised her that she had
successfully passed both Part 1 and 2 and was invited
to participate
in Part 3 thereof. Part 3 Practical Assessment was to be held over
two days on 13 and 14 June 2019. She participated
in same and on or
about 17 July 2019, the first respondent communicated to the
applicant that she did not pass three of the four
sections to the
Practical Assessment. On 22 July 2019 she was advised that she would
re-write Part 3 of the Examination.
[18]
From 17 July 2019 to 20 February 2020 the applicant found herself
again faced with the same struggle pertaining to non-confirmation
of
dates for the Part 3 Examination. It was on 17 March 2020 when the
first respondent's Ms Ndlala communicated that due the Corona
Virus
pandemic which resulted to closure of Universities the first
respondent had no certainty as to whether the Examination would
be
put on hold. On or about 24 March 2020, the first respondent
published a notice on its website, to the effect that no board
examinations will be conducted during the
"Lockdown
Perio
d
"
.
[19]
Due to the ongoing uncertainties the applicant instructed her
attorneys to send a letter of demand, that the first respondent
set a
date for the examination during 2020. The first respondent did not
comply with the demand and instead on 7 September 2020
the first
respondent communicated as follows;
"the
Board is not in a position to announce a date at the moment".
[20]
In the light of the aforesaid communication from the first
respondent, on 5 October 2020 , the applicant's attorneys,
transmitted
a further letter to the first respondent demanding that
the applicant be exempted from writing Part 3 of the Examination.
This
is because she had already completed the Russian Federation
Specialist Accreditation and have been issued with a Certificate in
respect thereof. The certificate is evidence that the applicant had
been fully accredited to carry out medical activities in respect
of
dentistry territory of Russia, in accordance with the accreditation
procedure for the Speciality of General Dentistry. True
to the style
of the first respondent, there was no reply to the above demand;
hence this application .
[21]
The issue to be determined is whether the failure of the first
respondent to make a decision to set a date for examination
and or
exempt the applicant from writing Part 3 of the examination is
reviewable.
[22]
The preamble to the Health Professions Act of 1974, the Act states,
amongst others as follows :
"To
provide a framework for a structured uniform health system within the
Republic, taking into account the obligations imposed
by the
Constitution and other laws..."
[23]
Section 25 (1) of the Act provides that: -
"The
Minister
may,
after
consultation
with
the
council
by
regulation
provide
that
any
person
who
holds
a
qualification
which
the
council
may accept by virtue of the fact that such qualification
,
in the opinion of the council, indicates
a
satisfactory
standard
of professional
education
and training
,
may be
registered in terms of this section in the
applicable
prescribed
registration
category,
and
thereupon
the
relevant
professional
board
may
in
its
discretion,
but
subject
to any
regulations and
national
health
policy and
international protocols
which the Minister may make or be subject to
, register
such
perso
n
."
[24]
Section 25 of the Act, read with section 61 (1) 0), empowers the
Minister to make regulations on the registration of foreign
-qualified professionals. The Minister has accordingly published
regulations concerning the Registration of Persons who hold
qualifications
not prescribed for registration. Regulation 2(2) of
the Regulations empowers the Registrar to register a foreign
-qualified person
in the category of public service if such person
holds a foreign qualification
"the education and training
standard
and the duration of study which
"are
accepted by the HPCSA as being equivalent to the education and
training standard and duration of study of a similar qualification
awarded by accredited South African educational institutions .
[25]
Furthermore, the first respondent's guidelines constitute the legal
framework with respect to registration of Foreign Qualified
Medical
Practitioner
in South Africa. The process set out in the Guidelines include
25.1
acceptance of the Application for Registration in the category Public
Service (Dental Practitioner) and the recognition and
accreditation
of the University Degree by the Education, Training and Registration
Committee.
25.2
the passing of the requisite examination for Foreign Qualified
Medical Practitioner and
25.3
the rendering of Supervised Practice for a period of 12 (twelve)
months.
[26]
Paragraph 1.2 of the Guidelines, provides, inter alia that:
"Unless
otherwise
stated,
the examination
will take place
once
a
year,
the time to be determined
by
the
Board
in collaboration
with the dental
school
assisting
the Board
.
"
[27]
As seen above, the applicant began pursuing first respondent for the
dates of examinations from 22 July 2019 when she was advised
that she
would re-write Part 3 of the Examination. This was long before Covid
19 pandemic hit the whole world. The court is placed
in awkward
positon by the non-participation of the first respondent in these
proceedings. The court is not enlightened as to the
reason for
non-communication of the Part 3 Examination dates. One is left
reading between the lines; that the reason might be the
failure of
the University to set the examination and or issue dates of
examination. This exercise is not legally permissible.
[28]
Even if one takes into account the instabilities brought about by the
pandemic, there is no regulatory provision prohibiting
the first
respondent from setting a date for the Examination. Life goes on
within the set parameters in relation to the State of
National
Disaster guidelines in the country .
[29]
From Paragraph 1.2 of the Guidelines referred to in paragraph 26
above it is clear that the board should take a lead in the
setting of
the dates. It is the responsibility of the first respondent to set
the date of examination in collaboration with the
relevant dental
school. The first respondent should lead, and cannot shrug
responsibility to the dental school.
[30]
The prejudice suffered by the applicant in the hands of a
professional body founded in the constitution is despicable. It is
common cause that South Africa has a shortage of medical
practitioners. Here we have a young dentist eager to contribute her
hard
earned skills; sadly, the body tasked to assist her to ply her
trade is nonchalant. One is left wondering whether the first
respondent
is fit for purpose.
[31]
From the above, it is concluded that the non-action of the first
respondent to take a decision to set a date for the undertaking
of
Part Ill of the requisite examination for Foreign Qualified Medical
Practitioners, should be reviewed and set aside. In the
result the
application succeeds.
[32]
Turning to the appropriate order, the doctrine of separation of
powers precludes the courts from impermissibly assuming the
functions
that fall within the domain of the executive. The courts cannot be
seen not observing the sacrosanct doctrine of separation
of powers.
It is therefore not permissible to grant the main prayer of the
applicant, to declare that the Applicant be exempted
from Part Ill of
the requisite examination for Foreign Qualified Medical Practitioners
in accordance with paragraph 1.2, Part Ill
of the Guidelines. To do
so the court would be encroaching on the domain of the functionary,
the first respondent.
[33]
The following order ensues;
ORDER
1.
The First Respondent is ordered to set a date for the undertaking of
Part Ill of the requisite examination for Foreign Qualified
Medical
Practitioners, within 30 (thirty) days of this Order being granted;
2.
The First Respondent is ordered to pay Costs of this application.
N.P.
MALI
JUDGE
OF THE HIGH COURT
APPEARA
NCE
For
the
applicant
Adv
Solomon (SC)
Instructed
by:
Leslie
Cohen & Associates
Date
of hearing 25 May 2021