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[2019] ZAGPPHC 331
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South African Nursing Council v Hospital Association of South Africa and Others (86011/18) [2019] ZAGPPHC 331 (29 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number:
86011/18
In
the matter between:
THE
SOUTH AFRICAN NURSING COUNCIL
Applicant
and
THE HOSPITAL
ASSOCIATION OF SOUTH AFRICA
First
Respondent
THE CHAIRPERSON OF THE
APPEAL COMMITTEE
Second
Respondent
ADILA HASSSIM
N.O.
Third
Respondent
ELIZABETH KAY-PETERSON
N.O.
Fourth
Respondent
JUDGMENT
POTTERILL
J
[1]
The applicant, the South African Nursing Council [SANC] is seeking
the review and setting aside of the
decision of the second
respondent, the Chairperson of the Appeal Committee’s [the
Appeal Committee] decision dated 31 August
2018. It is seeking the
review in terms of s6(1) read with
s8(1)
of the
Promotion of
Administrative Justice Act 3 of 2000
[PAJA]. In essence the Appeal
Committee upheld an appeal by first respondent, The Hospital
Association of South Africa [HASA] overturning
the 2017 decision of
SANC not to allow foreign nurses to write the requisite SANC
examinations in their country of origin. The
Appeal Committee further
directed that SANC must enter into a new Memorandum of Agreement
[MOU] with HASA’s members regarding
the conduct of the SANC
entrance examinations in foreign countries within a period of three
months from the date of the decision
of the Appeal Committee.
The
issue to be decided
[2]
The question to be answered is thus whether the Appeal Committee
acted administratively unfair in upholding
HASA’s appeal and
directing as it did.
The common cause facts
as background
[3]
In 2005 the Registrar of SANC, due to a critical shortage of
registered nurses, gave permission for
foreign recruits to write the
SANC examinations in their countries of origin to facilitate the
placement of skilled foreign recruits
in South African hospitals to
alleviate the pressure of understaffed institutions.
[4]
After much negotiations SANC entered into an agreement [the 2009 MOU]
with three members of HASA, Life,
Mediclinic and Netcare formally
facilitating the recruitment and registration of foreign nurses by
members of HASA.
[5]
The 2008 MOA included
inter alia
that all the costs and
arrangements, support and communications for the requisite exams were
to be covered by the recruiting company.
At least 15 candidates must
sit each examination and no more than 3 examinations would be held in
a foreign country per annum.
[6]
This MOU was set in motion and operated for 7 years. The 2009 MOU was
replaced with the 2013 MOU on
substantially the same terms.
[7]
In 2016 SANC unilaterally revoked the 2013 MOU and introduced a
requirement that all foreign nurses
were to write their SANC entrance
examinations in South Africa with no examinations to be conducted
outside of South Africa. This
transpired pursuant to the Education
Committee [Edco] recommending that SANC do not renew the MOU with
HASA. The rationale was
that other entities in South Africa were
following suit with similar requests. Edco found the MOU not to be in
line with SANC’s
regulatory function. “
Indian
nurses who employment in South Africa must follow same process like
any other foreign nurses who applications are evaluated
by foreign
deck of Council an determination is made whether they qualify to sit
for examinations as a requirement.”
[1]
[8]
SANCO telephonically conferenced the recommendations of Edco and SANC
then resolved that the Indian
nurses to be employed in South Africa
should follow the same process applied to all foreign nurses. The
rationale is for SANC to
refrain from entering into the MOU with any
organisation but to focus on its regulatory function. SANC approved
the Edco recommendation
on 30-31 March 2016. During June 2016 this
SANC policy was accepted.
[9]
Various correspondence and meetings between HASA and SANC took place,
but on 11 October 2017 HASA issued
a letter of demand to SANC to
reverse the 2016 decision, to disallow exams oversees, and requested
discussion between the parties.
[10] On 5
December 2017 SANC issued a decision in which it upheld its decision
not to allow the writing of the SANC
exams of foreign nurses in their
countries of origin and refused HASA permission to submit a business
case as to why the decision
was to be reversed.
[11]
HASA then lodged an appeal to the Appeal Committee.
The appeal
[12]
The grounds upon which HASA brought the review were that SANC had not
followed due process. The decision
was irrational and arbitrary in
the face of the critical shortage of South African registered nurses
and the decision was thus
not rationally connected to the information
before SANC. The decision did not serve the objects of the Nursing
Act. The jurisdictional
issue raised by SANC was so raised on appeal
for the first time and did not form part of the ratio of SANC’s
decision.
[13]
SANC submitted to the Appeal Committee that SANC had no jurisdiction
to permit examinations to be written
outside South Africa because the
Act, Regulations and relevant policies only apply within the borders
of South Africa. If SANC
allowed such examinations it would be acting
ultra vires
its legislative powers. Furthermore the conclusion
of a MOU threatened the regulatory function of SANC.
The review grounds
The appeal committee’s
decision is irrational because it disregarded the jurisdictional
issue raised by SANC.
[14]
The argument on behalf of SANC was that, despite the decision of SANC
not being based on the fact that jurisdictionally
they are limited to
the borders of South Africa, this could be raised as a new issue at
the appeal hearing because the Appeal Tribunal
was not confined to
the record of SANC, but had to determine the appeal as a wide appeal;
a complete rehearing and redetermination
on the merits of the case,
including new information and additional evidence.
[15]
The Appeal Tribunal found that on the jurisdictional issue; “
Neither
the legal opinion nor the minutes referred to above cited the
jurisdiction of the Council as a reason for reversing its
decision to
permit foreign examinations. Our courts have held that ‘[t]he
duty to give reasons for an administrative decision
is a central
element of the constitutional duty to act fairly.’ The attempt
to justify the decision with different reasons
than were at play when
the decision was taken is not permissible- it amounts to “an ex
post facto rationalization of a bad
decision.”
[2]
The
Appeal Committee found as follows in par [21] of the decisions:
“
Even
if the question of jurisdiction had been the reason for the decision
at the time of the relevant Council meetings it would
not avail the
Council. The legislative framework does not prohibit the conduct of
examinations abroad, instead it confers a discretion
on the Council
to determine where examinations are to be conducted.”
[16] There is
no irrationality in the decision of the Appeal Committee with regard
to the jurisdictional issue. Even
if the Appeal before the Appeal
Committee is a wide appeal versus a narrow appeal, it does not allow
for the original decision-maker
to defend a decision on a ground that
was not a ground for the decision at the time the decision was
made.
[3]
This principle
was confirmed in
Zuma
v Democratic Alliance and Others
2018 (1) SA 200
(SCA)
at
para [24]: “
On
6 April 2009 Mr Mpshe announced publically that he had made the
decision to discontinue the prosecution of Mr Zuma and issued
a
detailed media statement providing the reasons for the decision. It
is against those reasons and those reasons alone that the
legality of
Mr Mpshe’s decision to terminate the prosecution is to be
determined.”
[17]
The jurisdictional issue is thus a non-starter and is dismissed. This
argument was however fortified with
the argument that a Court cannot
allow SANC to act
ultra
vires
its
Act, Regulations and various policies and SANC must fulfil its
obligations in terms of its regulatory obligations and functions.
The
prior 7 years of acting “
ultra
vires”
in allowing this practise is not explained, in fact is evaded and
seemingly blamed on the “
then
Registrar.
”
[4]
It is unexplained why for 7 years this “
unlawful”
practice was continued with further MOU’s being signed. The
reason is in fact straightforward; the writing of SANC exams
in
foreign countries is not
ultra
vires
SANC’s purpose and its legal framework. When confronted with
why allowing exams to be written in foreign countries would
be
contrary to SANC’s legislative framework I was referred to
general objects of the Council set out in section3(b), (d)
and
4(1)(c) of the
Nursing Act 33 of 2005
[the Act].
The Act
3(b) “
Perform
its functions in the best interests of the public and in accordance
with national health policy as determined by the Minister;
3(d)
Establish, improve, control conditions, standards and quality of
nursing education and training within the ambit
of this Act and any
4(1)(c)
conduct examinations, and appoint examiners and moderators and
grant diplomas and certificates in respect of such examinations.
”
[18]
Nothing in the Act referred to, in any way, renders granting
permission to write SANC examinations in foreign
countries
ultra
vires.
In fact, the finding of the Appeal Tribunal that SANC is
required to perform its functions in the best interest of the public
and
to promote the provision of nursing services to the public speaks
for itself. The finding that: “
Making reasonable provision
for Council examinations to be conducted in a foreign location
subject to the oversight of the Council
and at the expense of the
hospitals (as provided for in the previous MOUS) is consistent with
the objects of the Council”
is rational and in terms
of the Act.
The regulations
[19]
Regulation 17 clothes SANC with a discretion to decide at which
places examinations may be conducted. It does not
prohibit overseas
examinations. The decision to conclude no further MOU’s however
did not reflect that SANC had decided to
exercise its discretion
differently pertaining to writing exams in foreign countries. Its
rationale was that the decision was not
in line with SANC’s
regulations and other institutions were following suit. The
exercising of a discretion was not raised
in the decision on review,
or before the Appeal Tribunal and there is thus no need for this
Court to address this.
[20] Counsel
for SANC did however raise the exercising of the discretion as a new
argument in that there was no basis
to interfere with the conferred
discretion exercised as it was. It was argued that SANC
exercised its discretion according
to the minimum standards of
legality and good administration and did not abuse its power.
[21] If
the findings of the Appeal Tribunal, quoted supra in para 18, are
findings on the exercising of SANC’s
discretion, then the
Appeal Committee entertaining the matter as a “
wide appeal”
is entitled to alter the discretionary decision on the basis that
SANC did not promote the objects of the Act. There is nothing
irrational in such finding. This is specially so in view of the
shortage of trained nurses and midwifes, expanded on below in the
reasons pertaining to the second ground of review.
Policies
[21]
Reliance was placed on a SANC policy published in June 2016. This
policy in guideline 6 sets out:
“
6.1.1
FOREIGN NATIONALS
The following must be
submitted to SANC upon application:
a)
Letter
of intent/application
b)
Curriculum
vitae
c)
A letter of support to write examinations in South Africa from the
NDoH:FWMP
d)
…”
[5]
It was submitted that the
Appeal Committee ignored this policy and specifically 6.1.1.c.
[22] A letter
of support to write examinations in South Africa cannot, on any
interpretation, be equated to a ban on
writing exams in foreign
countries. A letter of support is
inter alia
required when the
exam is written by a foreign national in South Africa.
[23] The SANC
policy must adhere to the policy of the National Department of
Health. Neither the Department of Health
policy, nor the SANC policy,
sets out any blanket ban on conducting foreign examinations. This is
not strange in the climate of
a shortage of qualified nurses.
[24] The
Appeal Committee did not ignore the policy, but rejected the
contention of SANC that the Act, regulations and
policies could be
raised as ousting the writing of exams in foreign countries because
the jurisdictional issue did not form part
of the ratio of SANC’s
decision to ban same. The Appeal Committee was in law correct to do
so.
[25]
Furthermore policies are not binding enactments. What is worse, SANC
submitted it has to adhere to the Department
of Health Policy but
could not rely on the Department of Health Policy to support their
ban. They rely on a SANC policy and they
cannot hoist themselves by
their own petard.
[26] This
ground of review is dismissed.
The appeal committee
accepted out-dated evidence
[27] The
evidence in support of HASA’s appeal was, A Human Sciences
Research Council Monograph of 2009, The 2013
Sector Skills plan, The
2017 National Scarce Skills list and Statistics available on SANC’s
website.
[28] SANC
boldly disputed the veracity of this evidence and places the
responsibility to have obtained better evidence
on the shoulders of
the Appeal Committee. The Appeal Committee should have summoned
further, relevant and current statistics.
[29] Before
the Appeal Committee evidence is placed that there is a shortage of
nurses. In fact, it is common cause
the shortage was one of the
reasons for concluding the previous MOU’s. SANC, the statutory
body with the function to register
nurses, puts up no evidence to the
contrary. Now, surprisingly, SANC complains about the veracity of the
evidence, but puts up
no countervailing evidence. Not only is the
statistical evidence before the Appeals Committee uncontested, the
evidence is also
unanswered before this Court. The evidence is simply
not refuted. The evidence of HASA must be accepted because there is
no factual
dispute on the papers. A bare denial does not sustain a
dispute of fact.
[6]
[30] This
ground of review is unmeritorious and in fact spurious; a body that
has the statistics first hand now complains
the Appeal Committee had
a duty to call for it. The Appeal Committee in this instance had no
legal duty to do so; one cannot
quibble and cavil, yet put up
no countervailing evidence and then lay the blame at the feet of the
Appeals Committee. Relying
on the
Pepkor
decision
[7]
is not support for
SANC’s submission because in SANC’s affidavits no mistake
of fact is set out. Complaining about
incorrect statistics, without
any evidence to the contrary, does not set up a mistake of fact and
there is nothing that should
have alerted this Court or the Appeals
Committee that there is indeed a mistake of fact.
[31]
This ground of review is dismissed.
The relief granted is
too wide and unenforcable
[32] There
are two complaints pertaining to the relief granted; the relief is
for all “’
HASA[‘s] members’, not limited
to Life, Mediclinic and Netcare and the ‘foreign countries’”
should have been limited to “
India”
.
The Appeal Committee’s decision thus exceeded the scope
of the issues it had to determine.
[33] Both
these complaints do not render the decision reviewable. There is no
merit that “
foreign countries”
should be limited
to “
India”
alone. The fact that one MOU related to
only India is not the test; the question is what relief was sought
and did the relief granted
exceed the scope of the relief sought. The
decision of SANC was that no exams could be written in foreign
countries; this decision
was appealed and the relevant relief sought
was:
“
84.2.
The SANC’s decision of 5 December 2017 not to permit
foreign nurses to write the SANC entrance examinations
in their
country of origin is set aside; and ..
.”
[8]
The relief granted by the
Appeals Committee accords exactly with the relief sought:
“
34.2
the Council’s
decision of 5 December 2017 not to permit foreign nurses to write the
SANC entrance examination in their country
of origin is set
aside;”
[9]
This ground of review is
dismissed.
[34] The
complaint that HASA members should have been restricted to Life,
Netcare and Mediclinic is also meritless.
Paragraph 84.3 of the
lodged appeal requested that a new MOU with “
HASA’s
members”
be concluded. Paragraph 34.3 of the decision of the Appeal Committee
granted exactly that. The argument that MOU’s were initially
concluded with only these members of HASA is irrelevant, simply
because SANC did not decide that only Netcare, Life and Mediclinic
could not accommodate foreign nurses to write their exams in their
country of origin. SANC decided not to renew the MOU’s.
The
further decision was “…
that
Council should refrain from entering into memoranda of understanding
with
any
parties
…”
[10]
[my
emphasis]
This ground of review is
dismissed.
The decision is
irrational for not setting out the proposed terms for the MOU to be
concluded
[35] The
argument was that a time-frame for concluding the MOU’s was
part of the relief, but no guidance was given
by the Appeal Committee
to the proposed terms or indicating the minimum aspects that should
be contained in the MOU’s. The
Appeals Committee had the wide
powers to do so and should have done same.
[36] I have
to conclude that SANC is being obstinate and disingenuous; they have
concluded previous MOU’s with
the specific purpose that foreign
nurses can be examined in their country of origin, why they would
need guidance escapes me. If
the Appeals Committee had specified
terms it can be safely assumed that SANC would have had great scope
to submit that an Appeals
Committee cannot negotiate and contract on
behalf of the parties. The previous MOU’s will be the backdrop
to which negotiations
will take place to accommodate the order that
within a month a MOU must be concluded allowing for foreign nurses to
write their
examinations in their country of origin.
[37] I
accordingly make the following order:
37.1
The review application is dismissed with costs, including the costs
of two counsel.
37.2 The
MOU’s must be concluded within three months from this order.
S.
POTTERILL
JUDGE
OF THE HIGH COURT
CASE
NO: 86011/18
HEARD
ON: 19 June 2019
FOR
THE APPLICANT: ADV. D.B. DU PREEZ SC
ADV.
L. VAN WYK
INSTRUCTED
BY: Maponya Incorporated
FOR
THE 1
ST
RESPONDENT: ADV. S. BUDLENDER
ADV. S. PUDIFIN-JONES
INSTRUCTED
BY: Norton Incorporated
DATE
OF JUDGMENT: 29 July 2019
[1]
Page 102
[2]
Paragraph 20 of decision; footnotes omitted
[3]
National Lotteries Board and Others v South African and Education
and Environment Project
2012 (4) SA 504
(SCA) at para 27
[4]
Paragraph 7.5 of the founding affidavit
[5]
SANC3
[6]
Laugh it Off Promotions v SAB International Finance (BV)
[2005] ZACC 7
;
2006
(1) SA 144
(CC) paras 31-33
[7]
Pepcor Retirement Fund v Financial Services Board and Another
2003 (6) SA 38
(SCA) para [31]
[8]
Page 160
[9]
Page 52
[10]
Page 102