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[2019] ZAECELLC 16
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Gungqa and Others v Lilitha College of Nursing and Others (EL365/2018) [2019] ZAECELLC 16 (9 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE NO.: EL365/2018
Matter
heard on: 27/06/2019
Judgment
delivered on: 09/07/2019
In
the matter between:
PHILASANDA
GUNGQA 1
ST
APPLICANT
YAMKELA
MBUNDE
2
ND
APPLICANT
NOZIQOQO
NTAME
3
RD
APPLICANT
CEBOLAKHE
SUKWANA 4
TH
APPLICANT
NTOMBIZANELE
MZOLA 5
TH
APPLICANT
SOYISO
SOGWEDLA 6
TH
APPLICANT
ZANELE
KOYANA 7
TH
APPLICANT
AYANDA
YOYO
8
TH
APPLICANT
AMKELWE
NINI
9
TH
APPLICANT
and
LILITHA
COLLEGE OF NURSING
1
ST
RESPONDENT
THE
ACTING PRINCIPAL:
LILITHA
COLLEGE OF NURSING 2
ND
RESPONDENT
THE
EAST LONDON CAMPUS HEAD
LILITHA
COLLEGE OF NURSING 3
RD
RESPONDENT
THE
MEC: DEPARTMENT OF HEALTH
4
TH
RESPONDENT
JUDGMENT
SMITH
J:
[1]
The applicants instituted urgent proceedings against the
respondents in two parts. In the first part they sought
an interdict
reinstating them as students of Lilitha Nursing College (“the
College”) and interdicting the respondents
from prohibiting
them from writing their exams. And in the second part they sought an
order reviewing and setting aside the decision
taken by the
respondents on 31 May 2019 to cancel their registrations as students
of the College.
[2]
On 18 June 2019, however, apparently because the applicants had been
allowed to continue attending classes and writing
exams, Mbenenge JP
ordered that only the second part of the notice of motion, namely the
review application must be enrolled for
hearing on 27 June 2019.
[3]
The College admitted and registered the applicants for a four year
nursing course during January 2018, and they
are currently still
attending classes in those capacities, despite the impugned decision
to cancel their registrations. The respondents
are: the Lilitha
College of Nursing, a nursing college established in terms of the
provisions of the Education and Training of
Nurses and Midwifes Act,
No. 4 of 2003 (“the Eastern Cape Act”); the Acting
Principal of the College; the East London
Head of the College; and
the Member of the Executive Council for Health, Eastern Cape.
[4]
The facts are mainly common cause and can be briefly summarised as
follows. During February 2017 the College published
a notice inviting
applications from prospective students. The following requirements
were stipulated: a Grade 12 Certificate, with
aggregate D or E pass;
English Language 3 (D symbol or better); Biology (Life Sciences)
level 4 (D symbol or better); and other
science subjects which are
considered when the Admission Point System is computed, the minimum
points required being 18.
[5]
All the applicants submitted duly completed application forms,
together with their year-end matric results. They
were all called for
interviews and thereafter, during January 2018, advised that their
applications were successful and they were
accordingly enrolled for
the four year nursing diploma.
[6]
They attended classes from 2 February 2018, and were required to sign
various forms in order to formalise their
enrolment and registration
in terms of the provisions of the Nursing Act No. 33 of 2005 (“the
Nursing Act&rdquo
;).
[7]
On 9 March 2018 they were told by the third respondent that the
College discovered that they had been enrolled erroneously
since they
failed to secure the minimum admission points. They thereafter
launched urgent proceedings challenging the decision
to cancel their
registrations,
inter alia
,
on the ground that they were not given a hearing before the decision
was taken.
[9]
On 29 March 2018 an interim order issued in terms of which they
were reinstated as students pending the finalisation
of the review
application. They thereafter resumed their studies and successfully
completed their first year of study.
[10]
On 19 April 2019 the first respondent filed a counter-application
seeking to review and set aside its decision
to admit and enrol the
applicants to the four year nursing diploma course. That application
was, however, not pursued, and on 2
May 2019 Tokota J granted an
order (by agreement between the parties) in terms whereof: the
decision expelling the applicants from
the four year programme was
reviewed and set aside; the applicants were declared entitled to make
representations as to why their
registrations should not be
cancelled; and the College was directed to consider the applications
de novo
, in the light
of the applicants’ representations.
[11]
All of the applicants submitted written representations pursuant to
that court order, and the College responded
to each of them
individually, stating that it had given due consideration to the
representations, but had nevertheless decided
to cancel the
applicants’ respective registrations. The decision was taken on
the basis that a candidate who fails to meet
the prescribed
requirements should not be allowed to enrol for the four year nursing
programme. The applicants were all told that
since they failed to
obtain the minimum admission points, their admissions were unlawful
and
ultra vires
.
[13]
The applicants now challenge that decision on the ground that
the College authorities did not have either express
or implied powers
in terms of the Eastern Cape Act or the
Nursing Act to
cancel the
registration of a student after his or her admission. They contend
that after having taken the decision to admit and
enrol them for the
course, the College was
functus officio
,
and should have applied to court for an order reviewing and setting
aside the decision.
[14]
While the initial decision to cancel the applicants’
registration was fatally tainted by the fact that
audi
alteram partem
had not been observed, that
irregularly has since been remedied by the order of Tokota J. In
terms of that order, the impugned
decision was aside and the College
compelled to reconsider the matter
de novo,
in the light of the applicants’ written representations. And in
terms of the principle of
omnia praesumuntur
rite acts esse
, I am constrained to accept
that the decision was taken by the duly empowered structure or
functionary of the College. The only
issue which accordingly falls
for decision is whether the College has implied authority to cancel
an erroneous registration.
[14]
It is trite that administrative powers can either be derived from
express or implied legislative provisions. Where
an implied power is
relied upon, the fundamental enquiry will always be whether the power
is ancillary to the express power, in
other words, that it is
reasonably incidental to the proper carrying out of an authorised
act. (
Johannesburg Municipality v Davies
1925
AD 395
at 402).
[15]
In deciding whether the contended power must be implied the court
will have regard,
inter alia
,
to the following factors:
(a)
the language of the legislation. In this regard
the court must consider whether the language is peremptory rather
than directory.
The court will be more inclined to find an implied
power which may be necessary to enable the administrative functionary
to comply
with its mandate, where the language is peremptory (Cora
Hoexter: Administrative Law in South Africa, at page 44);
(b)
whether the express power is of a broad
discretionary nature or narrowly circumscribed. Where the power is of
a discretionary nature,
the court will be more inclined to infer an
implied power ancillary to the express power.
In
Winckler v Minister of Correctional Services
2001
(2) SA 747
(C) at 753 J – 755C, the court found that since the
Commissioner has a wide discretion whether or not to place a prisoner
on parole, the power to promulgate directives in this regard was
impliedly authorised. (See also:
Affordable
Medicines Trust v Minister of Health
[2005] ZACC 3
;
2006 (3)
SA 247
(CC) at par 32);
(c)
whether the implied power is necessary for the
achievement of the objectives of the legislation, or the
administrative body cannot
function without it. (
Nouwens
Carpets (Pty) Ltd v National Union of Textile Workers
1989
(2) SA 363
(N) at 367 H-J);
(d)
the court will be loath to find an implied power
where it will have coercive, oppressive or undesirable far-reaching
consequences.
In Mokoena v Commissioner of
Prisons and Another
1985 (1) 368 WLD, the
court declined to find an implied power entitling the Commissioner of
Prisons to promulgate regulations stipulating
that the consultations
with legal representatives must be held within the hearing (as
supposed to within sight) of a prison officer,
since it was
considered to be “manifestly desirable that the least possible
inroad be made upon the principle that communications
between client
and legal adviser are confidential”.
(See
also
: Lipschitz NO v South African
1985
(2) SA 702
(C);
and City of Cape Town v AD
Outpost (Pty) Ltd
2000 (2) SA 733
C).
[16]
Neither the Eastern Cape Act nor the
Nursing Act makes
express
provisions for circumstances in which the registration of a student
may be revoked, other than for disciplinary reasons.
While Section 8
of the Eastern Cape Act provides for an admission policy and minimum
requirements for admission, it is silent on
whether a registration of
a student, once admitted, may be cancelled without judicial sanction.
[17]
And
section 32
of the
Nursing Act makes
it compulsory for any person
undergoing education or training in nursing to apply to the Nursing
Council to be registered as a
learner nurse or midwife. In terms of
this section the Nursing Council is only required to register a
person “who has complied
with the prescribed conditions and has
furnished the prescribed particulars for a training programme at a
nursing education institution.”
[18]
In terms of subsection 32 (6):
“
The Registrar must
delete from the register the name of a learner, nurse or mark in the
register the name of any person, suspended
from study and must notify
such learner nurse or person accordingly in writing”.
[19]
Returning to the facts of this case, it is important to state upfront
that it is common cause that: the applicants
did not comply with all
the prescribed requirements, in particular the requirement relating
to minimum admission points; the applicants’
admission and
enrolment to the four year nursing course occurred as a result of a
bona fide
error on the
part of the College authorities; and if they had been alerted to the
shortcoming, they would have been entitled lawfully
to reject the
applicants’ applications for admission to the course.
[20]
Having regard to the language of the Eastern Cape Act, it is manifest
that the intention was to circumscribe
the College Council’s
discretion regarding the admission of students. The admission
criteria are painstakingly prescribed,
albeit that subsection 8 (d)
vests in the College Council the power to refuse “any
application for admission to the college”,
despite the fact
that the admission requirements had been met.
[21]
Ms Da Silva, who appeared for the applicants, submitted
that properly construed, neither of the statutes impliedly
empowers
the College to cancel a student’s registration in circumstances
where: it had admitted the student after having
had regard to his or
her matric final results; has led the student reasonably to believe
that he or she has met the relevant admission
criteria; and has
allowed the student to attend classes and to write tests. She argued
that such a construction would be oppressive
and would have
prejudicially far-reaching consequences for the applicants. She
submitted that in the circumstances, after admitting
the applicants
to the course, the College authorities were
functus
officio
. They were consequently constrained
to seek judicial sanction and to apply for the review and setting
aside of the impugned decision.
[23]
Mr Nzuzo, who appeared for the respondents, on the other hand
submitted that such an implied power is evident from
the fact that
the College is entitled, in terms of its admission policy, to cancel
a student’s bursary under certain circumstances.
He submitted
that the withdrawal of a student’s bursary makes it impossible
for the affected student to continue with his
or her studies, and
hence in effect amounts to a cancellation of his or her registration.
The authority to reverse an erroneous
admission, whatever the
circumstances, must consequently also vest in the College
authorities, or so he argued.
[24]
I do not agree with the latter submission. It is indeed manifest that
both the Eastern Cape Act and the
Nursing Act expressly
circumscribe
the entitlement of prospective students to be admitted to nursing
courses. Section 8 of the Eastern Cape Act provides
for the academic
admission requirements that applicants must satisfy, and
section 32
of the
Nursing Act provides
that only candidates who have complied
with the training institution’s admission requirements are
eligible for registration.
[25]
It is common course that the College Council adopted an admission
policy, the criteria of which were clearly stated
in the
advertisement inviting applications for the admission to the four
year nursing course. It is common course also that the
applicants did
not meet those criteria. The College authorities were accordingly
entitled - and perhaps even legally obliged -
to refuse registration.
The question is whether they were precluded from doing so once the
applicants had been informed that they
complied with the admission
criteria and admitted to the course.
[26]
In my view, having regard to the language and objectives of the
empowering statutes, the College must have
the implied power to
refuse admission to any student who do not comply with the admission
criteria, and where a student had been
admitted as a result of a
bona
fide
error, in particular where it has
overlooked the fact that the candidate does not satisfy one or the
other admission criteria,
the College has the power to cancel the
student’s registration. In the latter case the affected student
would have to be
notified of the fact that his or her admission may
be reconsidered and allowed reasonable opportunity to make
representations in
this regard. This is of course on the assumption
that the error is discovered soon after admission and there can be no
conceivable
undue hardship for the student. Where, however, as is the
case here, a student has progressed with his or studies to a point
where
it would be unfair for the College unilaterally to cancel the
registration, it seems to me that it would be necessary for the
College
to seek judicial sanction, and itself apply to court for
appropriate relief. The main reason for such an approach is that the
student
will otherwise be denied the opportunity to ask the court to
grant just and equitable relief, instead of simply setting aside the
original decision. It is common that the applicants have been
attending classes and writing tests for the past 18 months. And by
all accounts they are doing well and have successfully completed
their first year of study. They may therefore well have good grounds
for applying for such just and equitable relief.
[27]
It is indeed not difficult to conceive of the devastating
consequences that summary cancelation of their registrations
would
have for the applicants. In circumstances such as these, where
finding the contended implied power would be oppressive for
the
applicants, the court should be reluctant to do so. A finding against
the contended implied power, on the other hand, will
not enervate the
provisions of either statute. The power of the College to implement
its admission policy will remain unaffected,
so also its power to
cancel an erroneous admission immediately after it had been detected
and before a student had been allowed
to sit for classes and to write
tests.
[28]
Having said this, is important to state that, as a matter of fact,
the applicants do not qualify for admission
to the course, and may
still be confronted with a decision by the College Council not to
award their diplomas in due course. The
College cannot be criticised
for the stance that it has taken, and must rather be commended for
their commitment to ensure strict
compliance with its admission
policy. I am accordingly at pains to state that my judgment should
not be interpreted as compelling
the College to allow the applicants
to complete the course despite the fact that they have not met the
prescribed admission criteria.
[29]
I am, however, not convinced that the only option open to the parties
is the one which will have the abovementioned
deleterious
consequences for the applicants. I have little doubt that in
the likely event that the College apply to court
for its decision to
be reviewed, the court hearing the matter would be constrained to
consider whether in the circumstances it
should exercise its
discretion not to set aside the decision, but to grant some other
just and equitable remedy in terms of section
8 of the Promotion of
Administrative Justice Act, No. 3 of 2003. By way of example, the
court may compel the College to allow the
applicants reasonable
opportunity to re-write some matric subjects to enable them to
achieve the required admission points, while
in the meantime
continuing with their studies. I have, during the course of the
hearing, alluded to counsel that it may well be
salutary for the
applicants to make representations to the College Council in this
regard. It is indeed not only important for
the College to protect
its academic integrity, but also for the applicants to avoid a
situation where the integrity of their qualifications
is in doubt. If
the parties are able to reach an agreement of this nature it will
have the effect of protecting the academic integrity
of the College
and at the same time provide peace of mind to the applicants that
their qualifications will be beyond question.
One can only hope that
the parties will seriously attempt to find such a mutually acceptable
resolution to the impasse.
[26]
I am accordingly of the view that the decision taken by the College
authorities on 31 May 2019 was not sanctioned
by the provisions of
either the Eastern Cape Act or the
Nursing Act. The
College
accordingly did not have implied power to cancel the applicants’
registration, and should have approached court for
appropriate relief
in this regard.
[27]
In the result the following order issues:
(a)
The decision taken by the first respondent
on 31 May 2019 to cancel the applicants’ registrations for the
four year nursing
course, is hereby set aside.
(b)
The respondents are ordered to pay the costs of
the application, jointly and severally, the one paying the other to
be absolved.
The costs shall include the costs occasioned by the
employment of two counsel.
__________________________
J.E
SMITH
JUDGE
OF THE HIGH COURT
Counsel
for the Applicants
: Advocate Da
Silva
Attorneys
for the Applicants
: Phillip &
Associates Inc.
Office No. 110, 2
nd
Floor
Milner Building
Kimberly Road
East London
(Ref: M0006/2018)
Counsel
for the Respondents
: Advocate Nzuzo
Attorneys
for the Respondents
: State
Attorneys
Old
Spoornet Building
17
Fleet Street
East London
(Ref.: 287/18-P4 (Ms
Myoli))
Date
Heard
:
27/06/2019
Date
Delivered
:
09/07/2019