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[2017] ZAGPPHC 341
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Thuto Bophelo Training and Skills Academy (Pty) Ltd v South African Qualifications Authority and Others (5652/2017) [2017] ZAGPPHC 341 (10 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA DIVISION,)
CASE
NO:5652/2017
DATE:
10/3/2017
THUTO
BOPHELO TRAINING AND SKILLS
ACADEMY
(PTY)LTD
APPLICANT
Versus
SOUTH
AFRICAN QUALIFICATIONS AUTHORITY FIRST
RESPONDENT
HEALTH
AND WELFARE SECTOR EDUCATION
AND
TRAINING
AUTHORITY SECOND
RESPONDENT
THE
SOUTH AFRICAN NURSING COUNCIL
THIRD RESPONDENT
THE
MINISTER OF HIGHER
EDUCATION
AND TRAINING NATIONAL GOVERMENT
FOURTH RESPONDENT
THE
MINISTER OF HEALTH NATIONAL GOVERNMENT
FIFTH RESPONDENT
THE
MEC OF HEALTH: GAUTENG PROVINCE
SIXTH RESPONDENT
JUDGMENT
LEGODI,
J
Matter
Heard on:
3 MARCH 2017
Judgment
Delivered: 10 March 2017
[1]
'I chose nursing as my profession because I truly believe that the
desire to help other people through nursing is a calling
and I feel
drawn toward helping those in need. Nursing is an honourable career,
and should not be treated as just a job to earn
a paycheck. My
mission is to proudly provide nonjudgmental care to those in need
regardless of race, spiritual beliefs, lifestyle
choices, financial
status, or disability.
My
philosophy is that nurses have a responsibility to the public, to
provide safe, holistic patient centered care. I must remember
that my
patients are not room numbers or medical conditions, but individuals
that require and deserve individualized attention
and care. Nurses
should use clinical judgment to help meet the needs of the patients.
As advocates, we should empower patients
by encouraging them to
become active partners in their own care and engage in mutual goal
setting between ourselves and the patient.
Nurses should maintain
patient confidentiality except when we have a duty to report as
mandated by law. We must educate patients
and their families on
diseases, treatments, and healthy behavior in order to improve their
outcomes. We should also strive to model
positive healthy behaviors
in our own lives in the belief that we will provide better care to
others if we care for ourselves first.
Nurses
have a commitment to keep current in knowledge and skills and seek
self enhancement through perpetual learning. By doing
this, we
will not remain stagnant in our beliefs, but evolve professionally
through evidence based practice and technological advance.
My vision
for myself as a nurse is that I will always continue learning, not
only from the textbook and journals, but from interactions
with other
members of the healthcare team by being involved in the experiences
of the patients and their families. I want to learn
each day and
apply what I have learned to improve my skills as a nurse'.
[2]
This case is about people who want to choose nursing as a profession.
The profound words quoted above were said by Brandi Dahlin
in an
article: "Personal Professional Philosophy of Nursing". The
case is about whether Further Education
and
Training Certificate referred to as: "Community Health Work
(SAOA ID 64697)" in respect
of which the
applicant (ThutoBophelo Training and Skills Academy (Pty) Ltd), is
accredited by the Second respondent (Health and
Welfare Sector
education and Training Authority) to offer to the members of the
public community health work course (referred to
hereinafter as
breaching course) is sufficient for admission to the two new nursing
courses, namely, Higher Certificate in
Auxiliary Nursing and Diploma
in Nursing. Put differently, the question is
whether the breaching course might
be relied upon as a qualification
to be allowed into the two new nursing courses aforesaid.
[3]
Added to the question above, there are other ancillary questions
raised by the two counsel for the second and third respondents
as follows:
3.1
Whether the applicant has proven any of the jurisdictional facts
required for a declaration
of rights, specifically whether it is an
interested parties?
3.2
Secondly, whether the applicant has set out the alleged rights it
wants to be
declared?
3.3
Thirdly, whether the applicant has proven that the breaching course
is equivalent
to a national senior certificate or senior
certificate?
3.4
Fourthly, whether applicant has proven that the breaching course
articulates
horizontally and vertically with the two new
nursing courses?
3.5
Lastly, whether the applicant has placed sufficient facts in
order for the court
to make declaration of rights?
Legislative
Framework
.
[4]
The
National Qualifications Frameworks Act no. 67 of 2008 was assented to
on 17 February 2009 and became effective from 1 June 2009.
The object
of the Act is to provide for further development,
organization and governance of
the
National
Qualifications
Frameworks
[1]
(NQF) which is a
comprehensive system approved by the Minister of Higher Education and
Training,
[2]
currently the
Honourable Dr Blade Nzimande. The Act applies to education programmes
or learning programmes that lead to qualifications
or part
qualifications offered within the Republic by education institutions
and skills development providers and professional
designations
subject to limitations prescribed in the Act.
[3]
[5]
The first respondent, that is, South African Qualification Authority
is authority contemplated in Chapter 4 of the Act
(referring to
Act 67 of 2008) and its object are to:
(a)
advance three objects of the NQF in Chapter 2,
(b)
oversee the further development and implementation
of the NQF, and
(c)
co-ordinate
the sub -
frameworks.
[4]
[6]
The first respondent is in terms of section 12 accountable to the
Minister. In terms of section 13 (1) its functions are
in order
to advance the objective of the NQF to-
"(a)
(i)
perform its function subject to this act; and
(ii)
oversee the implementation of the NQF and ensure the
achievement of
its
objectives;
(b)
advise the Minister on NQA matters in terms of the
Act;
(c)
comply with the policy determined by the Minister in terms of
section
8 (2) (b);
(d)
consider the Minister 's guidelines contemplated in section 8
(2)
(c);
(e)
oversee the implementation of the NQF in accordance with an
implementation framework prepared by the SAQA after
consultation
with the
QCs;
(f)
(i)
develop
a
system of collaboration to guide the mutual
relations of the SAQA and the
QCs,
after consultation with the
QCs and taking into account the objects of the SAQA
contemplated in section 11 and the regulations
contemplated in
section 33;and
(ii)
resolve disputes
regarding the
QCs;
(g)
with
respect to
levels-
(i)
develop the content of descriptors for
each level
of the NQF reach agreement
on the content of with the QCs
(ii)
publish the agreed levels of the descriptors in the Gazette;
and
(iii)
ensure that they remain current and
appropriate;
(h)
with
respect to
qualifications-
(i)
develop and implement policy and criteria, after consultation
with the QCs, for the development, registration and publication of
qualifications and part- qualifications, which must include the
following requirements:
(aa) The relevant
sub-framework must be identified on any document relating to the
registration and publication or part-qualification;
and
(bb) each
sub-framework must have
a
distinct nomenclature for its
qualification types which is relevant sub-framework and consistent
with international practice;
(ii)
register
a
qualification or part-qualification
recommended by
a QC
if it meets the
relevant
criteria;
(iii)
develop policy and criteria after consultation with QCs, for
assessment,
recognition of prior learning and
credit accumulation
and transfer;
[7]
In terms of section 8(1) of the said Act 67 of 2008 Minister has the
overall executive responsibility for the National Quality
Framework,
South African Qualifications Authority and Qualification Council for
General and Further education and Training, the
Qualification Council
for Higher Education and the Qualification Council for Trades and
Occupations contemplated in Chapter
5.
Furthermore, in
subsection (2) the Minister further responsibilities are
set out as follows:
"(2) The Minister
must-
(a)
consider advice from SAQA or a QC in terms of this Act;
(b)
determine policy on NQF matters in terms of this Act and publish the
policy in the Gazette;
(c)
publish guidelines which set out the government's strategy and
priorities for the NQF, and which may be updated
annually;
(d)
provide funds from money appropriated by Parliament for SAQA to
enable it to fulfil its functions in terms of this
Act;
(e)
after considering advice from the SAQA, determine the sub-frameworks
contemplated in section 7;
(f)
determine by regulation in the Gazette, the process by which a
dispute involving the SAQA or a QC must be resolved, and
any matter
relating thereto.
(3) The Minister
must-
(a)
advance the achievement of the objectives of the NQF contemplated in
Chapter 2;
(b)
uphold the coherence and public credibility of the NQF;
(c)
encourage collaboration among the QCs and between the QCs and SAQA.
(4) The Minister
may perform any other function consistent with this Act".
[8]
The
third respondent, that is, the South African Nursing Council is one
of the quality councils established in terms of the Nursing
Act no 32
of 2005 and part of its functions or objects are mentioned in
paragraph19 hereunder. A person undergoing education or
training in
nursing must apply to the council to be registered as a learner nurse
or a learner midwife
[5]
. The
Council must register as a learner nurse or learner mid-wife any
person who has complied and has furnished the
prescribed
particulars of a training programme at a
nursing
education institution.
[6]
In
terms of section 38 of Nursing Act, the Minister may on the
recommendation of the Council prescribe particular qualifications
obtained by virtue of examinations conducted by a nursing education
institution in the Republic which, if held singly or conjointly
with
any other qualifications,
entitled
any holder thereof to
registration
in terms of the Act if he or she has, before or in connection with or
after acquired of the qualification in question
complied with such
conditions or requirements as may be prescribed.
Who
is to determine whether the breaching course is equivalent to
National Senior Certificate or Senior Certificate?
[9]
The Minister of Higher Education and Training to which the
first respondent is accountable in terms of section 12 of the Act, is
cited in these proceedings as the fourth respondent and both the
first and the fourth respondents elected to abide by the decision
of
this court.
[10]
The crux of both the second and third respondents' contention
is that the applicant has failed to prove that the
breaching
course is equivalent to either National Senior Certificate or
Senior Certificate and that in any event a body that
can determine
whether the breaching course in question is so equivalent to
national senior certificate is Umalusi
which is not been
cited or joined to these proceedings.
[11]
The contention in my view does not seem to be supported by any
legislative framework, seen also in the context
of Government
notice no 40545 dated 13 January 2017 and titled
"ARTICULATION POLICY
FOR
THE POST-SCHOOL EDUCATION AND
TRAINING SYSTEM OF SOUTH AFRICA." Paragraph
10 thereof deals
with legislative and regulatory framework and provides.
"10. This
articulation policy is issued in terms of section 8(2) (b) of the
National Qulifications Framework (NQF) Act (no
67 of 2008), which
requires the Minister to determine policy and NQF matters in terms of
the NQF Act, and to publish the policy
in the Gazette.
The NQF Act gives the Minister overall executive
responsibility for the NQF, the South
African Qualifications
Authority (SAQA), the Quality Council (QC) for General and
Further Education and Training (Umalusi),
the (CHE) and
for the QC
for Trades &
Occupations (QCTO)".
[12]
Then in paragraph 13 of the notice under the heading, "The Scope
of the Articulation Policy" it is stated that the
Department of
Higher Education and Training (DHET) is to establish stragetic
policy, principle and guidelines for articulation
and the first
respondent in its overarching co-coordinating role of the three
sub-frameworks and to intervene in cases of unfair
and irrational
barriers to acceptance into learning programmes and or credit
transfer.
[13]
It is very clear where the policy making authority lies and it is not
Umalusi as suggested. That should further be seen in
the context of
the responsibilities of the Department of Higher Education and
Training, (the fourth respondent) as articulated
in the notice of
relevance, paragraph 18 of the notice provides:
"18. DHET will be
responsible to:
(a)
Provide overall leadership in the implementation of
articulation.
(b)
Provide the policy and guidelines of the articulation
to
occur across the post
-
school education and training
system."
[14]
There can be no question that one is dealing here with something
which is post national senior certificate. Most importantly
considering the policy as per the notice herein, read with the
legislative framework articulated earlier in this judgment,
all
relevant parties with the authority to take and make decisions
to determine the status of the breaching course in question
are
before this court, in particular the first and fourth respondents who
are responsible to determine whether such a breaching
course is
equivalent to national senior certificate. The first respondent is
the body which came with a formulation, introduction
and scope of the
breaching course in question.
[15]
Before I conclude on the topic,
General and Further Education and
Training Quality Assurance Act No 58 of 2001
had been referred to in
an affidavit deposed to by Emmanual Sibanda acting Chief Executive
Officer Umalusi. In paragraph 4 of the
affidavit inter alia, he
states:
4.2
For the purposes of the issue before court, it is important to note
that Umalusi is
the Quality Council for General and
Further and Training as contemplated in the NQF Act and has all the
functions contemplated
in Section 27 of the NQF Act."
[16]
Furthermore, in paragraphs 7 and 8 of his affidavit, Mr
Simanda states:
"7.
Being the Quality Council responsible for Quality Assurance in
the NQF
1 to 4 GENFET sub- framework, Umalusi is the
institution that ought to be entrusted with the responsibility of
evaluating whether
a qualification placed, at say NQF level 4, is
equivalent to one of the qualifications within the sub-framework for
which it is
responsible. The equivalence of a qualification
registered on NQF (but not on the GENFET sub framework) to the
National Senior
Certificate would be a case in point. Determining
equivalent requires a comparative evaluation of the qualifications
(including
their respective purpose and outcomes), the contents of
the curricula of the two qualifications and the extent and nature of
the
assessment.
8. …
9.
If any educational institution offering a qualification on the NQF
wishes to refer to such
a qualification as being equivalent to the
National Senior Certificate, it ought to approach Umalusi
for such a determination.
All the required information and
documentation would need to be submitted to Umalusi for an
evaluation. Umalusi is entitled to
change fees for its services."
[17]
As a start, there are two quality councils under Chapter 5 of Act 67
of 2008. It is Umalusi which in terms of section 24 of
Act 67 of 2008
is the QC for General and Further Education and Training as provided
for in the GENFETTQA Act and QC for Higher
Education as provided for
in the High Education Act. Now based on the quotation above,
counsel for the third respondent
argued that Umalusi is the
only body that can make a determination on whether the breaching
course under discussion is equivalent
to the National Senior
Certificate. Act 58 of 2001 applies to all education institutions
which have been established, declared
or registered under the -
(a)
South African Schools Act, 1996 (Act No 84 of 1986);
(b)
Further Education and Training Act, 1996 (Act 1998 of 1998;
or
(c)
Adult Basic Education and training Act, 2000 (Act 52 of
2000).
[18]
Section 23 of Act 58 of 2001 deals with the accreditation of private
providers and it provides as follows:
"
23.
(1) The Council must develop criteria
for accreditation of private
providers and submit
them to the Minister.
(2)
The Minister must determine policy in respect of such criteria in
terms of the National Policy Act, 1996 (Act
No.27 of
1996).
(3)
The policy contemplated in subsection (2) is binding on all private
providers.
(4)
Any person who is required to register as-
(a) an
independent school in terms of the South African Schools Act, 1996
(Act No.84 of 1996);
(b) a private further
education and training institution in terms of Further Education and
Training Act, 1998 (Act No. 98 of 1998);or
(c) a private
centre in terms of the
Adult Basic Education and Training Act, 2000
No. 84 of 1996); Education and Training Act, 1998 (Act No. 98
of 1998); or (Act No. 52 of 2000),
must apply to
the Council for accreditation in the manner determined
by the Council.
(5) An
applicant for accreditation must submit any additional information
required by the Council.
(6)
(a) The Council must conclude its evaluation of the applicant and its
educational
programmes within a period of six months.
(b)
The Minister may extend the period contemplated in paragraph
(a) if there are reasonable grounds for
extention."
[19]
Nursing
Council under Act 33 of 2005 has its objects, amongst other, to serve
and protect the public in matters involving
health
services
generally
and nursing services.
[7]
On the other hand, the second respondent, (Health and Welfare
Sector Education and Training Authority) is one of the
21 Sector
Education Training Authority (SETA's) responsible for the
education, training and
skills
development requirements of the
"the health,
social development
sector". The applicant is registered and accredited under the
second respondent and in the first
paragraph of its 'Extension of
Scope Approval' dated 18 September 2015 and issued to the
applicant, it is
stated:
"This serves to
confirm that THUTOBOPHELO TRAINING SKILLS ACADAMY is granted approval
status for the following NQF registered
Qualification of
a
primary Skills Development Provider with the Health and
Welfare SETA (HWSETA)."
[20]
The applicant's accreditation is in the field of health services and
thus, making it different from the level 4 qualifications
as in
senior certificate or national senior certificate to which the
Minister of Basic Education, the Honourable Angie Motshega
assisted
by Umalusi, is responsible. The post-school referred to in paragraph
18 of the Government notice quoted in paragraph [13]
of this judgment
seems to envisage a distinction between a formal schooling and
educational qualifications in health services acquired
outside a
normal school set up. There seem to be the essence for various Acts
and quality councils created thereunder.
Declaring
breaching course to be sufficient for admission to the two new
nursing courses
[21]
This relief if granted would mean that what is supposed to be done by
a functionary\functionaries must be done by this court.
The
functionaries with regard to who is entitled to register in terms of
section 38 of the Nursing Act referred to in paragraph
8 of this
judgment and who is learner complying with prescribed conditions and
has furnished the prescribed particulars of a training
programme as
contemplated in subsection (2) of section 32 of the Nursing Act, is
the Minister responsibility and the Nursing Council
or at the
recommendation to the Minister of Health by the third respondent. The
Minister of Health is the fifth respondent in these
proceedings. I am
reluctant to accede to what I am been asked to do at this stage.
[22]
The
doctrine of
"separation
of powers' is acknowledged as an
integral
part of
the
basic
features of our constitution.
It is also
commonly agreed that all
the
three
organs of state, i.e the Legislature, the Judiciary and the Executive
are bound by and subject to the provisions of the Constitution,
which
demarcates their respective powers, jurisdictions, and
responsibilities
and
relationship with one another. It is assumed that none of the organs
of the state including the
judiciary,
would
exceed its
powers as
laid down
in
the
Constitution.
It is also
expected that in the overall interest of the country, even though
their jurisdictions are separated and demarcated all
the institutions
would work in harmony and tandem to maximize the public
good.
[8]
[23]
Courts now
derive their power from the Constitution itself.
[9]
It follows that courts too must observe the constitutional limits of
their authority.
[10]
In
Doctors for Life International v Speaker of the National Assembly &
Others the Constitutional Courts
[2006] ZACC 11
;
2006
(6) SA 416
(CC) para 37 it was held:
"Courts must be
conscious of the vital limits on judicial authority and the
Constitution's design to leave certain matters
to other branches of
government. They too must observe the constitutional limits of their
authority. This means that
the judiciary
should not interfere in the other branches of Government unless to do
so is mandated by the constitution".
[24]
The
Constitution Court also reminded us that courts should assiduously
refrain from exercising executive or legislative functions
under
disguise of judicial review (OPP, Transvaal Minister of Justice
and Constitutional Development & Others
[11]
In paragraph 183 of OPP Transvaal it was held that judicial
review permits courts to call upon the executive
and
legislature to observe the limits of their powers, but does not
permit courts to exercise these powers themselves. Courts therefore
have a duty to patrol-but not cross- the constitutional borders
defined by the Constitution.
[12]
[25]
In paragraph 91 of the second respondent answering affidavit it is
stated: "It is within SANC's power to register qualifications
and state in them what the admissions requirements are... " I
tend to agree as also indicated previously in this judgment
when
dealing with the legislative framework. Then in paragraphs 22 and 23
of the replying affidavit the applicant alludes to the
issue as
follows referring to a meeting of 13 December 2016:
"22. In the
letter is recorded that the meeting was only attended by staff from
the SANG Accreditation section and that
any decision,
outcome or view that was raised in the meeting was not a
formal decision or view of SANG.
In the letter it is
stated that after the enquiry, it was established that flowing
from the meeting that there were no points
referred to SANC's
Council for deliberation and or decision.
23. In the light of
the aforesaid, the majority of the allegations contained in SANC's
answering affidavit support the un-equivocal
conclusion that SANC's
failure to provide any assistance or clarification on the
issue of dispute, directly contributed
to the current position in
which the applicant and its students find themselves."
[26]
It is very clear from the quotation above that the applicant
approached this court on the basis that SANC (the third
respondent)
and
correctly so, is the body that must determine whether the Community
Health Work qualification (the breaching course), is sufficient
for
admission to the new nursing courses, that is, Nursing in Diploma and
Higher Certificate Auxiliary Nursing, the question being
whether the
third respondent has taken a definite decision on the
issue.
[27]
That being so, the applicant is effectively asking this court to
poach into the third respondents' terrain. At the risk of
repetition,
courts have a duty to patrol-but not cross the constitutional
boarders defined by the constitution. The applicant alluded
to the
fact that the third respondent has not been formally approached to
take a decision on the issue. Therefore, any attempt
to make a
declaration at this stage will be plunging into the unknown. For this
purpose, I do not have to deal with the merits
of the applicant's
cause of action.
[28]
I should however be concerned and be worried about the learners'
plight. The decision on the issue should be very important
for
them. Firstly, they have, as it appears from the papers,
paid a lot of money, most importantly they have to arrange
their
lives properly. Therefore, urgent certainty on the issue should be
very important to them. Dealing with certainty to the
affected
learners, this court got more worried when counsel for the third
respondent in the course of oral argument indicated that
every
learner who is a holder of national senior certificate is entitled to
enroll for any of the two new nursing courses. One
is tempted to
conclude that he would not have made this submission without
instruction by the third respondent. Counsel for the
applicant
responded by saying there can never be
anything like that as such a stance would cause the third
respondent
to be flooded and overwhelmed by people wishing to enroll for nursing
simply on the basis of national senior certificate.
The
confusion is clearly fueled and it is for the third respondent to set
the record straight as a matter of urgency,
bearing in
mind that this court was told that about 95% of learners who enrolled
for Community Health Course (SAQA 64697) with
the applicant are
holders of national senior certificates or senior certificates. There
seems to be competing interests based on
the two conflicting
submissions which I do not have to articulate at this point in time.
It is the third respondent's responsibility
to clear the air and
avoid innocent learners to continue to be victims of something
which is not their own making.
[29]
One imagines that the scope of the breaching course, that is,
Community Health Works Course (SAQA 64697), as articulated by
the
first respondent (South African Qualifications Authority) would serve
as an added advantage to any person who applies to
the third
respondent to be enrolled as a nurse. For example, the first
respondent in its document dated 5 December 2016 and attached
to the
applicant's founding affidavit as annexure "A11", dealing
with the purpose of the breaching course (SAQA 64697)
inter alia,
states:
"This
Qualification is for any individual who is, or wishes to be, involved
in
Ancillary Health Care services. A learner who has
achieved this qualification will integrate
a
range
of awareness and competencies to practice the roles of health
promoter, health provider and health note worker within
a
community development context.
Learners working toward
this Qualification will find that the acquisition of competence in
the Unit Standards, which make up the
Qualification, will add value
to their work performance. This Qualification
is intended to
enhance the provision of entry-level service within the field care
within all sectors.
Learners who complete
this qualification will have better self and social awareness and
will possess
a
range of thinking and problem solving skills.
In addition, they will process the competence
required
to perform community health functions in
a
complex
development world context.
They will have
the skill require for
employment by
a
range of
government and social sector employers
, will be in
possession of
a
further education and training
certificate and will be eligible for certain credit recognition in
various higher education health
qualifications.
Qualified learners is
this field
will provide
a
service that
will assist communities to better manage their own
health and wellness
. They will have the skills to
work as team members and
as providers of support services
within
a
multidisciplinary health care team.
In addition, recipients
will be able perform some of the following according to their choice
of electives:
•
Facilitate and
administrate community health activities\center via supervision of
a
team of health care
workers.
•
Provide community
health
care
.
•
Provide care for
persons with intellectual and physical
disabilities
•
Assist in planning
advocacy campaigns to support primary health
care
initiatives.
•
Assist in facilitating
and implementing primary health care projects within the community.
•
Engage in
inclusive communication with Deaf South
Africa.
•
Practitioners
will generally carry out their roles within the context
of:
>
The
client's home.
>A
community care center.
>
The
broader community.
[30]
The underlining is my emphasis. The purpose articulated in the
quotation above, in my view, seems to be in line with the vision
of a
nursing profession set out in paragraph 1 of this judgment. I am
however making no final determination. I find it necessary
to refer
the dispute herein back to the third respondent to make a
determination whether the breaching course, (Community Health
Work
Course), entitles the holder of the Certificate thereof to enroll for
Diploma in Nursing and or Higher Certificate Auxiliary
Nursing. I now
turn to other issues.
Declaring
that Community Health Work Course is equivalent to National
Senior Certificate
[31]
I have already made a finding that the fourth respondent, Minister of
Higher Education and Training is the Minister responsible.
The first
respondent is answerable to him and not to the Minister
of Basic Education. Simply put, Further Education
and Training
Certificate called Community Health Work: SAQAID 64697 -NQF Level 4,
should be seen as a qualification falling
under
the Department of Higher Education and
Training as defined in section 1 of
Skills Development
Act 97 of 1998
and the second respondent is created under the Act
aforesaid.
[32]
It
is
the
responsibility
of
the
Minister of
Higher
Education
to
establish
sector education and training authority
[13]
(SETA'S) with a constitution for any national economic sector and the
second respondent is one such sector education training authority.
The framework of sector education and
training
authorities is
amongst
other, to implement its
sector
skills plan by- establishing learning programmes
[14]
,
promote learning programmes by supporting the development of learning
materials
[15]
, improving the
facilitation of learning
[16]
and assisting in the
conclusion
of
agreement
for learning programmes, to
the
extent that
it
is
required.
[17]
[33]
The applicant in its replying affidavit, amongst other, articulates
the second and third respondents' opposition as follows:
"9.
As
a
point of departure it is important to note that the
first respondent, as well as the fourth and fifth
respondents,
have indicated that they will abide by the decision of
the court and that they will not oppose this matter. The first and
fourth
respondent have not entered any appearance to oppose the
matter. This is of importance
as the first and fourth
respondents are the only parties who have any say about the issue in
dispute in this matter. namely whether
the Community Health Work
Course (SAQA 64697) enables
a
learner to
register for the two new nursing courses referred
to
in
the founding
affidavit”.
[34]
Yes and no to the statement above. The first and fourth respondents
are the only parties that can decide on the issue whether
Community
Health Work Course (SAQA 64697) level 4 is equivalent to national
senior certificate level 4. However, it is not within
their authority
to determine whether such a course (SAQA 64697), entitles a learner
to register for the two new nursing courses.
That is the Nursing
Council (third respondent) and Minister of Health (fifth respondent)
responsibility as articulated in paragraphs
23 to 32 of this
judgment.
[35]
It
is
unfortunate
that
the
first and
fourth
respondents
elected not
to
participate
in
these
proceedings.
The dispute
clearly requires not only their intervention, but, also to determine
the issue whether the Community Health Work Course
in respect of
which the first respondent accredited and registered the applicant is
equivalent to national senior certificate.
That being
so,
the
first and
fourth respondents cannot be
passive in
dealing
with the dispute between the parties. It is the responsibility of the
first respondent to seek to achieve the objective
of the National
Qualifications Framework by-inter alia ensuring that South African
qualifications meet appropriate criteria determined
by the Minister
as contemplated in section
8,
and
internationally
comparable
[18]
; and
ensuring
that
South
African
qualifications are of acceptable quality.
[19]
The Minister in terms of section 8(2) (b) of Act 67 of 2008 is
required to
determine by
regulation
in
the
Gazette
,
the
process
by which a dispute involving the first respondent or quality councils
must be resolved and any matter relating thereto.
(My
emphasis).
[36]
Clearly the fourth respondent (the Minister of Higher Education and
Training) and the first respondent have legislative responsibility
to
resolve the impasse with the applicant, particularly seen in the
light of the registration and accreditation by the second respondent
and a course to which the first respondent is responsible as per
annexure A11 to the founding affidavit and quoted in part, in
paragraph 29 of this judgment.
[37]
To abide by the decision of the court, is to put this court in
collision cause with the separation of powers. What the first
and
fourth respondents seek to do instead is to set the court to
interfere in the other branches of government where the constitution
does not mandate the court to do so. Whilst judicial review permits
courts to call upon the executive and legislature to observe
the
limits of their powers, court are not permitted to exercise those
powers themselves. Until the first and or the fourth respondents
have
attended to the dispute amongst the parties, as they are so obliged
to do, this court resists the temptation to venture into
resolving
the dispute at this stage and the necessary order will be made
hereunder. It suffices for now to mention that this application
is
destined to be postponed pending compliance with the order to be made
in paragraph 44 hereunder. I now turn to deal with another
issue.
Interdict
[38]
In its notice of motion the applicant also sought an interdict
against the second respondent couched as follows:
"3.
That HWSETA be prohibited from providing false incorrect and wrong
information about the applicant's students".
[39]
The second respondent's representative visited the applicant's
Academy during or about October 2016 and insisted to speak to
the
learners without any representative of the applicant. It was during
this meeting that a representative of the second respondent
allegedly
told the learners that Community Health Work course would not entitle
them to register for nursing. That was followed
by several
disruptions, protests and damage to property at the Academy.
[40]
The second respondent in response to the allegations should be seen
in the context of what its view is concerning Community
Health Work
Course. For example, in paragraph 10 of its answering affidavit
second respondent stated:
"10
The
Community
Health
Work
qualifications
and
accredited
service
providers such as the applicant are not
permitted in terms of HWSETA policy (attached as
"8SM3"
to
even
infer
that
such
qualifications
has
to
do
with
nursing,
pre-nursing
or anything also
that
it
not
HWSETA"
[41]
This being the attitude, the second respondent would have
communicated its view to the learners. However as indicated
previously
in this judgment, it has no authority to express a final
view. It is the third respondent which is entitled to set the
criteria
for itself and until a final determination is made by the
body that is entitled to do so, the second respondent should be
interdicted
as prayed for by the applicant.
Striking
out
[42]
The second respondent objected to certain averments made in the
applicant's replying affidavit. The aspect to which the second
respondent objected to, has relevance to the merits of the
applicant's case. The proceedings proceeded on the basis that a
decision
will be made on the striking out after having heard argument
on the case as a whole. As I do not have to make a finding on the
merits, I also make no finding on the striking out.
[43]
At the conclusion of oral argument on 2 March 2017 I directed that
any party who wishes to file further heads must do so by
not later
than Monday 6 March 2017. The second respondent filed written heads
which were only brought to this court's attention
on Tuesday 7 March
2017 and by this time judgment was already written. The applicant
raised an objection to the additional written
heads. This judgment is
handed down without having regard to any of the submissions made in
the additional written heads, firstly
because they were brought to
this court's attention late and secondly because of the objection
raised and request to allow the
applicant to file further written
heads and thus creating a situation like re-arguing the matter,
something which the court was
not prepared to do.
Consequently,
an order is hereby made as follows:
44.1
The applicant's application on declaratory order is hereby postponed
sine die pending determination
set out in paragraphs 44.2 and 44.3
hereunder.
44.2
The first and fourth respondents are hereby ordered to determine
whether Community Health Work
Course (SAQA ID 64697) Level 4, is
equivalent to national senior certificate or Senior Certificate, such
a determination to be
made by not later than 31 March 2017.
44.3
The third and fifth respondents are hereby ordered to determine
whether Community Health Work
Course (SAQA ID 64697 entitles one to
enroll for Higher Certificate Auxiliary Nursing and Diploma in
Nursing, such a determination
to be made by not later 31 March 2017.
44.4
The third respondent is hereby directed to clarify by not later than
31 March 2017 whether the
holder of any national senior certificate
or senior certificate as intimated by its counsel is entitled to
enroll for Diploma in
nursing and or Higher Certificate in Auxiliary
nursing.
44.5
The second respondent pending determination in paragraphs 44.2 and
44.3 above is hereby
interdicted from providing
false, incorrect, wrong and or
unconfirmed information
about the applicant to the applicant's
students in particular whether or not Community Health Work (SAQA ID
64697) entitles one
to enroll for Higher Certificate in Auxiliary
Nursing and or Diploma in nursing.
44.6
It is hereby directed that upon determination and clarification as
set out in paragraphs
44.2
to 44.4 above, any party would be entitled to supplement its papers
with the opportunity for any party to respond thereto.
44.7
No order as to costs is made.
__________________________
MF
LEGODI
JUDGE
OF THE HIGH COURT
Counsel
for the Applicant:
Advocate R DU
PLESSIS SC
Instructed
by:
LEN DEKKER ATTORNEYS
Counsel
for the 2
nd
Respondent:
ADVOCATE W STROBL
Instructed
by:
COWAN-HARPER ATTORNEY
Counsel
for the 3
rd
Respondent:
Advocate JAL PRETORIUS
Instructed
by:
NGWENYA ATTORNEYS
Counsel
for the 7
th
Respondent:
Attorney AK Nkome
Instructed
by:
NKOME INC ATTORNEYS
[1]
Section 2 of Act 67 of 2008
[2]
Section 4 of Act 67 of 2008
[3]
Section 3 of Act 67 of 2008
[4]
Section 11 of Act 67 of 2008.
[5]
Section 3(a) of Act no 33 of 2005
[6]
Subsection (1) of section 32 of Act 33 of 2005
[7]
Section 3 of Act 33 of 2005
[8]
Law teachers
wvvw.lawteacher.net.za
December
2016
[9]
Phillips & Others v National Director of Public
Prosecutions [2005] ZACC 15; 2006 (1) SA 505
[10]
See Legal Aid Board supra at 39
[11]
See [2o06] ZACC 11
[2006] ZACC 11
; ,
2006 (6) SA 416
(CC) para 37.
[12]
2009 (2) SACR 130 (CC), see also para 39 of the Legal
Aid Board supra
[13]
Section 9(1) of Act 97 of 199
[14]
Section 10(i) (b) (i) of Act 97 of 199
[15]
Section 10(l)(c) (ii)of Act 97 of 1998
[16]
Section 10(l)(c)(iii) of Act 97 of 1998
[17]
Section 10(l)(c) (iv) of Act 97 of 1998
[18]
Section 5(3) (a) Act 67 of2008
[19]
Section 5(3) of Act 67 of2008