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[2017] ZAGPPHC 1182
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Thuto Bophelo Training and Skills Academy (Pty) Ltd v South African Qualifications Authority and Others (5652/2017) [2017] ZAGPPHC 1182 (10 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION , PRETORIA DIVISION,)
CASE
NO :5652/2017
DATE:
10/03/2017
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 comprehen
s
ive
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
-
framew
o
rks.
[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 i
t
s
function subje
c
t
to
this
act
;
and
(ii)
oversee th
e
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
SA
QA
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 learn
e
r
midwif
e
5
•
[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 ANO 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 Qualifications 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
strategic 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:
"
1B
.
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
.
27of 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 (HWSET
A
)."
[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 Legislatur
e
,
the Judiciary and the Executive are bound by and subject to the
provisions of
the
Constitutio
n
,
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
judiciar
y
,
would exceed
its
powers as laid down in the
Constitutio
n
.
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 goo
d
.
[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 authorit
y
[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
programm
e
[14]
.
promote
learning
programmes
by
supporting the development
of
learning material
s
[15]
,
improving the facilitation of leamin
g
[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
l
eaner 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 qualit
y
.
[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 asper
annexure A11to 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 "BSM3" 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
t
o 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
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 asset
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.
______________________________
M
F 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 7th 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 of2008
[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 of2005
[8]
Law teachers
www.lawteachcr.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 1998
[14]
Section 10(i) (b) (i) of Act 97 of 1998
[15]
Section 10(l)(c) (ii)of Act 97 of 1998
[16]
Section 10(1)(c)(iii) of Act 97 of 1998
[17]
Section 10(1)(c) (iv) of Act 97 of 1998
[18]
Section 5(3) (a) Act 67 of2008
[19]
Section 5(3) of Act 67 of 2008