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[2017] ZAGPPHC 392
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De Vries Ambulance Academy (Pty) Ltd v Professional Board for Emergency Care and Others (70434/16) [2017] ZAGPPHC 392 (28 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: 70434/15
DATE:
28/4/2017
In
the matter between:
DE
VRIES
AMBULANCE
ACADEMY
(PTY)
LTD
APPLICANT
And
THE
PR
OFESSIONAL
BOARD
FOR
EMERGECY
CARE
FIRST RESPONDENT
HEALTH
PROFESSIONS COUNCIL OF
SOUTH AFRICA
SECOND RESPONDENT
THE
MINISTER O
F
HEALTH
THIRD RESPONDENT
JUDGMENT
TLHAPI
J
:
[1]
The applicant launched
a review
application against the
respondents. This is therefore an interlocutory application to
compel, in particular the first and second
respondent to provide the
record of the proceedings and reasons which resulted in
a
request
to the third respondent to publish regulations in terms of
section 24 the Health Professions Act, Act
55 of 197
4
("the Act"). The third respondent published
the proposed regulations in Government Notice ("Notice")
No. R 870 of 4 November 2014.
[2]
In the answering affidavit the first and second respondent
launched a counter application seeking a dismissal of the review
application
on the basis that it was premature. The counter
application was opposed on the basis that in itself was premature and
not proper
to be heard during this interlocutory application.
[3]
Section 24 of the Act provides:
"Qualifications
prescribed for registration
The
Minister
may,
on the recommendation of the council, prescribe
the qualifications obtained by virtue of examinations conducted by an
accredited
university, or educations institution or examining
authority in the Republic, which, when held singly or conjointly with
any other
qualification, shall entitle any holder thereof to
registration in
a
registration category in terms of this Act
if he or she has, before or in connection with or after acquisition
of the qualification
in question, complied with such conditions or
requirements
as
may be prescribed.
The
notice reads:
"The
Minister of Health intends, under section 24 of the Health
Professions Act of 1974
...
and on the recommendation of the
Health Professions Council of South Africa, to make regulations in
the Schedule.
Interested
persons are invited to submit any substantiated comments in writing
on the
proposed
amendments to the Director-General:
Health, Private Bag...., within three months from date of publication
of this notice" (my
emphasis)
[4]
An extension of time was granted as per Order of Court of 2
February 2015 to the Applicant for a period of 90 working days to
submit
written representations to the third respondent, after
applicant was in receipt of the first respondent's recommendations to
the
third respondent and source documents. On 24 June 2015 the
applicant's made demand for the
draft regulations
to be
withdrawn and this request was not acceded to by the third
respondent. The application for review was subsequently launched
on 1
September 2015 and on 13 October 2015 the applicant submitted its
representations to the third respondent as called for in
the notice.
I was informed that the review application sought to review and set
aside the publication of the draft regulation on
4 November 2014,
where the third respondent had called for public comment. The parties
did not make the application available for
scrutiny during this
hearing.
[5]
At this hearing the first and second respondent applied for
the admission of a further affidavit which was served on the
applicant
on 6 April 2017. There was no objection raised by the
applicant to such admission. The purpose of the affidavit was to
inform the
Court that the third respondent had promulgated the "final
regulations" in Government Gazette No. 40577 of 27 January
2017,
under Government Notice 49. Furthermore, the applicant had been
approached on 13 March 2017 to withdraw this application
and the
review application contending that the promulgation of the final
Regulations rendered moot any review of the draft Regulations.
The
applicant did not accede to this request.
[6]
In opposing this application the respondents contended that:
(a)
the review application was premature and legally incompetent in that
none of the decisions of the respondents had any
effect on the rights
of the applicant or rights of any other person;
(b)
the draft Regulations were published for public comment and that the
recommendations of the first and second respondent
were not
determinative of the 'applicants rights or the substance of the
regulations';
(c)
the third respondent still intended to consider the written
representations and had not taken any decision
to
promulgate the draft Regulations in their 'present form or at all;
that a review application was appropriate when the third
respondent
published the final regulations ' if the applicant continued to
believe that the process was flawed;
(d)
the applicant had failed to show that there were .exceptional reasons
and also failed to establish irreparable harm if
relief is denied
before the legislative process had been concluded;
(e)
That 'Rule 53 does not require slavish and pointless adherence';
[7]
Mr Ferreira for the applicant argued that Rule 53 obliged the
production of the record and reasons for the recommendation to the
third respondent; the applicant was entitled to examine the record
and reasons to examine if the process was flawed. He relied
on the
description of the two stage process as unfolded in the making of
regulations in
Minister of Health and Another N.
O
v New
Clicks South Africa (Pty) Ltd and Others (treatment Action Campaign
and Another
as
amici curiae)
2006 (2) SA 311
(CC), ("New
Clicks").
[8]
As argued for the respondents, the facts in 'New Clicks' are
distinguishable on many grounds however I shall deal with the one
which
I think is relevant to these proceedings. In both matters the
Regulations were sought to be promulgated under an 'empowering
provision'
(sections
24 Act 55
of 1974 and section 22G of the
Medicines Act) respectively. As I see it, the legislative process in
'New Clicks' had been finalized
when the review application was
launched. The Regulations were promulgated in a two stage process,
being the recommendation to
the Minister by the Pricing Committee
and, the final promulgation of the Regulation into law. It was
correctly found that the process
was interlinked. If the decision to
recommend the Regulations was flawed then the whole process would be
tainted because it is
these regulations which were found to have
'direct, external legal effect' which 'adversely affected 'the rights
of pharmacists
and persons in the pharmaceutical industry'.
[9]
In this matter a review application was launched before
the two stage legislative process envisaged
by the third
respondent was finalized. Mr Burger argued that in this instance the
review application was premature and legally
incompetent in that the
legislative process engaged by the third respondent had not been
finalized. In
Doctors for Life International v Speaker of the
National Assembly end Others
[2006] ZACC 11
;
2006
(6)
SA 416
CC Ngcobo J recognized the right in a constitutional
democracy, of the public to political participation in the
legislative process.
[10]
In this instance the third respondent engaged all interested
parties by inviting them to make representations on
the
proposed Regulations before deciding to promulgate them 'in present
form, or at all'. The applicant went further by launching
an
application to protect its right to participation by applying to an
extension of time within which to lodge its representations.
The
applicant was given time to exercise such right and, it launched the
review application before it exercised its right to make
representations, which it finally did. It was argued for the
respondents that the third respondent was in tum obliged to consider
the written representations. In my view, this had to happen before
embarking on the two stage process alluded to in
New
Clicks
Supra,
to promulgate the regulations. The representations
constituted the participation by the public and inclusion by the
third respondent
of the applicant and other in the legislative
process.
[11]
The question therefore is when the legislative process has not been
completed under what circumstances would it be appropriate
to launch
review proceedings and what has the approach of our courts been. It
was held in Doctors for Life International
supra
at 446 C-E:
"The
basic position appears to be that, as
a
general matter, where
the flaw in the law making process will result in the resulting
law being invalid, courts take the view
that the appropriate time to
intervene is after the completion of the legislative process.
The
appropriate remedy is to·
have
the
resulting law declared invalid. However, there
are
exceptions to this judicially developed rule or 'settled
practice'. Where immediate intervention is called for in order to
prevent
the violation of the Constitution and the rule of law, courts
will intervene and grant immediate relief. But intervention will
occur in exceptional cases, such as where an aggrieved person cannot
be afforded substantial relief once the process is completed
because
the underlying conduct
would have achieved its object."
[12]
It is my view that even though this is a simple application to compel
the first and the second respondents, the legislative
process has not
been completed. The applicant after launching the review application
made representations to the third respondent.
I am not certain of how
many interested parties responded to the call, however the applicant
is among many other interested parties
listed in the notice. The
third respondent is therefore obliged to consider the representations
before promulgating the Regulations.
It would not be correct to
speculate or assume that the representations would not be considered
or, that the draft or proposed
Regulations would be promulgated
without change, thereby disregarding the constitutional obligations
of public participation as
was engaged by the third respondent;
Glenister v President of the Republic of South Africa and
Others
[2008] ZACC 19
;
2009 (1) SA 287
(CC) para [51].
[13]
The Regulations were finally published on 27 January 2017 thereby
completing the legislative process. It was contended by the
respondents that since the purpose of the review application was to
set aside the draft regulations, 'the final regulations render
moot
any review of the draft regulations' and I agree with this
contention. This then brings this court to consider whether the
peremptory language in Rule 53(1)(b) still obliged the Court to order
that the record and reasons be furnished. In
Jockey Club of South
Africa v Forbes
[1992] ZASCA 228
;
1993 (1) SA 639
(A) at 661 E-H Kriegler AJA
pointed out that the use of peremptory language
'cannot be
overlooked, but equally clearly it is to be understood conceptually
and contextually....".
It was not necessary to slavishly
observe the rule,;
Xhobani Security Catering and Distribution
Agency
CC
v Amathole District Municipality and Another
[2015)
JOL 32823 (ECG) The circumstances of each case will determine whether
or not there is a need 'to invoke the facilitative
procedure of the rule'. The applicants have not satisfied me that
there were exceptional circumstances or irreparable harm 'if
relief
is denied before conclusion of the legislative process. I am
therefore of the view that this application should fail.
THE
COUNTER APPLICATION
[14]
I indicated at commencement of the hearing that I would not be
dealing with the counter application and further advised
the
parties that the review application itself was not before court. It
was however argued that even though the review papers were
not before
me, technically this application was launched under the same case
number as the review application and that the applicants
have failed
to make out a case for this court to intervene in the legislative
process. I am still of the view not to deal with
the counter
application in the instance.
[15]
In the result the following order is given:
1. The
main application is dismissed with costs;
2. The
applicant is ordered to pay costs of the respondents which include
costs of two counsel;
3. No
order is made in respect of the counter application;
______________________
V.V.
TLHAPI
(JUDGE
OF THE HIGH COURT)
DATE
HEARD
:
24 APRIL 2017
DATE
DELIVERED
:
28 APRIL 2017
ATTORNEYS
FOR THE RESPONDENTS :
GELDENHUYS MALATJI INC.
ATTORNEYS
FOR THE APPLICANT
:
SCHOEMAN & ASSOCIATES
COUNSEL
FOR THE APPLICANT
:
ADV. FERREIRA, SC ADV.GOUWS
COUNSEL
FOR THE RESPONDENTS
:
ADV. BURGER, SC