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[2017] ZAGPPHC 453
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De Vries Ambulance Academy (Pty) Ltd v Professional Board for Emergency Care and Another (93357/2016) [2017] ZAGPPHC 453 (28 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
93357/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
DE
VRIES AMBULANCE ACADEMY (PTY)
LTD
APPLICANT
AND
THE
PROFESSIONAL BOARD FOR
EMERGENCY
CARE
FIRST
RESPONDENT
THE
HEALTH PROFESSIONS COUNCIL
OF
SOUTH
AFRICA
SECOND
RESPONDENT
JUDGMENT
THOBANE
AJ,
Introduction
[1]
On 30 March 2017 Tolmay J gave an order in the following terms;
1. It is declared that
the application is urgent and the applicant's failure to comply with
the Rules of Court is condoned;
2. The resolution by the
first respondent dated 10 March 2017 to withdraw the accreditation of
the applicant with the second respondent
to offer education and
training to Basic Ambulance Assistants is stayed pending:
(a) the finalization of
the review application under case no 93357/2016 and
(b) the finalization of a
further review application to be issued by the applicant pertaining
to the resolution of 10 March 2017
taken by the respondents within 20
days following this order,
(c) after the review
application referred to in par 2 supra has been instituted provisions
of Rule 33 will be complied with by the
applicant and respondent,
(d) should the applicant
not comply with the order as set out in par 2 hereof the interim
order will lapse,
(e) the second respondent
shall pending the finalization of the review application referred to
in par 2 above continue to register
students who completed the
necessary basic ambulance assistance courses with the applicant but
subject to the provisions of section
17 of the Health Profession Act
5 of 1974,
(f)
the first and second respondent are ordered to jointly and severally
the one paying the other to be absolved to pay the costs
of this
application.
[2]
After the above order was granted, the respondents launched an
application for leave to appeal same. The current application
is for
an order that pending the application for leave to appeal, or an
appeal, the order of Tolmay J remain effective. This application
therefore is in terms of the provisions of sections 18(1) and (3) of
the Superior Courts Act, 1o of 2013.
Parties
[3]
The applicant is a private company duly registered in terms of the
company laws of the Republic of South Africa and conducts
amongst
others, education and training of emergency service personnel. The
applicant has been providing such education and training
for over 22
years.
[4]
The first respondent is the Professional Board for Emergency Care
established in terms of the Health Professions Act, no 56
of 1974,
one of its functions, amongst others, is to give accreditation to
centers that offer training of Basic Ambulance Assistants.
Applicant
offers such training.
[5]
The second respondent is the Health Professions Council of South
Africa, a statutory body established in terms of section 2
of the
Health Professions Act. No remedy is sought against the second
respondent. The second respondent therefore is cited for
the interest
it may have in the outcome of the application.
Background
[6]
There is a long history to the matter, which history is punctuated by
amongst others, engagements, evaluations and negotiations
between the
parties as well as exchange of correspondence. The following summary
places the matter into better perspective;
6.1 For over 22 years the
applicant .had been providing training of Basic Ambulance Assistants.
The first respondent contends that
the applicant's training of
emergency personnel does not meet certain minimum requirements or
that the lecturing staff do not have
requisite qualifications ;
6.2 The first respondent,
as a result, took certain resolutions which the applicant was
aggrieved at;
6.3 The applicant
launched an application to review the decisions taken by the first
respondent. Those review proceedings are pending
in this court;
6.4 While the review
application was pending, on 10 March 2017, the first respondent took
a decision to withdraw accreditation of
the applicant with the second
respondent. The withdrawal meant that the applicant could not train
Basic Ambulance Assistants·
6.5 The applicant
subsequent to the withdrawal of the accreditation, launched an urgent
application which culminated in the order
of Tolmay J, mentioned
above;
6.6 The first respondent
on 3 April 2017 filed an application for leave to appeal the order of
Tolmay J;
6.7 The applicant is now
before this court on an urgent basis seeking an order that the order
of Tolmay J not be suspended.
Urgency
[7]
The thrust of applicant's counsel on urgency is that since TolmayJ
found that the matter was urgent, and in light of the history
of the
matter as well as she the reasons advanced by the first respondent
disputing urgency, namely, that urgency is self created
and given the
fact that such advanced reasons having been rejected by Tolmay J, it
follows, he submitted, that urgency still prevails.
[8]
The first respondent disputes urgency and contends that since the
reasons, which have been since requested, why the matter was
found to
be urgent by Tolmay J are not known, no reliance can be placed on her
finding that the matter is urgent. He contends that
urgency of this
matter isa stand alone and should be evaluated as such. It is further
disputed that on the common cause facts urgency
can be inferred.
Counsel further argues that the closing down of the applicant thus
prejudicing prospective students, will not
eventuate in that the
applicant can still employ suitably qualified staff, requalify
or retrain the current contingent and
also that applicant has other
sources of revenue.
[9]
Before delving into merits, urgency ought to be settled first.
Urgency is regulated by rule 6(12) of the Uniform Rules of Court.
Particularly Rule 6(12)
(b)
which provides as follows,
"(b)
In every
affidavit or petition filed in support of any application under
paragraph (a) of this subrule, the applicant shall set
forth
explicitly the circumstances which he avers render the matter urgent
and the reasons why he claims that he could not be afforded
substantial redress at a hearing in due course."
The
applicant therefore, in light of the aforementioned provisions, must
do two things. Firstly, applicant must disclose circumstances
which
in its view, render the matter urgent and secondly, advance reasons
why applicant contends it will not be afforded substantial
redress at
a hearing in due course.
[10]
The order of Tolmay J in the circumstances of this case is
instructive, for it says that the resolution of 10 March 2017, which
resolution seeks to withdraw applicant's accreditation, is stayed on
certain conditions. The order states in para 2 as follows;
"2
. The
resolution by the first respondent dated 10 March 2017 to withdraw
the accreditation of the applicant with the second respondent
to
offer education and training to Basic Ambulance Assistants is stayed
pending:
(a)................
(b)................
(c)................
(d)................
(e) The second
respondent shall pending the finalization of the review application
referred to in par 2 above continue to register
students who
completed the necessary basic ambulance assistance courses with the
applicant but subject to the provisions of section17
of the Health
Professions Act 56 of 1974."
From
the aforegoing it is self evident that the main purpose of the order
was to keep operations of the applicant going while the
review
application was being considered. To the extent that the applicant
must state factors which render the matter urgent, I
am satisfied
that this requirement is met.
[11]
On substantial redress Notshe AJ in
East Rock Trading 7 (Pty) Ltd
v Eagle Valley Granite (Pty) Ltd and Others {2012] JOL 28244 (GSJ)
para7 said the following;
"It is important
to note that the rules require absence of substantial redress. This
is not equivalent to the irreparable harm
that is required before the
granting of an interim relief It is something less. He may still
obtain redress in an application in
due course but it may not be
substantial. Whether an applicant will not be able to obtain
substantial redress in an application
in due course will be
determined by the facts of each case."
Since
the order of Tolmay J arrests the shutting of the applicant's doors,
it seems to me easy to conclude that whereas there might
be redress
in due course, in the form of employing new teachers or re-qualifying
the current ones, as argued by counsel for the
first respondent, in
my view such redress will not be substantial as contemplated in the
rule in that it is devoid of any immediacy.
[12]
I am therefore of the view that the matter is sufficiently urgent to
be enrolled and heard as such.
The Superior Courts Act,
10 of 2013
[13]
This application is brought in terms of section 18 of the
aforementioned Act. The section provides as follows;
"18.
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the decision
of
the application or appeal.
(2). Subject to
subsection (3), unless the court under exceptional circumstances
orders othe11Nise, the operation and execution
of a decision that is
an interlocutory order not having the effect of a final judgment,
which is the subject of an application
for leave to appeal or of an
appeal, is not suspended pending the decision of the application or
appeal.
(3) A court may only
order otherwise as contemplated in subsection (1) or (2), if the
party who applied to the court to order otherwise,
in addition proves
on a balance of probabilities that he or she will suffer irreparable
harm if the court does not so order and
that the other party will not
suffer irreparable harm if the court so orders."
[14]
In light of what the law provides, the applicant is enjoined to
establish that there are exceptional circumstances and in addition
show that it will suffer irreparable harm if the relief sought is not
granted on one hand and that the respondents, on the other
hand, will
not suffer irreparable harm.
[15]
What the applicant contends are exceptional circumstances can be
summarized as follows;
15.1 Its period of
existence namely 22 years, during which training had always been
offered;
15.2 That in the event
the order is not made effective, it will be forced to close shop and
that job losses will follow;
15.3 That current and
prospective students will be prejudiced;
15.4 That constitutional
rights of not only the applicant but also its employees and students
will be harmed.
15.5. That the order of
Tolmay J would be rendered nugatory if the suspension is not
directed.
Applicant relied inter
alia on excerpts from
lncubeta Holdings and Another v Ellis and
Another
2014 (3) SA 189
(GSJ)
,
in arguing that the
merits of the matter are at this stage of the proceedings not
pertinent and also that the plight of the victor
is all that is
required (paragraph 28 of the judgment). Such an approach is correct
because every application is to be dealt with
on its own facts and is
therefore case specific.
[16]
Counsel for the first respondent was of the view that the exercise of
showing the existence of exceptional circumstances required
examination of the facts. In saying so he also relied on
lncubeta
Holdings and Anotherv Ellis and Another
(supra). I pause to
indicate that counsel for the applicant relied on paragraph 26 of the
same judgment in making the point that
the merits should not come
into reckoning. Paragraph 26 reads as follows;
[26] I have made no
reference to the 'merits' of the case which resulted in the
interdict. In my view they are not pertinent to
this kind of enquiry
The considerations that are valuable pre-suppose a bona fide
application for leave to appeal or an actual
appeal. No second
guessing about the judgment per se comes into reckoning."
He
argued with reference to the facts of this case, that the applicant
has proven none and that even if the withdrawal of accreditation
were
to result in the closure of the applicant, it did not get elevated to
being exceptional circumstances in that the applicant
through its
conduct caused the withdrawal of accreditation.
[17]
For purposes of obtaining an order that the order of Tolmay J
remain in place, the applicant must show that it will suffer harm and
that the respondents will suffer none. Counsel for the first
respondent states that the respondents exercise a regulatory function
and that if the order of Tolmay J is made operational, its regulatory
function would be impaired. In the result the rule of law
would be
negatively impacted on and there would be encroachment on another
sphere of government, something which the courts have
warned should
be avoided. Counsel in support of the above contentions relied on
National Treasury and Others v Opposition to Urban Tolling
Alliance and Others
2012 (6) SA 223
(CC);
particularly the
following paragraphs;
''[65] When it evaluates
where the balance of convenience rests a court must recognise that it
is invited to restrain the exercise
of statutory power within the
exclusive terrain of the Executive or Legislative branches of
Government. It must assess carefully
how and to what extent its
interdict will disrupt executive or legislative functions conferred
by the law and thus whether its
restraining order will implicate the
tenet of division of powers. Whilst a court has the power to grant a
restraining order of
that kind, it does not readily do so except when
a proper and strong case has been made out for the relief and, even
so, only in
the clearest of cases.
[66] A court must
carefully consider whether the grant of the temporary restraining
order pending a review will cut across or prevent
the proper exercise
of a power or duty that the law has vested in the authority to be
interdicted. Thus courts are obliged to recognise
and assess the
impact of temporary restraining orders when dealing with those
matters pertaining to the best application, operation
and
dissemination of public resources. What this means is that a court is
obliged to ask itself not whether an interim interdict
against an
authorised state functionary is competent but rather whether it is
constitutionally appropriate to grant the interdict."
[18]
On the facts of this case, the practical effect of the order
of Tolmay J is to keep the operations of the applicant going while an
outcome of the review application is awaited. The launching of an
application for leave to appeal defeats the effect of the said
order.
I agree with the contention of the applicant's counsel that the
application for leave to appeal renders the order nugatory.
The
solution advanced on behalf of the first respondent to show that
permanent closure of the applicant need not eventuate namely;
that
the applicant can retrain its staff, temporarily employ suitably
qualified staff and focus on other areas of training it offers
and
not only the training of Basic Ambulance Assistants, does not, in my
view, obviate the practical effect of the order. The question
therefore is whether exceptional circumstances have been shown to
exist and also whether there is absence of irreparable harm to
the
respondents on one hand and the presence of irreparable harm to the
applicant, on the other.
[19]
The concept of exceptional circumstances has been a subject of
our courts fora considerable period of time. Mpati P
in
Avnit
v First Rand Bank Ltd (20233/14)
[2014]
ZASCA 132
(23 September 2014)
and in an endeavour to
trace the the origins of the concept had the following to say with
regards thereto;
''[4] The term
'exceptional circumstances' is one that has been used in various
different statutory provisions in varying contexts
over many years.
It was first considered by this Court in the context of its power in
exceptional circumstances to direct that
a hearing be held other than
in Bloemfontein. The question arose in
Norwich
Union Life
Insurance Society v Dobbs
1912 AD 395
,
where Innes ACJ said at
399:
'The question at once
arises, what are "exceptional circumstances"? Now it is
undesirable to attempt to lay down any general
rule. Each case must
be considered upon its own facts. But the language of the clause
shows that the exceptional circumstances
must arise out of, or be
incidental to, the pat1icular action; there was no intention to
exempt whole classes of cases from the
operation of the general rule.
Moreover, when a statute directs that a fixed rule shall only be
depat1ed from under exceptional
circumstances, the Cout1, one would
think, will best give effect to the intention of the Legislature by
taking a strict rather
than a liberal view of applications for
exemption, and by carefully examining any special circumstances
relied upon. '
[5]
Later cases have likewise declined any invitation to define
'exceptional circumstances' for the sound reason that the enquiry
is
a factual one.2 A helpful summary of the approach to the question in
any given case was provided by Thring Jin
MV Ais Mamas Seatrans
Maritime v Owners, MV Ais Mamas, and another
2002 (6) SA 150
{C)
where he said:
'1. What is ordinarily
contemplated by the words 'exceptional circumstances' is something
out of the ordinary and of an unusual
nature; something which is
excepted in the sense that the general rule does not apply to it;
something uncommon, rare or different:
'besonder', 'seldsaam',
'uitsonderlik', or 'in hoe mate ongewoon'.
2. To be exceptional the
circumstances concerned must arise out of, or be incidental to, the
particular case.
3. Whether or not
exceptional circumstances exist is not a decision which depends upon
the exercise of a judicial discretion: their
existence or otherwise
is a matter of fact which the Court must decide accordingly
4. Depending on the
context in which it is used, the word 'exceptional' has two shades of
meaning: the primary meaning is unusual
or different: the secondary
meaning is markedly unusual or specially different.
5. Where, in a statute,
it is directed that a fixed rule shall be departed from only under
exceptional circumstances, effect will,
generally speaking, best be
given to the intention of the Legislature by applying a strict rather
than a liberal meaning to the
phrase, and by carefully examining any
circumstances relied on as allegedly being exceptional.'"
[20]
In casu, the presence or absence of exceptional circumstances
is contested terrain. The predicament that the applicant finds
itself,
in the event the order of Tolmay J is not made effective, is
that it will be forced to shut down the training of Basic Ambulance
Assistants or as the first respondent argued, not be operational for
a period of about nine months while it rearranges its operations,
which will include the retraining of staff. That the applicant would
have to do that after 22 years of uninterrupted service, is
out of
the ordinary. Moreover, the parties are awaiting a date of hearing of
the application for leave to appeal. As at the hearing
of this urgent
application, the date of hearing of the application for leave to
appeal had not been set, and TolmayJ had not advanced
any reasons for
her order. It is cold comfort therefore that the first respondent
suggests that the risk that the applicant stands
to run is the
retraining of its staff which may take approximately nine months,
while the said nine months is not even guaranteed.
Inherent in the
first respondent's reply to the contention that the applicant will
have to contemplate closing down, is an unintended
acknowledgement
that the applicant stands to suffer harm and that such harm, from the
first respondents' point of view, can be
mitigated.
[21]
The first respondent exercises regulatory functions and one
must ask if this matter is one of those rarest of cases where the
court
deviates from what is the norm, thus keeping the order of
Tolmay J effective. The fact that in the event the order is not made
operational applicant's operations will be affected, is a singular
most convincing factor for this court to get involved. For it
is
precisely what the order of Tolmay J sought to prevent. I am mindful
of the fact that the court should intervene only in the
most rarest
of cases and that whenever it does so, it is after a period of
thorough reflection and caution. I am not dismissive
of the
statutorily conferred powers of the first respondent to regulate the
applicant. However, the fact that the first respondent
for over a
period of six years did not exercise the regulatory function it
always could have, during which time the applicant conducted
its
operations, suggests that harm, on the part of the respondents, from
a regulatory point of view is absent. On the flip side,
if the order
is not suspended, applicant will need to deploy financial and other
resources to capacitance its staff. That this
will need to happen and
that it has financial implications is not in dispute. This in my view
is sufficient to make a finding that
exceptional circumstances, on
the facts of this case are present.
[22]
I am accordingly of the view that the application must
succeed.
[23]
I therefore make the following order:
1. That pending the
respondents' application for leave to appeal, or an appeal (in the
event leave to appeal is granted), the order
of Tolmay J, dated 30
March 2017, shall remain effective;
2. That the respondents
are directed to pay the costs of the application jointly and
severally, which costs are to include costs
consequent upon the
employment of two counsel.
_______________
SA THOBANE.
ACTING JUDGE OF THE HIGH
COURT
APPEARANCES
Heard :
25 April 2017
Delivered :
28 April 2017
Counsel
for Applicant :
Adv. AC Ferreira SC,
Adv.
SG Gouws
Counsel
for 1st Respondent :
Adv. D Berger SC, Adv. T Manchu