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[2016] ZAGPPHC 835
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Oliviera v South African Veterinary Council (31525/2015) [2016] ZAGPPHC 835 (7 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 31525/15
Date:
7 September 2016
In
the matter between:
DR
MARIA DA GRACA
…................................................................................
APPLICANT
AZEVEDO
MENDES OLIVIERA
and
SOUTH
AFRICAN VETERINARY
COUNCIL
….............
RESPONDENT
JUDGMENT
DU
PLESSIS. AJ
INTRODUCTION:
1.
This
is a review application by the Applicant, a Veterinary Surgeon to set
aside a decision of the South African Veterinary Council
("
the Council')
that the Applicant failed her 2014 registration
examination and order the Council to register the Applicant, Dr.
Oliviera as a Veterinary
Surgeon.
2.
This
review application has its origin in an unfortunate event that
occurred on the 1st and the 2nd September 2014, when the Applicant
together with twelve other candidates wrote the Respondent's
computer-based 2014 registration examination ("CBE''), to enable
permanent residents with foreign veterinary qualifications, to
qualify for registration under the South African legislation (the
Veterinary and Para-Veterinary Professions Act, 19 of 1982
("
the
1982
Act')).
3.
Dr.
Oliviera qualified in Portugal in July 2011, and now wished to
practice in South Africa as a Veterinary Surgeon. She sat the
special
examination in 2012 and 2013, but failed. She sat the special
examination again in 2014. On 2 September 2014 she received
a written
slip (pass-slip) from the Officials of the Respondent. The pass-slip
contained a photograph of the Applicant, her name
and the words
"pass"
handwritten on the slip.
4.
Two
days later, on the 4th of September 2014, the Respondent notified the
Applicant per e-mail that:
" We would like to confirm that
you will be
attending the oral/practical examination"
and therein also provided the date and time of the oral/practical
examination. Page 2 of the e-mail contained the following note
in
bold letters:
"Note:
Only candidates who passed the CBE will be allowed to enter this
examination. Candidates will be advised once the results
of the CBE
are available."
5.
The
Applicant passed the oral/practical examination with an average of
69% and obtained a distinction of 83% in one of the panels.
However,
on 28 October 2014, the Council informed the Applicant that she
failed the SAVC 2014 Veterinary Examination. She was informed
that
the Examination Officer, Dr. Dietmar Holm, allowed her to, despite
failing the CSE examination with a result below the subminima
of 40%,
but with an aggregate mark of 50%, to take part in the oral/practical
examination. She was informed that the Council decided
subsequent to
considering all the facts and notwithstanding the fact that she may
have passed the oral examination, to adhere to
the rules pertaining
to the 2014 examination, according to which she did not pass the
examination. On 19 June 2015, she launched
these proceedings in the
Pretoria High Court for an order setting aside the Council's decision
that she did not pass the SAVC 2014
Veterinary Examination and
requiring it to register her as a Veterinary Surgeon.
6.
Dr.
Oliviera claimed in her founding affidavit that the conduct of Dr.
Holm in providing her with a so-called pass-slip and the
representation and content of the e-mail presented to her and
inviting her to sit for the oral/practical examination, created a
legitimate expectation that she had passed the CSE Examination. She
submitted that the expectation arose from the following;
(i)
that she was handed a
"pass-slip"
on 2 September
2014;
(ii)
the wording of Rule 3.16 of the Respondent's rules which provides
that:
"
There will be no redress of the CBE
results once
the practical examination commenced'
;
(iii)
that the Respondent not only allowed her to enter the practical
examination, but that she had completed the practical examination
with success;
(iv)
An e-mail dated 4 September 2014, notifying the Respondent together
with nine other candidates, per e-mail, that
" We would like
to
confirm that
you
will
be attending the oral
practical
examination." ,
and
(v)
the note that reads:
" Only candidates who passed the CBE
will be allowed to enter this examination. Candidates will
be advised once the results of the CBE are
available."
7.
The
Applicant admits that prior to writing the examination, she was
provided with the 2014 Administrative Rules of the Council.
Subsequent to her being informed that she had failed the examination,
Dr. Oliviera received a further letter from the Respondent
on 31
October 2014 and was informed by the Council, that Dr. Holm:
"did
not adhere to the examination Rule 3. 11 when, within his own
discretion, he decided to allow you to enter the oral/practical
examination."
Rule
3.11 determines:
"3.
11 Subminima requirements are as follows:
A.
Veterinary Examinations
There
are two CBE session with a subminimum of 50% in each of the session
(180 marks of each session) and a subminimum of 40% per
section
within a session. The two CBE sessions will contribute equally to a
mark for the CBE.
There
are four (4) practical/oral panels with a subminimum of 45% per
panel, and a subminimum of 50% for the whole practical and
oral/practical examination. No more than one (1) panel may be failed.
A
final combined mark of 50% is required to pass the examination and
allow registration. The final combined mark will be computed
as
follows:
CBE
component
50%
Practical
and oral/practical component
…...
50%"
8.
Dr.
Oliviera submits (and the Respondent admits) that when she received
the pass-slip on 2 September 2014 from the Respondent's
duly
authorised Officials, the results of each section of the written
examination were not provided to her. The written pass-slip
was the
only communication from the Respondent that she received on that day.
She also submits that when the pass-slip was issued
to her, she
regarded this as a reasonable, unambiguous representation, devoid of
relevant qualification, that she had indeed passed
the written part
of the CBE, that clauses 3.12 and 3.13 of the Rules of the Council
have been complied with, and that she is not
excluded from entering
the practical examination.In addition hereto, she understood from
receiving the pass-slip (so she submits),
that she need not submit
any queries or complaints arising from automatic exclusion, in
writing to the Council as referred to in
clause 3.13 of the Rules and
that she need not request in writing her performance as assessed by
the computer and/or to be allowed
to participate in the practical
examination as set out in clause 3.16 of the Rules.
Rule
3.12 determines:
"3.
12 A candidate who does not at least obtain 50% in the CBE component,
will be prevented from entering the practical examination.
No
practical roster will be issued prior to the finalisation of the CBE
component."
And
Rule 3.13 determines:
"3.13
Permission to enter the practical examination with any component
below the 40% subminimum or 50% CBE final mark, will
not be granted.
All queries or complaints arising from automatic exclusion should be
submitted in writing to the SAVC Administration."
9.
Section
24 of the Act sets out the requirements for registration in terms of
the Act and provides,
inter alia,
that a person may be
registered in terms of the Act to practice a Veterinary profession if
that person is the holder of an appropriate
degree, diploma or
certificate prescribed or accepted under Section 20 of the Act.
10.
Section
25 of the Act requires that a person desiring registration in terms
of the Act, shall apply to the Council for such registration
in the
prescribed manner and at the prescribed time and that such
application shall be accompanied by the prescribed application
fee
and prescribed documents. Registration of any such person is subject
to the provision of the Act and such further conditions
as the
Council may in each case determine.
11.
It
is common cause that Dr. Oliviera applied to the South African
Veterinary Council to be so registered and was informed by the
Veterinary Council that she has to pass their registration
examination. This Court was referred to a document attached to their
founding affidavit as Annexure "A", that informed the
Applicant that she has to pass their registration examination.
12.
The
Council in its opposing affidavit, submitted that Dr. Holm, who
provided the Plaintiff with the pass-slip, was an Examination
Officer
as defined in paragraph 5 of the Examination Rules as the Chairperson
of the Education Committee, who is responsible for
conducting the
registration examination. Paragraph 5 of the Rules describes the
Examination Officer's role as being:
"Appointed
by Council to take responsibility to ensure that a good quality and
fair examination is completed. He/she oversees
all the registration
examinations of the SAVG with the full support of the Examination
Administrators."
13.
The
Examination Officer's duties and responsibilities are then described
in the Rules, whereafter the duties and responsibilities
of the CBE
Moderators are discussed in paragraph 3 of the Rules. It is evident
that the duties of the Examination Officer and the
Moderators include
the requirement to calculate a candidate's marks in accordance with
the provisions of the Examination Rules.
Only once that has been
done, can the Examination Officer and the Moderators determine if a
candidate has qualified to be allowed
entrance into the
oral/practical examination. It is furthermore common cause that the
Examination Officer, after obtaining the
marks from the
oral/practical examination, submits the examination results and a
report to the SAVC Education Committee, which
Committee in turn makes
a recommendation to the full council regarding those results.
14.
Despite
the submissions of the Applicant, it is evident that the duties of
both the Examination Officer (Dr. Dieter Holm) and the
Moderators,
are clearly circumscribed and does not afford either Dr. Holm or the
Moderators a discretion.
15.
From
the affidavit of the Respondent, it appears that the Examination
Officer, Prof. Holm and the Moderators, met after the CBE
and found
that only one candidate qualified for entry in the oral/practical
examination by achieving more than 50% minimum requirement
for each
session, as well as more than 40% for each section, in accordance
with the Examination Rules. The Respondent admits that
the Applicant
was not provided with the actual results of each section of the CBE
on 2 September 2014, but does submit that subsequent
to her being
allowed to take part in the oral/practical examination, it was
established that the Applicant did not comply with
the requirement
that a subminimum of 40% be achieved in each subsection of the CBE,
and more particularly, in that she obtained
only 27% for the
subsection of Epidemiology.
16.
The
Respondent submits that it was not the Respondent who issued the
pass slip to the Applicant, but that this was done by
the
Examination Officer, Dr. Dieter Holm and that this decision of the
Examination Officer (to condone the Applicant despite not
achieving
the subminimum of 40% in the subsection Epidemiology) was
ultra
vires
the ExaminationRules,
ultra
vires
the scope of the powers of the Examination Officials, it remains
factually correct that the Applicant did not comply with the required
subminimum in respect of this subsection Epidemiology.
17.
The
Examination Officer Dr. Holm assumed that he had a discretion to
allow additional candidates access to the oral/practical examination
pending acceptance of a recommendation to Council via the Education
Committee. Dr. Holm had to concede and acknowledged that the
decision
was not in line with the Examination Rules and was subject to later
ratification by the Council. Dr. Holm specifically
relied in this
regard on the fact that he had, prior to each CBE session,
pertinently informed the candidates that they must not
make enquiries
as to whether they had passed or failed until the Council had made a
final decision regarding the examination results
at its meeting on 21
to 22 October 2014.
18.
The
Respondent submitted that the word
"pass"
that was
written on the slip, cannot be used to convey that the candidate had
successfully completed the examination in accordance
with the
Examination Rules, as, so the argument goes, a matter of established
fact, they had not complied with all requirements
and, secondly, the
decision was still subject to ratification by the Council.
19.
The
Respondent, however, concedes that this qualification was not
conveyed to the Applicant (or to any other candidate for that
matter)
and also that the results of the CBE were not provided to the
candidates, including the Applicant, when they were provided
with the
pass-slip.
20.
Although
the Applicant alleges that the decision to exercise a discretion and
allow the Applicant to sit for the oral/practical
examination despite
not attaining the subminima of 40% in one of the subjects, was not
the decision of the Examination Officer
Dr. Holm alone, but was a
joint decision of the Examination Officer and the Examination
Officials, this in itself does not justify
the amending of the Rules.
The Respondent makes it clear that neither the Examination Officer
nor the Examination Officials, had
the authority or the discretion to
amend the Examination Rules.
21.
It
appears that Dr. Holm sought to rely on a practice that apparently
existed in 2012, in which candidates was allowed into the
practical
examination with average CSE marks of between 46% and 49%, where the
minimum was 50%. The Respondent submitted that in
2012, three
candidates were allowed to proceed to the oral/practical examination,
with two of the candidates having a 46% average
and one candidate
having a 49% average for paper one of the CSE. These facts were
however not disclosed to the Applicant prior
to her sitting for any
of the exams, nor was she aware of these facts prior to or
immediately subsequent to having completed the
oral examination.
22.
Subjectively,
this in itself could not be a basis for a legitimate expectation. The
question still remains whether the conduct of
Prof. Holm in passing
the Applicant in the CSE and the subsequent passing of the
oral/practical examination, gave rise to a legitimate
expectation.
23.
The
requirements relating to the legitimacy of the expectation upon which
an Applicant may rely, were referred to and discussed
by Heher J in
N
ational
Director of
Prosecutions
v
Phillips and Others
2002
(4) SA 60
(W) at para
2
8:
"
The Law does not protect every expectation but only those which are
'legitimate'. The requirements for legitimacy of the
expectation,
include the following:
(i)
The representation
underlying the expectation must be
'clear, unambiguous and
devoid of relevant qualification':
de
S
mith,
Woolf and Jowell (op cit)
(Judicial Review Of
Administrative Action 5th
edition[ at 425 para
8-055)
.
The requirement
is a sensible one. It accords with the principle of fairness
in public administration, fairness both to the administration and the
subject. It protects Public Officials against the risk that their
unwitting ambiguous statements may create legitimate expectation.
It
is also not unfair to those who choose to rely on such statements. It
is always open to
them to seek clarification before
they do so, failing which they act at their
peril.
(ii)
The expectation must be reasonable:
Administrator,
Transvaal v Traub (supra) {1989
(4)
SA
731 (A)l at 756 1
-
757
B; de
Smith, Woolf and Jowell (supra) at 417 para
8
-037.
(iii)
The representation must have been induced by the decision
maker:
de Smit. Woolf and Jowell (op cit) at 422 para
8-050;
Attorney
General
of
Hong
Kong v
Ng Yuen
Shiu
[
1983]2
All
ER 346 (PC) at
350
h
-
i
.
(iv)
The representation must be one which it was competent and
lawful for the decision maker to make, without which the reliance
cannot
be legitimate:
Haupfleisch v
Caledon
Divisional Council
1963 (4) SA
53
(C) at
59
E
-
G
."
24.
The
above principles were also supported by the decision in
President
of
the
Republic of South Africa and Others v
South African Rugby Football Union andOthers
2000 (1)
SA 1
(CC) at para 216,
referring to the reasonableness
requirement, and stating that the question is more than the factual
question, whether an expectation
exists in the mind of a litigant,
"but
whether, viewed objectively, such
expectation is, in a legal sense,
legitimate."
25.
Subjectively,
the Applicant relies on the pass-slip and the submission in the
subsequent e-mail, that she would not be allowed to
sit for the
oral/practical examination, unless she had passed the CBE. She,
however, does admit that she had knowledge of the Rules
of
Respondent, including the Rule 3.15, that reads:
"Council
does not accept responsibility for incorrect information obtained
from unauthorised persons on examination arrangements
and/or results.
All enquiries must be made directly to the SAVG Administration. The
results will only be made known once ratified
by Council."
26.
There
is no doubt that Dr. Holm and the Examination Officers acted beyond
the scope of their powers, when they submitted to the
candidates,
including the Applicant, that they had
"passed'
and as
such, were allowed to sit for the oral/practical examination. Dr.
Holm specifically confirm in his affidavit attached to
the answering
affidavit of the Respondent, that:
"
The decision taken on 2 September 2014 was conditional upon the
approval and ratification thereof by the Respondent at its
meeting
scheduled for 21 and 22 October 2014."
This
similarly confirms that it was not disclosed to the affected
candidates including the Applicant, that the decision was
conditional.
He then provides certain reasons therefore. But he also
submits that prior to the examination the candidates were informed
that:
"
The fact that all candidates were made aware also by virtue of the
pre-examination briefings I had given on both 1 and 2
September 2014,
that no results were final until they had been ratified by the full
Council."
27.
The
above dictum of Heher J excludes the possibility that an expectation
can be regarded as legitimate when the public authority
that makes
the representation, acts beyond the scope of its powers.
28.
Given
the availability of the Rules of the Respondent and the particular
reference to the final adjudication of the passing of the
candidate
by the Council, the Applicant could not reasonably rely on the lack
of knowledge that the Examination Officers' decision
to provide her
with a pass-slip, was a conditional decision taken outside the
parameters of the Rules of the Respondent.
29.
The
expectation of the Applicant does not meet criteria (i) in
National
Director
of Public Prosecutions 2002 supra.
I have, in
this regard, already referred to the nature of the pass-slip as well
as the wording of the
"note"
in the subsequent
e-mail inviting the Applicant to sit for the oral/practical
examination above, but it cannot be said that the
representation of
the Respondent is devoid of qualification. Dr. Holm confirms this and
I have referred to his pre-examination
briefing above.
The
expectation of the Applicant therefore also does not meet criteria
(ii), i.e. that her expectation was reasonable and furthermore,
her
expectation fails to meet criteria (iv). Prof. Holm was not competent
to read a discretion into the Respondent's Rules to make
a lawful
decision and as such, the reliance on the decision cannot be
legitimate.
30.
Cameron
JA, in
South African Veterinary Council and Another v
Szymanski
2003 (4) SA 42
(SCA) on 50 B
-
D
,
remarks:
"[21)
It is worth emphasising that the reasonableness of the expectation
operates as a pre-condition to its legitimacy. The
first question is
factual - whether in all the circumstances the expectation sought to
be relied on is reasonable. That entails
applying an objective test
to the circumstances from which the Applicant claims the expectation
arose. Only if that test is fulfilled,
does the further question -
whether in public Jaw the expectation is legitimate - arise."
It
cannot be said that the expectation of the Applicant was reasonable
under the circumstances. The Applicant was never informed
that she
passed the Veterinary Examination as meant within the Rules of the
Respondent. On the contrary, on 28 October 2014, the
Respondent
notified the Applicant that the Respondent decided on 21 to 22
October 2014, that she had failed the SAVC 2014 examination.
This
decision was entirely within the parameters of the Rules of the
Respondent.
31.
The
complaint of the Applicant that she was not afforded a proper
opportunity to make representations to the Respondent prior to
the
decision, currently on review, can also not be decided in favour of
the Applicant. Subsequent to the communication to the Applicant
that
she failed the examination, the Applicant, through her legal
representatives, made representations to the Respondent on 30
January
2015 and again on 16 February 2015. It is common cause that the
issues raised by the Applicant in these representations,
were fully
debated at the full Council meeting of the Respondent held on 10 and
11 February 2015. It was only subsequent hereto
that the Applicant
was informed that the Council remains with their decision that she
failed the 2014 SAVC Examination. She and
the other affected
candidates who had not passed the 2014 examination, were granted the
opportunity to rewrite the full examination
in 2015, without having
to pay the examination fee. The Applicant did not make use of this
offer.
32.
In
the premises, I make the following order:
The
application is dismissed with costs.
__________________
DU
PLESSIS AJ
Case
number
: 31525/15
Matter
heard on
: 9 May 2016
For
the Applicant
...............................
:
Adv J Rust
Instructed
by
......................................
:
A.V. Theron & Swanepoel
For
the Respondent
….....................
:
Adv CH van Bergen
Instructed
by
.....................................
:
Ric Martin Incorporated
Date
of Judgment :
7 September 2016