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[2015] ZAKZDHC 16
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Ssufya v Health Professions Council of South Africa and Others (3342/2013) [2015] ZAKZDHC 16 (19 February 2015)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 3342/2013
In
the matter between:
AADEL
RAMADAN
SSUFYA
.........................................................................................
APPLICANT
and
HEALTH
PROFESSIONS COUNCIL OF
SOUTH
AFRICA
..............................................................................................
FIRST
RESPONDENT
MEDICAL AND
DENTAL PROFESSIONS
BOARD
.........................................................................................................
SECOND
RESPONDENT
UNIVERSITY
OF
KWAZULU-NATAL
.......................................................
THIRD
RESPONDENT
JUDGMENT
Delivered
on : 19 February 2015
OLSEN
J
[1]
This judgment determines a question of costs, which is all that
remained after the claim made in the present application became
moot.
In my view the claim ceased to have practical significance in
April 2013 when, by consent and within twelve days of
the launch of
the application, interim relief was granted in terms which had final
effect. At that stage only the founding
papers had been lodged.
If I misinterpret the interim order of April 2013 (which had been
granted in the precise terms sought finally
in the application), then
the issues underlying the claim became entirely hypothetical on 31
December 2013 when the operation of
the interim relief ceased by
effluxion of time. At that stage answering papers had been delivered,
that having been done in July
2013. A replying affidavit then
followed in April 2014.
[2]
The matter was argued before me in February 2015. Unsurprisingly
almost all of the argument was directed at the question as
to who was
right in the first place. Whilst I was requested to decide the
case “on broad general lines” (see
Jenkins
v SA Boiler Makers, Iron and Steel Workers and Ship Builders Society
1946 WLD 15
at 17-18), the argument, which took some hours,
nevertheless traversed the case and the papers (the latter much
amplified after
April 2013) in some detail, as the question of
success cannot be regarded as insignificant when considering where
the burden of
the costs of litigation should lie.
[3]
In the result the costs now in issue exceed those at stake in April
2013 (or for that matter in December 2013) by a considerable
margin;
the increase since then must be measured in multiples. This is
a wholly unsatisfactory state of affairs. It is one
which should have
been avoided by compromise. However the costs of the
proceedings constituted a justiciable issue from the
moment the
application was launched. An order that each party should pay
his/its own costs, made merely as a mark of displeasure
at the court
time and resources taken up to resolve an issue which the parties
should have resolved themselves, might in this case
be regarded as an
arbitrary deprivation of rights to have justiciable disputes
resolved, as promised by s34 of the Constitution.
I accordingly
propose to deal with the case as it was presented to me, without
thereby suggesting that, given our law and practice
regarding costs,
and the court’s discretion with respect to them, there are not
circumstances in which litigation concerning
only its own costs
should be discouraged by denying both parties the victory each
seeks.
[4]
The applicant, Dr A R Ssufya, is a Libyan National. The Health
Professions Council of South Africa and the Medical and
Dental
Professions Board, respectively the first and second respondents,
stand together, and I will refer to them as the “respondents”.
The University of KwaZulu-Natal is the third respondent. It
delivered a notice to abide the decision of the court.
I will
refer to it as the “university”.
[5]
The applicant qualified as a medical practitioner in Libya. He
graduated from the University of Tripoli in February 1999
and
completed his internship in April 2000. In 2009 he decided to
apply to the university for admission for the purpose of
postgraduate
studies in the field of neurology. The university accepted his
application upon the basis that he would be engaged
as a postgraduate
supernumerary registrar in a four year study programme at the Inkosi
Albert Luthuli Central Hospital in Durban.
The Department of
Health endorsed the applicant’s request for admission to the
university, his unpaid engagement in that
regard for postgraduate
study purposes to be for the period 1
st
January 2010 to 31
st
December 2013.
[6]
To be employed in a hospital in South Africa a doctor must be
registered appropriately under the Health Professions Act, 1974,
and
there are regulations which govern especially the registration of
persons who hold qualifications not prescribed for registration.
The regulations appear in Government Notice R101 published on 6
February 2009. Regulation 2(6) is the applicable one.
It
provides as follows.
“
The
registrar may register a foreign qualified person in the category of
postgraduate study in any of the professions registered
under the
Act, if such a person holds a foreign qualification and is to be
enrolled for postgraduate study and/or research as the
holder of an
appointment which is of a temporary and supernumerary nature for a
period not exceeding 5 years.”
[7]
The applicant applied for such registration, submitting the requisite
documents, and it was granted. In about February
2010, he was
provided with a Certificate of Registration which recorded his
registration as a medical practitioner in the
category “Postgraduate
Study University of KwaZulu-Natal” from 1
st
January 2010 to 31
st
December 2010. The applicant’s registration would
obviously have to be renewed, as the course of study to which he
had
been admitted was to endure for 4 years.
[8]
It is not clear why the certificate did not initially cover the
period 1
st
January 2010 (when the study period began) to 31
st
March 2011, given that the respondents’ registration year runs
from 1
st
April in one year through to 31
st
March in the next year. Be that as it may, in about April 2010
the respondents issued an invoice to the applicant reflecting
his
registration fees for the year 1
st
April 2010 to 31
st
March 2011, and that they had been paid. Accompanying that
invoice was a card reflecting the applicant’s registration
as a
medical practitioner in the category “Postgraduate Study
University of KwaZulu-Natal” valid for the period 1
st
April 2010 to 31
st
March 2011. Thereafter, and on notification that renewal fees
for subsequent years were required, the applicant paid fees
for what
are called the 2011 and 2012 years (running in each case from 1
st
April in the named year to 31
st
March in the next); and submitted to the university’s
postgraduate administration on each occasion a letter from the head
of the Department of Neurology for onward transmission to the
respondents. On each occasion he received an invoice from the
respondents reflecting the registration fee and the fact that it had
been paid, and a similar registration card reflecting his
registration as a medical practitioner in the category referred to
above. The respondents deny that the letters from the
head of
the Department of Neurology were forwarded to them, but nothing was
made of it at the time.
[9]
On 17 January 2013 the applicant received a text message from the
respondents advising him that his annual fee reminder had
been posted
and that his fees for the 2013 year would have to be paid by 1
st
April 2013. But on 23
rd
January 2013 the postgraduate administrator at the university advised
the applicant that a member of the second respondent’s
staff
had informed her over the telephone that the applicant was not
registered as a medical practitioner and that he would have
to cease
his clinical work forthwith and would have to re-apply for
registration from “scratch”. It was reported
to the
applicant that the reason given was that the respondents had not
received letters of request for extension of the applicant’s
training from the university. The dean of the School of
Clinical Medicine at the university, Professor R.H. Hift, took up
the
matter. He wrote to the respondents saying that the applicant was
paid up and registered and had the certificate and cards
to prove
it. He undertook to check the university records to see whether
there were letters of request for extension outstanding
and to
rectify it if this was the case. The letter continued as follows.
“
He
[the applicant] is now in his 4th year of training, and are about to
write exams. To suspend training for 6 months while
following
due process for registering from the start makes no sense. May
I please appeal to you to ensure that his current
registration is
confirmed. If you have further requirements, such as
retrospective requests for extension, I will comply
immediately.
The matter is urgent since they have clinical responsibilities:
apart from their academic needs, they
provide vital service to our
patients in the hospitals and their suspension will result in a
threat to patient care.”
[10]
A few days later Professor Hift addressed the respondents again,
referring to the issue to the applicant of annual certificates
of
registration (the reference ought more accurately to have been to
registration cards) clearly stating that the applicant had
been
registered for the relevant year. He also referred to an email which
the applicant had by then received stating that these
registration
cards were the products of a so-called system error. Professor
Hift complained that a practitioner in the position
of the applicant
would believe that his registration was up to date and that it is
unfair to hold a practitioner responsible for
errors made by the
first respondent. Professor Hift asked that the applicant’s
registration be re-activated without
delay, and that a negative
response to the request should come from the President of the first
respondent or the Chair of the second
respondent as it may well have
to be “contested in court or via the Public Protector”.
[11]
The content and tone of these communications from Professor Hift
reveal a high state of anxiety. Not much imagination need
be employed
in order to assess the state of mind generated in the applicant once
he came to understand the implications of the
stance which had been
adopted by the respondents.
[12]
Ms Meintjes replied to Professor Hift’s emails on behalf of the
respondents. On 30 January 2013 she recorded that
it is the
practitioner’s responsibility to ensure that his registration
is extended on an annual basis and that this requires
not only the
payment of a fee but a letter of request from the practitioner as
well as a letter of support from the Dean.
She recorded that
the first respondent would only be “in a position to confirm
the one year of registration as indicated
on his registration
certificate (1 January 2010 to 31 December 2010)”. She
said that the applicant would have to reapply
for registration
“indicating the reasons for non-registration”. The matter
would then be tabled at the next meeting
of the sub-committee.
[13]
Professor Hift was not satisfied and responded reiterating what he
had already said. In the face of that Ms Meintjes
referred in
reply to a letter allegedly provided to the applicant upon his
initial registration which clearly indicated, she said,
that
registration for supernumerary posts would only be made for periods
of 12 months at a time, that an application for extension
would have
to be accompanied by a full motivation from the Dean of the Faculty,
and that payment of annual fees without a formal
application would
not “imply” that registration had been extended.
Professor Hift asked for a copy of the
letter said to have been
supplied to the applicant upon his initial registration and was
apparently sent one under cover of an
email dated 4
th
February 2013. The applicant stated in his founding papers that
he had never received such a letter with his initial registration
certificate and that indeed, at the time his application was
launched, he still had not seen the document. I will deal
with this dispute a little later.
[14]
At the end of February 2013, the applicant decided that he should
instruct attorneys. They ascertained that Professor
Hift had
referred the matter to the university’s legal advisor.
Before anything could come of that the applicant received
notification that a meeting of the first respondent would consider
his case on 4
th
March 2013. The university was supposed to make
representations, but it was not clear to the applicant that the
university
had done so.
[15]
On 8 March 2013 the applicant’s attorneys addressed the
respondents asking after the outcome of the meeting of 4 March
2013.
The urgency of the matter and the prejudice to the applicant was
stressed. The attorneys asked for notification
of the decision
and reasons for it and expressed their desire to see the matter
resolved speedily without the necessity of instituting
urgent High
Court proceedings. The attorneys received no response to that
letter.
[16]
On 28 March 2013, the founding papers in the present application were
issued. They gave notice of an intention to seek
a rule nisi on
9 April 2013 with interim relief in the form of an order directing
the first respondent to take all necessary steps
to cause the
applicant to be duly registered for the period 1 January 2011 to 31
December 2013.
[17]
On 9 April 2013 an order was taken by consent in terms of which
the rule nisi was issued without a specific return date,
and the
interim relief granted. There was no qualification to the
interim relief, that the respondents would be permitted
to retract or
cancel the registration of the applicant to which they consented, if
the proceedings terminated in favour of the
respondents prior to 31
December 2013. The respondents’ consent to the order was
accompanied by a recordal made in
the order:
“…
that,
in consenting to this order, the first and second respondents have
not admitted the allegations in the applicant’s founding
affidavit or the confirmatory affidavits delivered in support hereof
and that their rights are reserved to address these allegations
in
due course if necessary.”
[18]
I have given a relatively detailed account of the events which
preceded the grant of an order by this Court on 9 April 2013
because
it seems to me that in considering the question as to the costs of
these proceedings I should examine more than the issue
as to whether
the applicant would have obtained his relief ultimately if the matter
had not become moot. At least two other
questions strike me as
important.
(a)
Was the applicant justified in launching
the application?
(b)
Did the applicant in fact achieve success?
[19]
As to the second of these questions, the answer is obviously in the
affirmative. The respondents agreed to an order which
obliged
them to register the applicant for a period terminating on 31
December 2013, which is the final relief which he sought
in the
proceedings. I was told in argument that the respondents had
delivered replying papers in July 2013 because it was
necessary to
proceed with opposition to the application in order to protect the
respondents’ processes and policies.
I disagree.
The basis upon which the respondents had consented to an order
directing them to register the applicant to the
end of December 2013
was recorded in the order, and if matters had been left at that there
could subsequently have been no suggestion
that any concession had
been made or any precedent set. It is also not without
significance that the respondents took no
steps to set the matter
down for hearing once the period for delivery of a replying affidavit
as of right had lapsed. If
the respondents were under the
impression that ultimate success in the litigation would entitle them
to bring the applicant’s
registration to a premature end (i.e.
before 31 December 2013) then they took no steps to pursue that
outcome. In the end,
and whatever the outcome of the debate
over whether the applicant’s case would have prevailed if the
matter had been disposed
of finally before it became moot, as a
matter of fact the relief the applicant sought was granted and the
benefit of it enjoyed
by the applicant in full. The applicant
was factually successful.
[20]
Turning to the first of the two questions posed above, I take the
view that the applicant was justified in launching these
proceedings.
(As to the legitimacy of the question, see
Rainbow
Chicken Farm v Mediterranean Woollen Mills
1963 (1) SA 201
(N) at 206 A-C.) He had been told by the
respondents that he had practised medicine in a public hospital
unlawfully from
1 January 2011 onwards. He had been told that
he should desist from practice forthwith. The registration
cards he had
received from the respondents contradicted the
assertions they now made. (It is clear on the papers that there
was nothing
untoward or unreasonable about the applicant’s
belief, shared by Professor Hift and presumably by the university
authorities
generally, that the registration cards provided by the
respondents to the applicant reflected the fact that he had been duly
registered
as a medical practitioner throughout the period to which
those registration cards spoke.) The correspondence from the
respondents
did not contradict Professor Hift’s belief that the
registration process that the applicant was invited to participate
in,
which would interrupt not only his work but his studies, would
likely take some six months. The respondents’ failure
to
disclose to the applicant’s attorneys what had transpired at
the meeting of 4 March 2013 was and remains inexplicable.
There
was never any suggestion that the declaration made in advance of the
application that the first respondent would only be
in a position to
confirm the one year of registration indicated on the original
registration certificate (1 January 2010 to 31
December 2010) had
anything to do with any shortcoming in the applicant’s studies
or his performance as a medical doctor.
In my view the
applicant cannot be faulted for taking the view that there was no
reason to have any confidence in a just outcome
if he submitted
himself to the jurisdiction of the respondents by applying for what
they would have regarded as the necessary retroactive
registration of
the applicant as a medical practitioner; and indeed for his further
registration from 1 April 2013 to 31 December
2013, all of which was
necessary in order for him to complete his studies. Furthermore, his
approach to the Court was justified
by the fact that what the
applicant had taken to be his lawful registration was due to
terminate on 31 March 2013; urgent relief
was required and the
respondents’ failure to disclose what had happened at the
meeting of 4 March 2013 hardly engendered
any confidence in the
proposition that urgent relief would be available otherwise than
through legal process.
[21]
In my view the papers before me establish that the respondents’
conduct in advance of the launch of the application fell
short of
what was required administratively. The respondents denied the
applicant’s due registration as a practitioner
with effect from
1 January 2011 despite the fact that they had issued documentary
proof (in the form of the registration cards)
that the applicant had
indeed at all material times been duly registered. They adopted
that stance upon the basis that they
had not received a formal
request for an extension of registration from the applicant (this
notwithstanding the respondents’
own invitation to the
applicant to pay for re-registration on each occasion), and relied on
the absence of formal letters of support
from the university despite
the fact that the respondents had to have known that the university
supported the continued registration
of the applicant as it continued
to educate him and use his services at the hospital. Why, if
these formalities were of such
crucial importance, was it only noted
that they had not been complied with two years after the first event
of non-compliance?
The answering affidavit delivered by the
respondents does not explain the basis upon which it agreed, when
consenting to interim
relief, to register the applicant forthwith
despite the continued absence of compliance with the very formal
requirements which,
according to the respondents, justified the
course they had taken with regard to the applicant in advance of the
application.
[22]
Confronted with these issues in argument, counsel for the respondents
conceded that perhaps the correct order was that each
party should
pay their own costs. Counsel for the applicant did not regard
that as a just outcome and persisted in the applicant’s
prayer
for costs. For reasons already given, and because I have
concluded that the applicant would in any event have succeeded
in
this litigation if it had not become moot, the stance adopted by
counsel for the applicant is in my view correct.
[23]
The first point made by the respondents in the answering affidavit
put up by the registrar of the first respondent is one which,
at best
for the respondents, puts form above substance. It is suggested
that a mandamus is impermissible in this case as
what the applicant
ought to have done is to review and set aside what the deponent calls
the “administrative decision of
the [first respondent] to
de-register him”. Of course, when the application
was launched the applicant had not
been told that he had been
“de-registered” (whatever that may mean). He had in
effect been told that he had not
been registered for the previous two
years. Furthermore, if the deponent is right in saying that a
decision had been made
to de-register the applicant (presumably at
the meeting of 4 March 2013) then he must have been on the register
before that, a
proposition which had been repudiated by the
respondents in the correspondence which preceded the application.
Section 19
(1) of the Health Professions Act, 1974 does empower the
second respondent to direct the removal of a name from the register.
However, sections 19 (2) and (3) are to the effect that notice of
such removal must be given by the registrar to the person concerned
by way of certified mail, and that with effect from the date on which
such notice is given the registration certificate relating
to such a
practitioner shall be deemed to be cancelled, and the practitioner
shall cease to practise. No such notice was
given to the
applicant.
[24]
The kernel of the respondents’ argument lies in the proposition
that there is a policy of registering supernumeraries
like the
applicant for one year at a time so as to keep proper control over
them in the public interest. Apparently recognising
that the
implementation of such a policy, when it requires input or action on
the part of the persons whose rights or interests
are affected by it,
cannot be rational, reasonable or indeed lawful without the affected
persons being informed of what action
or input is required of them,
the respondents sought to make the case that:
(a)
the applicant knew that he had to submit
annual letters of support from the university because he had been
told of that in a letter
under cover of which his original
certificate had been sent to him; and
(b)
applying the rule in
Plascon-Evans
,
the applicant’s denial of receipt of that letter must be
rejected.
And
in the circumstances, says the registrar in the respondents’
answering affidavit:
“
The
policy implemented by the [first respondent] is a reasonable one and
one which [the applicant] was aware of. It is due
to his own
neglect that the present situation has arisen.”
[25]
The registrar states in the respondents’ answering affidavit
that the applicant received the letter in question with
his
registration certificate. But there is no admissible evidence
put up by the respondents to the effect that the letter
was actually
sent; this despite the fact that the founding affidavit denied its
receipt. The registrar annexed a copy of
the letter to her
affidavit. One of the remarkable things about the letter is
that it is not addressed to anyone at all.
(Another remarkable
thing is that it speaks to regulations which had by then been
repealed in terms of the new applicable ones
which had been published
a year earlier, on 6 February 2009.) The letter does state that
the period of registration could
be extended upon application with
full motivation from the dean of the faculty or head of the
institution for further periods of
not more than twelve months per
application. It informs its intended recipient that such an
application for extension must
be submitted at least three months
prior to the expiry date. The letter goes on to remind the
intended recipient of the need
to pay the annual fee and then
contains the following warning.
“
Kindly
note that payment of the annual fee, without a formal application to
extend your registration, does not imply that your registration
has
been extended”.
What
the letter does not address is the question as to what is to be
“implied” if a practitioner who pays his or her
fees
receives in exchange a registration card reflecting that the
practitioner’s registration has in fact been extended.
[26]
Be that as it may, the clue to what might have happened to the letter
if it was sent may lie in the manner in which the first
respondent
transmitted the invoices and registration cards to the applicant.
Although the invoices in each case reflect the
applicant as the named
intended recipient, they were actually addressed to one Michelle
Ramlal of the University of KwaZulu-Natal.
It may very well be
that, if it was sent, the crucial letter relied upon by the
respondents got to the university but not to the
applicant.
[27]
In my view this case would have been decided upon the basis that the
applicant did not receive the letter advising him of what
was
required of him in order to secure the requisite extensions of his
registration. Whilst the probabilities on this issue would
not have
been considered by the court (
National
Director of Public Prosecutions v Zuma
2009 (2) 277 (SCA) at para 26), the prior question as to whether a
dispute over receipt of the letter had been properly raised
would
have been answered against the respondents.
[28]
In the circumstances I conclude that if this application had
proceeded to finality otherwise than in the moot form in which
the
papers were ultimately finalised, the applicant would at least have
succeeded in having his name restored to the register for
the period
up to 31 March 2013. That on its own would have constituted
substantial success, justifying an order of costs
in favour of the
applicant. Moreover, in the absence of any suggestion that the
applicant did not qualify for further registration,
an order
compelling the respondents to register the applicant as a
practitioner up to 31 December 2013 would in my view also have
been
granted.
I
accordingly make the following order:
[1]
The first and second respondents are ordered to pay the applicant’s
costs, their liability being joint and several.
OLSEN
J
Date
of Hearing: Tuesday, 03 FEBRUARY 2015
Date
of Judgment: : Thursday, 19 FEBRUARY 2015
For
the Applicant: MR R PILLEMER
Instructed
by: Larson Falconer Hassan Parsee Inc.
Applicant’s
Attorneys
93
Richefond Circle
Ridgeside
Office Park
Umhlanga
Rocks
Durban
(Ref.:
Mr Hassan/21/S565/001)
(Tel
No.: 031 – 367 1000)
For
the Respondent: MR TERRY MOTAU SC
MR
A GOVENDER
Instructed
by: Gildenhuys Malatji Inc.
1
st
& 2
nd
Respondents Attorneys
(Ref.:
M Kanyane/BC/01696610)
c/o
Tomlinson Mnguni James
13th
Floor
The
Marine Building
22
Dorothy Nyembe Street
Durban
(Ref.:
Mr D R Stofberg/jb/65g3179/13)
(Tel.:
031 – 566 2207 / 033 – 341 9100)