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[2014] ZAGPPHC 197
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South African Dental Association NPC v Minister of Health and Others (69766/11) [2014] ZAGPPHC 197 (7 March 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
69766/11
DATE:
07 MARCH 2014
In
the matter between:-
THE
SOUTH AFRICAN DENTAL ASSOCIATION
NPC
.......................................
Applicant
And
THE
MINISTER OF
HEALTH
....................................................................
First
Respondent
THE
HEALTH PROFESSIONS COUNCIL
OF
SOUTH
AFRICA
.................................................................................
Second
Respondent
THE
CHAIRPERSON OF THE PROFSSIONAL BOARD
FOR
DENTAL THERAPHY AND ORAL
HYGIENE
.................................
Third
Respondent
THE
DENTAL ASSISTANTS ASSOCIATION
OF
SOUTH
AFRICA
.....................................................................................
Fourth
respondent
J
U D G M E N T
Ismail
J:
[1]
This is an application wherein the applicant seeks an order in terms
of Rule 53 of the uniform Rules
of court for the review and setting
aside seven ministerial regulations, regulating the profession of
Dental Assistants. These
regulations were promulgated in terms of the
provisions of the Health Professional Act 1974 [The HPA].
[2]
The fourth respondent is joined in this matter by virtue of Mavundla
J provisionally ordering the fourth
respondent to be joined in
thematter. The learned judge ordered the court hearing the
application should determine, whether or
not fourth respondent should
have standing in this matter. This aspect would be dealt with further
on in this judgment.
[3]
In the course of this judgment the applicant would be referred
to by either as the applicant or
by the acronym SADA; and the
fourth respondent as such or DAASA. The first respondent would be
referred to as such or as
the Minister; the 2
nd
respondent
as such or the Council; and the third respondent as such
or as the Board.
[4]
In the founding affidavit the deponent Margaretha J Smit stated:
“
This
founding affidavit is filed in support of an application and
principle at reviewing and setting aside certain decisions taken
and
administrative action performed by the Minister of Health, who is the
first respondent in this proceedings, which decisions
are
ultra
vires
the powers of the Minister or are
otherwise unlawful in terms of the provisions of the Promotion of
Administrative Justice Act
3 of 2000 (PAJA) or the Constitution of
South Africa, 1996 (“the Constitution”) “
The
applicant contends that there are five regulations which are impugned
in this application. These regulations are as follows:-
4.1
Regulations published as government Notice 338, dated 16 April
2005,
as amended by Government Notice R580, dated 30 May 2008
-
referred to as the “Original
Qualification Regulations”
4.2
regulations published in Government Gazette 31633, dated 28 November
2008 – referred to as “ the
Board regulations”
4.3
Regulations Relating to the Qualifications for Registration of dental
Assistants, Amendment, published in
Government Gazette number 35046
on 14 February 2012. – referred to as “the revised
Qualification
Regulations”
4.4
Regulations Relating to the Qualification for Registration of Student
Dental Assistants Amendment published
as government notice R395 In
government Gazette number 35363 o 21 May 2012 – referred to as
“
Student
qualification Regulations ”
4.5
Regulations Defining the Scope of the Profession of Dental
Assistants published as government Notice R396 in
Government Gazette number 35364 on 21 May 2012 – referred to as
“the
Scope
Regulation”.
[5]
The applicant in its papers avers that the during April 2005 and
purportedly acting in terms of the
Health Professional Act 56 of 1974
(“the HPA”) the Minister promulgated regulations (“the
Qualifying Regulations”)
purporting to set out the
qualifications required for registration as a dental assistant, with
second respondent, the Health Professional
Council of South Africa
(“the HPCSA”). The qualifying Regulations were
ultra
vires
the provisions of the HPA because it purported to stipulate
the qualification for registration as a dental assistant in
circumstances
in which dental assistants did not, prior to the
promulgation of the Qualifying Regulations, form part of any health
profession
or registration category.
[6]
The applicant in its notice further prays that during November 2008,
the Minister promulgated regulations
pursuant to section 15 of the
HPA (“ the Board Regulation”) in terms of which the
Minister purported to constitute
a professional board that included
dental assistants. This was done:
1.
In circumstances in which no health
profession for dental assistants
existed; or
2.
only the qualifying Regulations were
promulgated.
[7]
The applicant is of the view that the Board Regulations were like the
Qualifying Regulations which preceded
them,
ultra vires
the
provisions of the HPA.
[8]
The HPA is the bedrock and foundational piece of legislation
whichgoverns the conduct of professional activities
within the health
care sector in this country.
Section
1 of the HPA defines a health professions as:
“
any
profession for which a professional board has been established in
terms of section 15.”
[9]
Section 15(1) permit the Minister to establish a professional board
in respect of a health profession,
however a health profession exist
only if a professional board is established. The applicant submitted
that in addition to the
requirement that a professional board being
established prior to a health profession being constituted, such a
health profession
should also be registrable in terms of the HPA.
This is governed by section 17 of the HPA. Such registration with the
HPCSA is
a prerequisite for practising as a registered or registrable
profession in the Republic..
[10]
Mr Leech SC acting for the applicant submitted that this application
was founded on the principle of legality and
that the regulations
referred to in para [3] above, were
ultra vires
the provisions
of the Health Professions Act. In the event it is found that
provisions of the various regulations are inconsistent
with the
principle of legality the court would be obliged in terms of section
172(1)(a) of the Constitution to declare the regulations
as being
invalid.
[11]
The applicant submitted that the Minister did not have the powers in
terms of the HPA to make the regulations which
he/she made and
furthermore in so far as the Board regulations and Original
Qualification are concerned they were promulgated without
due
consideration by the First Respondent .
Qualification
Regulations in terms of section 61 (1) read with sections 24 and 25
of the HPA. When that was done the HPA had not
been amended.
Section
24 reads as follows:
“
The
minister may, on recommendation of council, prescribe qualifications
obtained by virtue of examinations conducted by a university,
a
technikon or other examining authority in the Republic ,which, when
held singly or conjointly with any other qualification, shall
entitle
any holder thereof to registration in terms of the 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
applicant
submitted that the Minister was
entitled under this section to prescribe qualifications which would
permit the holder of the qualification
to register in terms of the
Act. This presupposes that there was a register for dental
assistants at that time. The applicant
argued firstly that there was
no register for dental assistants and secondly that the Board
of Dental Therapy and Oral Hygiene
regulated only that profession and
finally therewas no dental assistant on that Board at that time.
Section
24 entitles and prescribes registration of a person to
register,however, there was no register at the time. The First
Respondent’s
power to prescribe such qualifications in terms of
section 24 in order to recognise a profession for dental assistants
required
registration and therefore a register was required.
Up to that stage, i.e. the promulgation of the Qualifying
Regulations,
dental
assistants
did not require formal qualifications and the majority of them
obtained training whilst being employed by dentists. Accordingly
the
applicant argued that the first respondent did not have the power to
prescribe qualifications for registration as dental assistants
where
the Act was silent and contained no requirement for registration.
[12]
The first respondent avers that during April 2000, the Board
recommended and the council resolved to establish
a register for
dental assistants in terms of section 18(1). The applicant contended
that to recommend and resolve does not imply
that it was actually
done. To this end the applicant’s argued that the Council and
the Board in their own affidavits suggested
that as at 9 April 2001
no register was created or existed.
[13]
The applicant also submitted that at no point prior to the
promulgation of the Board regulations had the Minister
established a
profession for dental assistants or extended the Board’s powers
to regulate the activities of dental assistants.
This the applicant
avers was neither challenged nor contradicted by the Minister
in his second affidavit. It was submitted
that Minister could in
terms of section 15 of the Act only constitute a Board for a Health
profession registrable under the Act.
For that reason the board
regulations also fall to be set aside.
[14]
During 2012 the Minister promulgated regulations namely the
revisedQualification Regulations and the Student Qualification
Regulations and the Scope Regulations. These regulations fall in a
different category as counselfor the Minister argued that
the
application should fall to be dismissed as
the
challenge was brought in terms of Legality regarding the
BoardRegulations and the Original Qualification regulations. Mr
Maenetje
SC submitted that where the provisions of The
Promotion of Administrative
Justice
Act 3 of 2000
[“ PAJA”] applies it should be involved to
challenge administrative actions.
[15]
The preamble of PAJA reads:
WHEREAS
section 33 (1) and (2) of the Constitution provides that everyone has
the right to administrative action that is lawful,
reasonable and
procedurally fair and that everyone whose rights have been adversely
affected by administrative action have the
right to be given written
reasons:
AND
WHEREAS section 33 (3) of the Constitution requires national
legislation to be enacted to give effect to those rights, and to-
·
provide
for review of administrative action by a court or, where
appropriate
, an independent and impartial tribunal;
·
impose a duty on the state to give effect
to those rights; and
·
promote an efficient administration.
The
first respondent’s counsel submitted that where PAJA applied a
party did not have an election or choice whether to proceed
in terms
of PAJA or to proceed in terms of the Constitution. Mr Leech on the
other hand submitted that a party always has a right
to proceed
against impugned legislation on the ground of Legality and is not
restricted to PAJA.
The
argument advanced by the first and fourth respondents was that
judicial review in terms of section 6 (2)(a)(i) of PAJA must
be
brought in terms of section 7, which should be instituted within a
reasonable time and not later than 180 days after the date.
DAASA in
its affidavit raised the point that PAJA applied and that the
applicant was out of time and notwithstanding the point
raised by it
no application for condonation was brought.
[16]
If that argument is upheld it would mean that the application
regarding the Original Qualification Regulation and
Board Regulations
should be dismissed. It is common cause between the parties that the
Minister’s actions in this matter
related to an administrative
function and therefore PAJA applied. The crisp question to be
determined is whether an administrative
act can be attacked on
the grounds of legality in preference to PAJA. If so it would affords
a party an option to proceed by that
means or in terms of PAJA.
Mr
Leech submitted that a challenge in term of the principle of legality
can be brought at any time. Whereas PAJA has time
restrictions
(which can be extended).
[17]
Mr Maenetje SC submitted that the application in respect of the
pre-2012 regulations should fall and be dismissed
due to the
unreasonable delay in launching the application. He contended that
once PAJA applied, the review application cannot
be decided without
reference to it. –
Bato Star
Fishing (Pty) Ltd v Minister of Environmental
Affairs and Others
[2004] ZACC 15
;
2004
(4)
SA 490
(CC) para [26] where O Regan J stated.
“
In
these circumstances, it is clear that PAJA is of application to the
case and the case cannot be decided without reference to
it. To the
extent, therefore, that neither the High
Court
nor the SCA considered the claim made by the applicant in the context
of PAJA, they erred. Although the applicant did not
directly rely
upon the provisions of PAJA in its
notice
of motion or founding affidavit, it has in its further written
arguments identified the provisions of PAJA upon which it
now
relies.”
[18]
Counsel for the Minister submitted that the principle of legality, on
which the applicant pins its case, i.e. the
ultra vires
issue,
extends only towhether the Minister had powers to make the
regulations. This question whether the Minister took all the relevant
considerations into account and whether he/she acted procedurally
fairly, is one that is governed by
PAJA.
[19]
The first respondent’s counsel furthermore submitted that even
if the applicant is found to be correct that
it is entitled to bring
the review on the ground of legality at any time it wishes to do so
the application is not properly before
court because it concerns
aspects that are squarely governed by PAJA.
This
argument clearly implied that a party does not have an election to
choose to bring a legality review where PAJA applies. He
relied upon
the matter of
Opposition to Urban Tolling Alliance and Others v
The South
African
Roads Agency Limited and Others
a
Judgment of Brand JA in the Supreme Court of Appeal under case number
90/2013 particularly at para
[36]
and [38].
“
[36]
the fourth basis invoked by the appellants as to why the 180 day time
bar should be extended was that it was the requirement
of the
rule of law that the exercise of all public power should be lawful
and that SANRAL and the government has failed to act
legally. As I
see it, however, the argument is misconceived. While it is true that
the principle of legality is constitutionally
entrenched, the
constitutional enjoinder to fairadministrative action, as it has been
expressed through PAJA expressly recognises
that even unlawful
administrative action may be rendered unassailable to delay.”
[20]
Further on at para [38] the learned judge continued;
“
[38]
However, the passage in
Oudekrall
upon which the appellants rely is authority for the contrary. The
passage makes clear that, unless an invalid administrative act
is set
aside by a competent court, it is regarded as valid for the purposes
of consequent acts. This is supported by the following
statement in
the unanimous judgment by the Constitutional Court in
Camps
Bay Ratepayers’ & Residents’ Association and another
v Harrison and another
2011 (4) SA 42
(CC) at para 62:
‘
As
was explained in
Oudekrall estates (Pty)
Ltd v City of Cape Town and others
[par
31] administrative decisions are often built on supposition that
previous decisions were validly taken and unless that previous
decision is challenged and set aside by a competent court , its
substantive
validity is accepted as a fact. Whether or not it was indeed valid is
of no consequence.”
[21]
The argument advanced by applicant’s counsel was that the
applicant could not attack the minister’s
promulgation of the
regulations until the regulation was enacted, whereby it made it an
offence for dental assistant not to be
registered, and equally made
it an offence to hire them in the absence of registration. This
argument in my view is based on convenience
and one which was
aimed at taking issue with the regulations at the latest possible
time, hence the attack is launched in
terms of section 33 of the
Constitution and not in terms of PAJA. Even if the applicant is
correct that Promulgation of criminal
sanctions motivated it to seek
a review it could have brought the application in term of PAJA, and
if the 180 day period had lapsed
condonation could have been sought
or the opposite party could have been approached for time extensions.
It is only when the shoe
pinched and registration become a
requirement, on its version, that the applicant reacted.
Notwithstanding the so called ‘illegality’
of the earlier
regulations which for years were not challenged.
[22]
The time delay in launching the application in my view is a
consideration which this court cannot ignore. The Minister,
Council
and Board have for years, approximately 15 years, been trying to
regulate dental assistants. This process also involved
the
participation of the applicant in the regulation of the ‘profession’
as they were important role players. Dental
assistants have been in
limbo throughout this period and are anxious to know whether their
work would be regulated or not. To this
end DAASA seeks a counter
application wherein the Minister is ordered to continue with
legislation regulating dental assistants.
[23]
Counsel for the second and third respondents submitted that
theapplicant raised no objections, including in November
2008
questioning the legality of the board’s regulatory power over
the professional activities of the dental assistants profession.
Furthermore,
the issue of a register which the applicant relied upon had not been
in existence on it’s own version until April
2001 and the
applicant did not raise this issue until it launched the application
during December 2011.
It
is submitted that in 2001 the applicant supported the establishment
of a register for dental assistants. The applicant now argues
that at
the time the 2005 and 2008 regulations were promulgated no register
for dental assistants was in place and hence the impugned
regulations
should be set aside.
[24]
Miss Mkwanazi acting for the second and third respondents submitted
that the procedure followed prior to the promulgation
of the
relevant
regulations was the notice and comment procedure. There was no
obligation on the part of the administrator to respond to
each and
every comment or consideration received by it. All that was expected
of the Minister was that the administrator was responsive
to the
comments received.
In
this regard Prof Chitke, the Chairperson of the task team, made the
point to the applicant’s Vice president and its representatives
on the task team that:
“
..
SADA was regarded as a very important stakeholder to assist it the
successful implementation of dental assistants registration...
The
Task Team expected robust interaction with SADA, but on the basis of
participation, as the board had no intention to deviate
to
professionalise dental assistants” (2 nd and 3rd
respondents Answering affidavit TEM 16).
[25]
The applicant’s launching of this application at this late
stage, after three ministers , had endeavoured
to
regulate the profession is opportunistic and the court has to ask
itself what prejudice would there be to the applicant
other than
possible financial implications to them. I have not dealt with the
aspect of the fourth respondents status in this application,
however,
I will revert to this aspect when I deal with DAASA hereunder.
[26]
In
Bengwenyama Minerals v Genorah
Rresources
2011 (4) SA 113
at 138A para
[61] Froneman J refers to
Zondi v MEC
for Traditional Local Government Affairs and others
2005
(3) SA 589
(CC) where Ngcobo J stated:
“
PAJA
was enacted pursuant to the provisions of s 33, which requires the
enactment of national legislation to give effect to the
right of
administrative action. PAJA therefore governs the exercise of
administrative action in general. All decision-makers who
are
entrusted with the authority to make administrative decisions by any
statute are therefore required to do so in a manner that
is
consistent with PAJA. The effect of this is that statutes that
authorise administrative action must now be read together with
PAJAunless upon a proper construction, the provisions of the statutes
in question are inconsistent with PAJA.”
[27]
Chaskalson CJ in the
Minister of Health
v New Clicks SA (Pty) Ltd and others
2006
(2) SA 311
at para [92]-[97] dealt with the Constitution and PAJA. At
para [93] the Chief justice stated the following:
“
[93]
However I do not agree, with the approach adopted by both the
majority of the High Court, and later the SCA, that notwithstanding
the provisions of PAJA the regulations were subject to an independent
review for lawfulness under s 33 of the Constitution.”
In
the same matter at para [97] the learned Chief Justice continued by
stating:
“
[97]
Professor
Hoexter
sums up the relationships between PAJA, the Constitution and the
common law, as follows:
‘
The
principle of legality clearly provides a much-needed safety net when
PAJA does not apply. However, the Act cannot simply be
circumvented
by resorting directly to the constitutional rights. (The PAJA itself
can of course be measured against the constitutional
rights, but that
is not the same thing.) nor is it possible to sidestep the Act by
resorting to the common law. This too is logical,
since statute
inevitably dispose rights of the Act, but it cannot be regarded as an
alternative to the Act.”
Dental
Assistants Association of South Africa [DASSA]
[28]
DAASA seeks leave to intervene in this application. It was not
originally cited as a party to the application.
DAASA was
provisionally granted leave to be joined in this matter, see para [2]
above.
[29]
The applicant challenges the
locus standi
of the DAASA and it
avers that this organization does not have the power to sue or be
sued. It is anunincorporated voluntary association
established in
terms of its constitution. DAASA’s constitution does not
authorize it to be a litigant in
proceedings.
To this end the applicant relied upon the matters of South
African
Optometric Association v Frames Distributors Ltd t/a Frames
Unlimited
1985 (3) SA 100
(O) 104B.- where the court held
that the interest was at best an indirect interest.
[30]
DAASA on the other hand argued that it exist since 1983 and that it
has a membership of approximately 3 000
dental assistants.
Itseeks leave to join this application in order to advance, protect
and promote the interest of dental assistants
and also the public
interest. It was submitted on its behalf that DAASA has a direct and
substantial interest in the matter. It
seeks to uphold the its
members rights to just administrative action and that it also seeks
to uphold their rights to dignity and
equality with recognition to a
regulated profession. This matter concerns the exercise of public
power and therefore is a Constitutional
issue. It was submitted that
the court should exercise a wider approach of the rules relating to
locus standi
in the constitutional era and that the fourth respondent should be
permitted to participate in these proceedings.- see
Rail
Commuters Association Group v Transnet Ltd
2005
(2) SA 350
CC.
It
avers that it has a direct and substantial interest in the matter and
that it may be prejudicially affected by the courts judgment.
It
relied upon the dictum of
Amalgamated Engineering Union v
Minister of Labour
1949(3) SA 637 (A) at 657 where the court held
that it may
mero motu
join such a
party.
[31]
Counsel for DAASA submitted that in view of the active involvement of
the fourth respondent in the process leading
up to the promulgation
of the impugned regulations, SADA ought to have joined DAASA
as a party to the dispute at the
outset of these proceedings.
[32]
If this court were to make a ruling that DAASA does not have
locus
standi
thereby non suiting its
participation in these proceedings it would thereby silence the voice
of an organization which has a membership
of at least 3 000
dental assistants affiliated to it. In keeping with the
constitutional ethos that the constitution should
embody the spirit
of an open an democratic society, I believe that to stifle the views
of an organization which has some bearing
on an issue and more
particularly where it represents a substantial number of people
would not be tenable, particularly where
it concerns a public law
issue.
[33
] Mr Jansen on behalf of DAASA relied upon the decision of
Pharmaceutical Manufacturers of
SA: In Re Ex parte president of the Republic of South Africa
2000 (2) SA at para [36]
of the
judgment where Chaskalson P stated:
“
The
prerogative is a doctrine of English law and, as the Appellant
Division pointed out in
Sachs v Donges
NO
, questions concerning the
prerogative were governed in South Africa by principles of English
law. Lord Denning has described the
prerogative as
‘
a
discretionary power exercisable by the executive government for the
public good, in certain spheres of governmental activity for
which
the law has made no provisions
…
.The
law does not interfere with the proper exercise of the discretion by
the executive in those situations; but it can set limits
by defining
the bounds of the activity; and it can
intervene
if the discretion is exercised improperly or mistakenly. That is a
fundamental principle of our constitution.”
[34]
SADA also raised the point that if the court were to permit DAASA to
be joined to these proceedings then it should
determine whether it
should condone DAASA’s late filing of its answering affidavit.
The affidavit ought to have been filed
by the 25 January 2013,
however it was only done two weeks thereafter. It is not
necessary for the purposes of this judgment
to state the reason for
the delay save to say that I considered the reasons raised in the
heads of argument and in the papers.
In any event the papers were
filed on the same day as the review papers and DAASA accordingly
submitted that there was no prejudice
to the applicant.
[35]
When the court is to determine whether condonation should be granted
or refused the court is guided by the judgment
of
Malane
v Santam Insurance Company Limited
1962
(4) SA 531
at 532 C-E where Holmes JA stated:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefore, the prospects of
success, and the importance of the case. Ordinarily the
facts are
interrelated; they are not individually decisive, for that would be a
piecemeal approach incompatible with a true discretion,
save of
course if there are no prospects of success there would be no point
in granting condonation.. “
[36]
In its papers DAASA expressed the view that the applicant has notmade
out a case to set aside the impugned regulations.
In support of this
contention it avers that the applicant cannot avoid the provisions of
section 7 of PAJA by submitting that its
challenge is based on the
principle of legality and not on the bases of PAJA. In this regard
DAASA relied upon
Hoexters,
Administrative Law in South Africa 2
nd
edition Juta
at p134.DAASA argued that
by allowing a litigant to bypass PAJA altogether It would frustrate
the constitutional and legislative
scheme providing for the review of
administrative action.
[37]
To this end DAASA contended that administrative action must be
challenged within a reasonable time, but no later than
180 days as
stipulated by PAJA. The argument is further advanced by stating
that the applicant only brought this review application
during
December 2011, six years after the 2005 regulations promulgated and
three years after the
2008
regulations.
[38]
DAASA contended that the applicant should have made out a case for
condonation, but despite it raising this aspect
in their response,the
applicant simply elected not to do so. This aspect, namely the
failure of the applicant to seek condonation,
was also raised by Adv
Maenetje SC when he addressed the court. It was submitted on behalf
of both the first and fourth respondents
that the failure to seek
condonation was fatal and that on this ground alone the
application should be dismissed.
[39]
The applicant brought the application for review premised on the
principle of legality. It was submitted on the
applicant’s
behalf that an attack on administrative action based on the principle
of legality could be brought at any time.
I am inclined to agree with
the first and fourth respondents argument that this is not so. See
New Clicks
referred to at para [26] above.
[40]
In my view the applicant should have brought this application in
terms of the provisions of PAJA and in doing so
it ought to have
applied for condonation. The failure of the applicant to do so was
fatal. This application premised on legality
was brought more than
ten years after it was decided to regulate and create a profession
for dental assistant.
In
view of the time delay the applicant brought the action in terms of
the principle of legality as opposed to PAJA. However the
applicant
contends that its attack in terms of Relating to the Qualifications
for Registration of dental assistants, Amendment,
published in
Government Gazette number35046 on 14 February 2012. – referred
to as “the revised Qualification Regulations”
and the Scope of the Profession of Dental Assistants published
as government Notice R396 in Government Gazette number 35364
on 21
May 2012 – referred to as “the Scope Regulation” is
not out of time and that those regulations ought to
be reviewed in
terms of PAJA.
[41]
DAASA instituted a conditional counter-claim whereby it seeks an
order that the Minister should proceed to take
the necessary steps to
cure the defects so that the Dental Assistant may be regulated in a
lawful manner.
[42]
DAASA also submitted that in the event that the Minister acted
irregularly the court should exercise its discretion
not to set aside
the promulgated regulations and that the court should rather order
the Minister to cure the defects.
In
this regard I dealt with this aspect above at para [25]. See
Bengwenyama Minerals v Genorah Resources
2011 (4) SA 113
the court exercised its
discretion in favour of prejudiced parties.
[43]
The applicant submitted that the Minister was not entitled to
promulgate the Scope and Board regulations in the
absence of a
Register for Dental Assistance. In my view this raises the issue of
what came first the chicken or the egg. Mr Maenetje
argued that the
sequence within which things were done may not have been orderly;
however, the court should ultimately ask itself
whether things were
done albeit not in proper sequence.
It
is clear that the register was only effected in 2001 after the
promulgation of the two regulations namely the Scope and the Board.
The
applicant argued that the register had to be created in order for a
profession to be created. However, by 2001 the register
had been
created and no proceedings were brought to set aside the
promulgations of the impugned regulations. The argument advanced
on
behalf of the applicant that the was no need to create a profession
for dental assistants, as for decades dental assistants
were trained
and worked under the supervision of dentists and therefore the
scope regulations were unnecessary.Whilst it
is true that this was
the traditional manner in which dental assistants operated in the
past and presently It does not necessary
follow that this method
should continue
ad infinitum
.
We live in a modern age were people need to be scientifically
trained and the skills should be enhanced in most facets of
life. It
appears that SADA is averse to change and moving into a new era, and
they do not desire dental assistance to be regulated
or
professionalised.
[44]
The time delay aspect has been dealt with above, see
Oudekrall
Estates (Pty) Ltd v City of Cape Town and others
[par
31]
and
the
New
Clicks matter, supra.
[45]
I am of the considered view that the prejudice dental assistants
would suffer if the regulations were set aside
far outweighs any
defects which might exists in the promulgation of the regulations.
[46]
I would recommend that the Minister continues with his regulations in
furtherance of the legislation regarding
dental assistants, however,
the Minister should afford the parties a two year moratorium period
before the failure to register
as dental assistants would be
met with criminal sanctions. This recommendation would equally apply
to hiring dental assistants,
by dentists, who are not registered
during the moratorium period.
[47]
Accordingly I make the following order:
(1)
The application is dismissed
(2)
The fourth respondent is joined to this proceedings and its
application for condonation is granted.
(3)
The applicant is ordered to pay the costs of the respondents.
Ismail
,
J
APPERANCES:
For
the applicant
Adv Leech SC and Ms K Hofmeyer
Instructed
by: Werksmans Attorneys, c/o
Edelstein-
Bosman Inc, Pretoria
For
the First Respondent:
Adv Maenetja SC instructed by the State
Attorney,
Pretoria
For the 2
nd
and 3rd Respondents:
Adv T Mkhwanazi, instructed by Moduka
Attorneys,
Pretoria
For
the Fourth Respondent:
Adv R Jansen and adv G Snyman