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[2013] ZAGPPHC 447
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Katumba v Health Professions Council of South Africa (54834/2013) [2013] ZAGPPHC 447 (11 November 2013)
IN THE NORTH GAUTENG HIGH COURT, PRETORIA
REPUBLIC OF SOUTH AFRICA
CASE NO: 54834/2013
DATE: 11 NOVEMBER 2013
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
N’YUNYI WAMBUYI
KATUMBA
...............................................................
Applicant
And
THE HEALTH PROFESSIONS COUNCIL OF
SOUTH
AFRICA
.........................................................................................
Respondent
JUDGMENT
1. The applicant, N’yunyi Wambuyi Katumba, is a medical
practitioner residing at 162 Club Avenue, Ashley Gardens, Pretoria,
Gauteng.
2. The respondent is the Health Professions Council of South Africa,
a juristic person established in accordance with section 2
of the
Health Professions Act 56 of 1974 (“the Act") of 553
Madiba Street, Pretoria, Gauteng.
3. The applicant claims that he is a duly qualified neurosurgeon
entitled to practice as such. In order to be able to practice
his
calling lawfully, he must be registered as a specialist by the
respondent. The respondent refuses to register the applicant
as a
specialist as it disputes the applicant’s qualifications.
4. The applicant relies on a foreign qualification that entitles him,
so he argues, to be registered as a neurosurgeon. The relevant
qualification was obtained at the University of Leuven, which
applicant alleges has been recognised by the respondent as an
equivalent
to the South African neurosurgical Fellowship Examination.
5. The dispute between the parties has a long history which needs to
be recorded for a better understanding of the matter.
6. The applicant was born in what is now the Democratic Republic of
Congo. From 1972 to 1979 he went to medical school at Kinshasa
where
he passed his final examination and was registered as a medical
doctor in 1979.
7. From 1984 to 1991 he studied at Leuven in Belgium, which according
to the applicant ended with the award of a specialist Master’s
degree equivalent to a specialist degree in Neurosurgery. The
applicant furthermore, according to his founding affidavit, followed
a parallel course presented by the European Association of
Neurological Societies, which he passed successfully.
8. The respondent claims that the Belgian qualification obtained at
the Leuven University is one in community medicine and not
neurosurgery, as is evident, according to the respondent’s
answering affidavit, from the certificate obtained by the applicant
itself. In reply, the applicant has filed an affidavit of the Dean of
the Medical Faculty of Leuven University, which confirms
that the
applicant received training which had the same content as the
training undergone by the Belgian medical practitioners
specialising
in neurosurgery. The relevance of this affidavit will be dealt with
below.
9. The applicant’s case is that his foreign qualification was
recognised by the respondent when the Professional Education
and
Training Committee recommended his registration as neurosurgeon in
public service in 2008. The respondent disputes this averment
and
alleges that the chronology of the parties’ interaction with
one another is quite different from that presented by the
deponent to
the founding affidavit.
10. According to the respondent’s deponent, Dr Mbhele, the
applicant first wrote to the respondent 2001 seeking enrolment,
at
that stage apparently as a neurosurgeon. As the application was not
in the proper form it was not acted upon. The applicant
then applied
to the respondent’s Medical and Dental Professional Board on
the 17th January 2003, which application did at
that stage appear to
be aimed at registration as a general practitioner.
11. On the 28th July 2003 a letter sent by the registrar of the
Colleges of Medicine of South Africa was received by the respondent,
from which it became apparent that the applicant would in fact be
seeking registration as a neurosurgeon, which he could obtain
if he
sat and passed the Fellowship Examination held by the South African
Colleges of Medicine. It is common cause that this examination
had to
be passed at that time to qualify for registration as a neurosurgeon
in South Africa.
12. The respondent’s Postgraduate Education and Training
Committee (“the PET Committee") resolved that the
applicant
would be registered as a neurosurgeon if he passed the
examination, which resolution was communicated to the applicant. The
applicant
then sat for the Fellowship Examination in 2004. It is
common cause that he failed and was therefore not entitled to be
registered
as a neurosurgeon in the Republic of South Africa, or to
apply for such registration.
13. In 2005 the respondent adopted a new internal policy relating to
the registration of specialist medical practitioners to enable
the
recognition of foreign qualified doctors’ qualifications as
equivalent to South African standards in respect of degrees
awarded
by specific foreign universities. Degrees awarded by the Catholic
University of Leuven were included in the list of foreign
qualifications that would grant access to South African registration
for foreign doctors. It must be underlined, however, that
it is clear
from the wording of the Act and the internal policy (“may”)
that the respondent is not obliged to register
a foreign holder of a
qualification conferred by one of the recognised universities, but
that it is granted a discretion to accept
the foreign qualification
for purposes of registration as a specialist in South Africa. The
respondent prepared a standard document
that was addressed to
practitioners seeking registration with it to convey the new policy.
Its relevant part reads as follows:
“
Foreign qualified health practitioners with qualifications
that enable them to practice medicine or dentistry abroad/in their
country
of origin may apply for registration with the Health
Professions Council of South Africa in the category Public Service,
provided
the applicant complies with the minimum requirements. In
special circumstances, based solely on the discretion of the Board,
applicants
with identified qualifications, which were evaluated by
the Board, may be exempted from the Examination of the Board.
Applicants are further required to secure written support in terms
of employability from the Foreign Workforce Management Program
(FWMP)
of the National Department of Health, Pretoria.
South African qualified practitioners are required to submit Form
21 and 57, duly completed.
A person who secures relevant registration shall be restricted in
terms of the conditions of his or her practice to the Public Service,
whilst the duration of registration and scope of his or her practice
shall be as specified by the Board. Registration is conditional
in
that the applicant should submit the required information, meet the
minimum requirements for registration as specified by the
Board and
successfully complete the Board Examination for foreign qualified
practitioners(where applicable).
The National Department of Health does not encourage the
recruitment of individual foreign health professionals who are
citizens
of developing countries.
Since the procedures are clearly outlined in the application form
for foreign qualified medical practitioners and dentists (Form
176
MP/DP) only a concise summary of information to be submitted is
provided.
The following should be submitted to the Board for consideration
prior to registration:
The attached application form, duly completed.
Copies of degree certificates of qualifications in
medicine/dentistry and sworn translations in English (Copies will
only be accepted
if certified by an attorney in his/her capacity as a
notary public and bearing the official stamp. Copies certified only
by a Commissioner
of Oaths will not be accepted
In view of possible damage or loss of such documents it is not
advisable to send such documents by mail.
Only original translations of the required documents done by a
sworn translator and duly sealed and notarised will be accepted. In
addition to such English translations, as indicated above, legible
copies of the original documents, certified and duly sealed
by a
Notary Public should be submitted.
A copy of the official and detailed curriculum of the applicant's
course of study, specifying courses, content of education (theory)
and training (practical/clinical), duration and mode of
examination/evaluation Verification of credentials by the Education
Commission
for Foreign Medical Graduates: International Credentials
Sen/ices (to be obtained by the applicant at own cost) (see separate
application
form - applicable to medicine only). The Board recently
agreed that the document could be submitted within a period of 6
months
from the date of registration. Applicants who fail to meet
this requirement will be de-registered.
A recent original Certificate of Status (Certificate of Good
Standing), indicating that the applicant is in good standing, issued
by the foreign registration authority where the applicant is
currently registered issued within the preceding three months.
A copy of a valid Passport or Identity Document as proof of
current citizenship, duly certified by a notary public as indicated
above.
A letter of endorsement in support of the application for
registration issued by the Foreign Workforce Management Program
(FWMP)
of the National Department of Health. Applications should be
directed to The Program Manager, FWMP, Room 1123, Fedlife Building,
National Department of Health, Private Bag X828, Pretoria, 0001, RSA
(e-mail: smiths(a)health. gov, za or pienaKcbhealth.gov.za.
Applicants who fail to secure the support of the FWMP towards an
application for registration or employment will not be eligible
for
registration.
In view of possible damage or loss of such documents it is not
advisable to send such documents by mail.
Only original translations of the required documents done by a
sworn translator and duly sealed and notarised will be accepted. In
addition to such English translations, as indicated above, legible
copies of the original documents, certified and duly sealed
by a
Notary Public should be submitted.
•
A copy of the official and detailed curriculum of the
applicant's course of study, specifying courses, content of education
(theory)
and training (practical/clinical), duration and mode of
examination/evaluation.
•
Verification of credentials by the Education Commission for
Foreign Medical Graduates: International Credentials Services (to be
obtained by the applicant at own cost) (see separate application form
- applicable to medicine only). The Board recently agreed
that the
document could be submitted within a period of 6 months from the date
of registration. Applicants who fail to meet this
requirement will be
de-registered.
•
A recent original Certificate of Status (Certificate of
Good Standing), indicating that the applicant is in good standing,
issued
by the foreign registration authority where the applicant is
currently registered issued within the preceding three months.
•
A copy of a valid Passport or Identity Document as proof of
current citizenship, duly certified by a notary public as indicated
above.
•
A letter of endorsement in support of the application for
registration issued by the Foreign Workforce Management Program
(FWMP)
of the National Department of Health. Applications should be
directed to The Program Manager, FWMP, Room 1123, Fedlife Building,
National Department of Health, Private Bag X828, Pretoria, 0001, RSA
(e-mail: smiths(a)health. gov, za or pienal(a).health. gov,
za.
Applicants who fail to secure the support of the FWMP towards an
application for registration or employment will not be eligible
for
registration. ”
14. Following upon the amendment of the policy, the applicant
submitted a formal application for registration as a neurosurgeon
in
South Africa to the respondent on the 10th November 2006. The
application lists all academic achievements obtained by the
applicant,
as well as the conferences and other opportunities for
further training and education attended by him. The application was
clearly
based upon his proficiency as evidenced by his foreign
qualifications. While the annexures to this application appear to be
comprehensive
and complete inasmuch as they record the applicant’s
experience and qualifications, it makes no reference to his failure
to pass the Fellowship Examination at all.
15. His application was considered by the PET committee and accepted
in the category Public Service for which the applicant was
accordingly registered. The respondent’s deponent to the
answering affidavit is adamant that this decision was taken in error
as the committee was under the impression that the applicant had in
fact passed the Fellowship Examination. The minute of the PET’s
meeting does not bear out this statement in as many words, as it
refers to the applicant having passed the Board Examination and
not
the Fellowship Examination - but so does the document sent to the
applicant when he sought registration. What is clear from
the minute
of the meeting on the 30th January 2007, however, is the fact that
the PET approved the application for registration
on the basis of the
applicant’s proficiency as neurosurgeon had been established by
the passing of a relevant examination.
The committee accordingly
never considered the question whether the foreign qualifications the
applicant relied upon were in fact
equivalent to the South African
qualification for the speciality the applicant wished to be
registered for.
16. In 2009 the applicant applied for registration as a specialist
neurosurgeon in private practice, which application was granted
on
the basis that he would be allowed to enter private practice once he
had followed his profession in terms of his existing registration
for
Public Service for a period of three years, i.e. from July 2010.
17. In August 2011 the respondent received a complaint relating to
the applicant’s expertise and proficiency. The respondent
examined the applicant’s record and realised that he had never
passed the Fellowship Examination and had therefore been registered
as a result of a misapprehension under which the PET laboured when it
approved his request for registration as a specialist neurosurgeon
in
Public Service. He was informed of the respondent’s intention
to delete his name from the register and thereby revoke
his
permission to practice. The respondent was clearly under a duty to
rectify the incorrect registration - in terms of the Act
it had no
choice in the matter. The applicant did not avail himself of the
opportunity to make representations to the respondent
why he should
not be struck from the register. The respondent therefore deleted his
name from the list of neurosurgeons entitled
to practice in South
Africa on the 9th December 2011.
18. Since that date the applicant has tried repeatedly to have his
registration restored. The respondent has adopted the view that
he
will be allowed to register once he has passed both the Board
Examination and the Fellowship Examination. The applicant applied
to
be restored to the register on the 14th August 2012, which
application was considered by the respondent’s PET and its
Executive Committee, which referred the matter back to the PET. The
latter eventually refused the application and confirmed that
the
applicant will have to pass the abovementioned examinations before he
will be eligible for re¬registration.
19. This decision is attacked by the applicant on a basis of urgency.
He seeks the review and setting aside thereof and an order
restoring
his name to the register of neurosurgeons.
20. The applicant has adopted the stance throughout, and persists in
this approach in the present urgent application, that he is
entitled
to registration on the basis of his foreign qualifications as a
neurosurgeon. The respondent disputes the alleged equivalent
nature
of the Belgian qualification to the South African Fellowship
Examination, as it is of the view that the Belgian version
is a
qualification as specialist community health practitioner. The
respondent has refused to accept the affidavit of the Dean
of the
Medical Faculty of Leuven University as dispositive of the nature of
the applicant’s qualifications.
21. The first hurdle the applicant has to overcome, however, is the
respondent’s denial that he was admitted to practice
in 2007 on
the basis of his Belgian qualification having been accepted as
sufficient proof of his proficiency as neurosurgeon.
While it is
correct that he placed all his qualifications before the PET when he
applied for registration in that year, it is clear
from the facts
related above that the PET did not investigate the question whether
the Belgian qualification was sufficient, but
admitted the applicant
on the basis of the mistaken belief that he had passed the Fellowship
Examination. The applicant’s
assertion that his foreign
qualifications were in the past accepted as a basis for a South
African registration in his specialist
category is therefore
incorrect and must be rejected.
22. But the applicant argues further that the respondent is obliged
to consider his application for re-registration on the ground
that
his Belgian application entitles him to be admitted regardless of his
past failure to pass the Fellowship Examination. In
fact, he submits
that the failure to pass the Fellowship Examination is irrelevant for
purposes of his application which is launched
solely in reliance on
his foreign qualification. Quite apart from the fact that the nature
and extent of this qualification is
in dispute between him and the
respondent - a dispute that could only be resolved by oral evidence -
the applicant’s approach
is completely unrealistic and in stark
conflict with the correct interpretation of the Act. As has been
recorded above, section
15B of the Act vests the professional board
and its delegated committees with a discretionary power to recognise
foreign qualifications.
The PET is allowed to consider registration
as a specialist practitioner on the basis of a foreign qualification,
but is not obliged
to do so. Its duty is to ensure that only duly
qualified candidates are admitted to specialist practice. Evidence
that the holder
of a qualification obtained in a foreign country,
which is prima facie equivalent to the South African Fellowship
Examination,
failed the South African examination that all South
African candidates must pass to be allowed to practice as
neurosurgeons, must
self-evidently be taken into consideration when a
foreign qualified doctor seeks registration in the Republic. The
respondent is
tasked with ensuring that the professional standards of
the medical profession are maintained in the interest of public at
large,
and in the particular interest of patients who might consult a
doctor in the future (see section 3 of the Act). Whatever a
candidate’s
qualifications, the failure to pass an examination
that is obligatory for all intending specialists who qualify in the
Republic
must surely cast a shadow of doubt over the proficiency and
professional ability of the individual who failed the same test. The
PET and the respondent would be failing in its duty if it did not
take appropriate steps to ensure that such individual provide
proof
of her or his professional ability before registration of the
individual concerned could be permitted.
23. The PET’s and the respondent’s demand that the
applicant pass the South African examinations before being allowed
to
re-register is therefore lawful, rational, reasonable, in the public
interest and professionally appropriate. The applicant’s
claims
must therefore fail.
24. It is unnecessary to deal with other issues raised on the papers.
Strictly speaking, the application was not urgent, but in
the
exercise of the court’s discretion it is in the interest of the
parties that the merits be decided. The respondent correctly
points
out furthermore that the applicant has not sought to attack the
decision to remove his name from the register, but in the
light of
the finding on the merits this point becomes academic. The applicant
has sought to sit on all chairs available in law
to an aggrieved
litigant seeking to take an administrative decision on review with an
eye to have it set aside. None of the arguments
advanced on his
behalf can affect the finding that the PET acted properly, correctly,
rationally, reasonably and in the public
interest in its dealings
with the applicant.
The matter is of importance to both parties. The respondent is
severely embarrassed by the registration of a candidate who was
not
duly qualified in a speciality as sensitive as neurosurgery. When
the papers were filed, the cause of the incorrect registration
had
still not been fully established. The dispute is of considerable
public importance. The respondent was therefore fully entitled
to
brief two counsel.
The following order is made:
The application is dismissed with costs, such costs to include the
costs of senior and junior counsel.
Signed at Pretoria on this 4th day of November 2013.
E BERTELSMANN
Judge of the High Court