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[2009] ZAGPPHC 356
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Ukwazi School Of Nursing (Pty) Ltd v Chairman Of The South African Nursing Council In His/Her Representative (16020/08) [2009] ZAGPPHC 356 (11 December 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COI.-RD PRETORIA
DATE:
11 DECEMBER 2009
CASE
NO: 16020/08
In
the matter between;
UKWAZI
SCHOOL OF NURSING (PROPRIETARY)
LTD Applicant
and
THE
CHAIRMAN OF THE SOUTH
AFRICAN Respondent
NURSING
COUNCIL IN HIS/HER REPRESENTATIVE
JUDGMENT
LF.GODIJ
1. In this
matter, the court had already given an order on the 4 August 2009 in
the following terms:
1.1
that the
resolution of the respondent contained in a letter dated the 5
October 2007 relating to the refusal to allow the applicant
to have
more intake of learners is reviewed and set aside.
1.2
that the
matter is remitted to the respondent for reconsideration within 60
days from date hereto,
1.3 the
respondent to pay the costs of the application.
2.
When the order was made it was indicated that reasons for the order
will be given on request. The respondents have since requested
reasons for the order that was made on the 4 August 2009. I now
proceed to give reasons.
3.
The applicant had initially sought relief as follows.
“
1.
That the resolution of the SOUTH AFRICAN NURSING
COUNCIL
contained in its la la dated 30 October 2007 be reviewed, corrected
and/or set aside;
2.
That the
said resolution be corrected to provide that the Applicant is allowed
a second intake the 40 learners per year for its
nursing auxiliary
program in terms of regulation 2176 at the Potchefstroom sub-campus,
alternatively that the said resolution refusing
an increase in the
numbers of learners and intake per year be set aside and remitted to
the SOUTH AFRICAN NURSING COUNCIL for reconsideration
and or
correction, within 60 days of the date of the order and;
3.
That the
Respondent be ordered to provide reasons for the resolution of the
SOUTH AFRICAN NURSING COUNCIL of 16 July 2007as set
out in its letter
of 30 October 2007 for refusing APPLICANTS application for an
increase in increase in the number of learners
and intakes per year
for its nursing auxiliary program in terms of regulation 2176 at the
Potchefstroom sub campus within 30 days
of the date of this order.
4.
Directing
that the costs of this application be paid by the Respondent.
5.
Further
and/or alternative relief.
4.
Just to give a brief background, the National Department of Education
in a letter dated the 6 December 2007 authorised the applicant
to
offer its Further Education Training qualifications without
registration until its application for registration was finalised.
That is the applicant was allowed to continue to offer Further
Education Training, until finalisation of its application for
registration.
5.
By the time the applicant was given the authorisation by the
Department of Education, the Respondent had already in a letter
dated
the 3 June 2001, conveyed its approval of enrolment of nursing
auxiliary pupils, of 3 intakes per year by 30 pupils for each
intake.
6.
Not long after the letter of the 3 June 2003 the applicant as early
as the 18 June 2003, applied for establishment of sub-campus
at
Potchefstroom in the North West Province for the training of nursing
assistants.
7.
Subsequent to the application referred to above, on the 6 April 2006
the respondent addressed a letter to the applicant in terms
of which
the applicant was informed that the application for the establishment
of a sub-campus at Potchefstroom was approved. Further
in paragraph
1.4 of the letter it was stated as follows:
“
1.4
The school has two options to choose from:
option
one-
“
One
(01) intake per annum of forty (40) learners per intake, option two-
Two (2) intake per annum of Twenty (20) learners per intake
8.
It is this decision as indicated in paragraph 1.4 of the letter of
the 6 April 2006 that the applicant complained about. On the
28
August 2006 the applicant applied for the approval of additional
clinical facilities and it also applied for the approval of
2 intakes
per year of 40 learners each.
9.
On the 30 October 2007, the Respondent addressed a letter to the
applicant in terms of which the respondent refused to approve
number
of learners from one intake of 40 learners per year to two intakes of
40 learners each per year. It is this decision that
prompted the
applicant to launch the present application.
10.
The applicant's cause of action can be summarised as follows:
10.1
that
the decision materially and adversely affects the rights and
legitimate expectations of the applicant,
10.2
that
the resolution could not reasonably have been taken having regard to
the information that was available to the respondent and
its previous
approvals in respect of the clinical facilities and the applicant
’
s
application for additional clinical facilities that at the rime
served before the respondent and was approved by the respondent.
10.3
that
the decision should be presumed to have been taken without reasons as
the respondent is said to have failed to give reasons
for its
decision.
11.
The respondent filed answering/opposing affidavit. In it. reasons for
the decision are given as follows:
11.1
that
the clinical facilities provided by the applicant were not sufficient
for placement of 90 learners per year, as the learners
would not be
able to gain pre requisite nursing experience.
11.2.that the
clinical facilities listed by the applicant being Potchefstroom
Hospital, Anneron Clinic and Thunas Hodgson Old Age
Home, could only
accommodate a total of 40 learners per annum and the applicant
therefore had to find more clinical facilities
to accommodate the
learners for their practical tutoring to justify an intake of 90
learners per annum.
11.3
that
the respondent is an institution and a public body that is of such a
standard and quality that the public is protected and
that the
quality of nursing remains of a high standard and therefore the
respondent has a responsibility to ensure quality training
in all the
fields of nursing, that nurses gain extensive and versatile
experience, and that they meet the pre requisite training
requirement.
12.
According to the respondent upon the application by the applicant for
90 learners intake, an investigation was conducted and
the followings
transpired:
12.1
in
January 2005 and after having performed accreditation process it was
resolved that a site visit be performed.
12.2
on
the 20 September 2005. an accreditation assessment of Thomas Hodgson
Old Age is said to have been performed and found that it
could only
accommodate 6 placements of learners at a time,
12.3
at
Annocron Clinic and Potchefstroom Hospital, only 34 placements could
be accommodated bringing a total of 40 learners*
12.4 during July
2007. the respondent is said to have accredited further clinical
facilities to ascertain if the applicant
’
s
request of an intake of 90 learners per year was justified,
12.5 at Groen
Wilgers Old Age Home, Samuel Broadbent Old Age and Fochville. the
Respondent is said to have found these facilities
to provide further
placement of 11 learners in total. In the respondent's opinion the
approval of the further three clinical facilities
did not mean an
increase in the learners per year could be justified. It is said that
the three further clinical facilities and
11 placements for learners
allowed for the reasonable situation that there was more exposure for
learners to the gain practical
experience form these facilities.
According to the respondent it provides a spread of clinical exposure
that would improve the
quality of experience of learners and not
quantity of learners.
12.6
the
applicant is said to have submitted additional plans for the learners
which expected that the learners would spend equal hours
in theory
and practice. This according to the respondent displayed that
learners would be classroom based and that their exposure
to clinical
facilities would be minimal.
12.7 the number
of clinical placement of learners in clinical facilities is said to
have been 51 per annum and that the facilities
available therefore
still could not justify an intake of 90 learners per annum.
12.8
according
to the respondent, the ration of theory and practical experience has
to be reasonable and be in accordance with good practice.
That is
normally the learners receive70% practical experience and 30% theory.
A learner has to attend a minimum of 1000 hours of
clinical
experience per annum.
13.
The applicant in its replying affidavit saw the assertion as set out
in 12.8 above as a misunderstanding of the applicant
’
s
clinical placement programme. That is, the programme was prepared on
the basis that the learners alternate between theoretical
training at
the clinical facilities. The one intake is said to attend the
theoretical training while the other receives practical
training at
the clinical facilities. The respondent is said to have erred in
considering the application on the basis that the
facilities for only
51 learners per annum. This is seen as a material and decisive error.
1 tend to agree and this had I bearing
in having the decision
challenged set aside and the matter be referred to the respondent for
reconsideration.
14.
The other point taken by the applicant was that, the respondent erred
in considering the application as if it was for the approval
of an
intake of 90 learners per annum. According to the applicant, the
approval which was sought was two intake of 40 learners
each, per
annum. This is said to have been intended that the learners in the
respective intakes would alternate between the clinical
facilities
and theoretical training. The respondent did not appear to have
considered the application as intended by the applicant.
It is also
on this basis that I made the order as I did.
15.
The decision by the respondent is also seen as having an
unjustifiable result of the already approved clinical facilities
being
unutilised for approximately 50% of the academic year whilst
the learners would be undergoing theoretical training, the converse
of the physical facilities at the school premises being utilized for
approximately 50% of the academic year also being true. This
is an
aspect which if it was proved to be true, could have a bearing on the
decision making by the respondent It is on this basis
that the matter
was remitted to the respondent for further consideration.
16.
The finding of the respondent on the requirement of a ratio between
theoretical and practical training of 50% to 70% is also
criticised
by the applicant as adding to the said misunderstanding by the
respondent of the applicant
’
s
operation. According to the applicant, it provides for the practical
clinical training of learners of 25 weeks of 40 hours per
week for
each of the two proposed intakes or 1000 hours in total at the time
of its compilation prior to respondent
’
s
meeting of 16 July 2007 being approved by the respondent. In
addition, its programme is said to provide for a further 101.5 hours
of practical training in the applicant's simulation laboratory. The
applicant's programme is therefore said to provide for a total
of
1102,5 hours of clinical training which is in excess of the minimum
requirements as prescribed. I also found this aspect could
be
verified by the respondent if it so wishes. Should it be proved to be
correct, then it would mean that the derision taken had
to be
reconsidered
17.
In conclusion, the order is still as indicated in paragraph I of this
judgment.
M
F LEGODI
JUDGE
OF THE HIGH COURT
CLAASSEN
COETZEE INC.
C./Q
PIE 1 VAN ZYL ATTORNEYS
ATTORNEYS
FOR THE APPLICANT
145
Walter Beckettweg
ARCADIA
TEL
012 342 2814
ROOTH
WESSELS MALULEKE
ATTORNEY'S
FORTHL RESPONDENT
Parc
Nouveau. 225 Veale St.
Brooklyn.
PRETORIA
TEL
0124524101
REF:
C HAMMAN/vvvdc/B 25248