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[2008] ZAWCHC 73
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Emergency Medical Supplies & Training CC v Health Professions Council of South Africa and Another (A15/2007) [2008] ZAWCHC 73 (12 December 2008)
REPUBLIC OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
(CAPE OF
GOOD HOPE PRO9VINCIAL DIVISION)
REPORTABLE
CASE No: A15/2007
In the matter between:
Emergency Medical
Supplies & Training CC Appellant
And
Health
Professions Council of South Africa First Respondent
Professional Board for Emergency
Care Practitioners Second Respondent
Judgment
delivered on 12 December 2008
__________________________________________________________________Counsel
on behalf of Appellant : ADV PAUL TREDOUX
Attorney(s) :
Messrs
Gillan & Veldhuizen Inc
: Suite B15 Westlake Square
: Westlake Drive Westlake 7945
Counsel
on behalf of Respondents : Adv HB SMALBERGER [SC]
: Adv S.K. HASSIM
[Pretoria High Court :
:
chambers]
Attorney(s) :
Messrs
Gildenhuys Lessing Malatji Inc
: c/o Jan S de Villiers P.O. Box 1474 Cape Town 8000
Date
on roll : 5 SEPTEMBER 2008
Reserved
Judgment : 5 SEPTEMBER 2008
Judgment
delivered : 12 DECEMBER 2008
Coram : MOTALA
J ET MANCA AJ
________________________
ELMARIE
JULIANA SIEVERS
SECRETARY
TO MOTALA J
Republic of South
Africa
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF
GOOD HOPE PROVINCIAL DIVISION)
REPORTABLE
CASE NO:
A15/07
In
the matter between:
EMERGENCY
MEDICAL SUPPLIES AND TRAINING CC (trading as EMS)
Appellant
And
HEALTH
PROFESSIONS COUNCIL OF SOUTH AFRICA
First
Respondent
PROFESSIONAL
BOARD FOR EMERGENCY CARE PRACTITIONERS
Second
Respondent
________________________________________________________________
Judgment delivered on 12 December 2008
________________________________________________________________
MANCA AJ:
[1] The appellant in this matter, Emergency Medical Supplies and
Training CC, had been accredited by the Professional Board for
Emergency Care Practitioners, the second respondent, to train certain
levels of emergency care practitioners. In December of 2006
that
accreditation was withdrawn and the appellant now appeals against
that decision.
The
statutory framework
[2] The first respondent, the Health Professions Council of South
Africa, was established by section 2(1) of the Health Professions
Act
No. 56 of 1974 ("the Act") and is the successor to what was
previously known as "
The South African Medical and Dental
Council
" and more recently as "
The Interim National
Medical and Dental Council of South Africa
".
[3] S 15(1) of the Act now makes provision for the establishment
of professional boards to carry out certain of the functions
which
were previously carried out by the single and all-encompassing
Medical and Dental Council. The second respondent,
viz.
the
board responsible for emergency care practitioners, was established
in 1998 and one of its objects is to control and exercise
authority
in respect of all matters affecting the training of persons in the
discipline of emergency care practitioners. Emergency
care
practitioners are colloquially referred to as "
paramedics
"
who practise in the pre-hospital setting, usually at the scene of a
calamity, where they stabilise the patient's condition
and ferry him
to a health establishment for further treatment.
[4] In terms of s 16 of the Act no person or educational
institution may offer or provide training unless the training to
be
so effected has been approved by the relevant professional board who
may attach such conditions and requirements to the approval
as deemed
fit by it.
[5] The following categories of emergency care practitioners are
registered under the auspices of the second respondent,
viz.
:
(i) Basic Ambulance Assistants ("BAA");
(ii) Ambulance Emergency Assistants ("AEA"); and
(iii) Critical Care Assistants ("CCA").
[6] S 20 affords an aggrieved person a right of appeal and
provides as follows:
"
20. Right to appeal
(1) Any person who is aggrieved by any decision of the council, a
professional board or a disciplinary appeal committee, may appeal
to
the appropriate High Court against such decision.
(2) Notice of appeal must be given within one month from the date
on which such decision was given.
"
The
decision appealed against
[7] Until December 2006 the appellant, a private college, had been
accredited by the second respondent to offer training in all
three of
the abovementioned categories.
[8] At a meeting held on 11 December 2006 the second respondent
resolved to terminate the applicant's accreditation to train
BAA, AEA
and CCA courses. That decision was communicated to the appellant's
attorney by the second respondent's attorney on 13 December
2006.
[9] The appellant felt aggrieved by this decision and on 12 January
2007 delivered a notice of appeal pursuant to the provisions
of s 20
of the Act.
[10] On 12 January 2008 the appellant's representative, Mr Craig
Northmore, deposed to an affidavit, which affidavit, he alleged,
served as the record of the appeal. This affidavit was not responded
to by the respondents.
The
interlocutory application
[11] During June 2008 the respondents launched an application ("the
interlocutory application") in which they sought
an order
declaring that the notice of appeal was given out of time,
alternatively that the appeal has lapsed, and an order that
the
appeal be struck from the roll with costs.
[12] In the alternative, the respondents sought an order striking out
the record filed by the applicant and substituting it with
what it
contended was the record of proceedings, alternatively that certain
paragraphs from the affidavit deposed to by Mr Northmore
be struck
out on the grounds that they were irrelevant and/or argumentative
and/or extraneous and/or vexatious and sought an order
that the Court
give directions as to the manner in which the appeal is to be dealt
with which would necessitate an order postponing
the appeal
sine
die
.
[13] The interlocutory application is opposed and answering and
replying affidavits have been delivered.
[14] The appellant and the respondents have also delivered heads of
argument. The respondents have not dealt with the merits of
the
appeal in their heads of argument, nor have they dealt with the
factual allegations contained in Mr Northmore's affidavit,
which he
contends is the record of the proceedings.
The
dispute
[15] The main issue that arises at this stage is what constitutes the
record on which the appeal is to be adjudicated. This issue,
which
arises if the appeal is not struck from the roll, resolves into an
enquiry whether the statutory right of appeal accorded
in s 20
of the Act constitutes a strict or wide appeal. The other issues
which the Court is called on to determine are whether
the appellant
gave its notice of appeal within one month from the date on which the
impugned decision was given; whether the appellant
prosecuted its
appeal timeously; and whether the respondents' application to strike
out is well-founded.
[16] I
will deal with each of these issues separately.
Is
the appeal a strict or wide appeal?
[17] The respondents contend that the appeal contemplated in s 20
of the Act is "
an appeal in the ordinary strict sense
"
and is a rehearing on the merits but is limited to the evidence or
information on which the decision under appeal was given
and in which
the only determination is whether that decision was right or wrong.
According to the respondents an appellant, in
such an appeal, is not
entitled to lead fresh evidence before the Court of appeal. The
respondents contend that the affidavit
deposed to by Mr Northmore is
not the record of proceedings appealed against and contains new
evidence and, as such, amounts to
an attempt by the appellant to lead
further evidence on appeal.
[18] The respondents contend that the appellant should have issued a
notice of motion supported by an affidavit, and be accompanied
by the
grounds of appeal and the record of the proceedings. This, according
to the respondents, was not done in this case.
[19] In support of the contention that the appeal in this case is "
an
appeal in the ordinary strict sense
",
Mr Smalberger
,
who appeared on behalf of the respondents, submitted that the
judgment of the Supreme Court of Appeal ("the SCA") in
Health Professions Council of SA v De Bruin
1
was authority for this proposition.
[20] In that case the respondent, Dr De Bruin, had been found guilty
of disgraceful conduct by a disciplinary committee of the
first
respondent's predecessor, the Interim National Medical and Dental
Council, and, in terms of the then applicable regulations,
the
disciplinary committee recommended his removal from the register of
practitioners. The finding and recommendation of the disciplinary
committee were accepted by the then Council.
[21] Dr De Bruin then launched review proceedings against the penalty
imposed and simultaneously appealed in terms of s 20
of the Act.
Both the review and appeal were upheld and his punishment was
substituted with a penalty of suspension from practice
for three
months. The Council then appealed, with the leave of the SCA,
against that decision.
[22] It is apparent from the judgment that the disciplinary
proceedings resulted in a full-blown hearing which lasted some five
days and that a record of those proceedings was kept.
[23] The process of confirming the finding and recommendation was
also recorded by the Council. It appears that Dr De Bruin made
written representations to the Council and made a request that his
lawyers make oral representations to the Council. That request
was
refused and the Council confirmed the finding and sentence.
[24] In its judgment the SCA found that the alleged grounds of review
upheld by the Court
a quo
were unfounded and held that the
review proceedings should not have succeeded.
[25] The SCA, however, held, that the same could not be said in
respect of the appeal against the sentence. In so doing, the SCA
remarked, in the context of explaining the difference between an
appeal and a review, that the appeal created by s 20 of the
Act
is "
an appeal in the ordinary sense
", i.e. "
a
rehearing on the merits but limited to the evidence or information on
which the decision under appeal was given, and in which
the only
determination is whether that decision was right or wrong
".
[26] In so doing, the SCA referred to
Thuketana v Health
Professions Council of South Africa
2
which in turn referred to
De La Rouviere v SA Medical and Dental
Council
3
and
Rosenberg v South African Pharmacy Boardi
4
.
[27] On an examination of these judgments it appears that they dealt
with an appellant who had sought to appeal against a decision
which
had been taken consequent upon a disciplinary hearing. In each case,
the disciplinary proceedings had been recorded and
there was no
difficulty in determining what constituted the record of the
proceedings.
[28] Most importantly, however, the decisions in
Thuketana
and
De la Rouviere
relied on the following passage from
Rosenberg
5
:
"
It is true that no procedure has been laid down in the Act
whereby such a person may bring his appeal before the Court, nor is
there
any provision in the Uniform Rules of Court specially tailored
to fit precisely an appeal against the decision of a body such as
the
respondent. Rule 53 is designed specifically for reviews, whether
from 'any inferior court' or from, inter alia, 'any board
performing
quasi-judicial functions'. Rules 50 and 51 are concerned only with
appeals from a magistrate's court. Rule 6, however,
which is
entitled 'Applications', is in extremely wide terms which are capable
of covering, in effect, all forms of relief other
than those
specifically provided for elsewhere. Sub-rule (1) provides that
every application, unless required to be brought by
way of petition,
shall be brought on notice of motion supported by affidavit; and
sub-rule (2) requires that when relief is claimed
against any person
the notice of motion is to be addressed to the Registrar and such
person. Sub-rule (5) provides for service,
in every application
other than one brought ex parte, of the notice of motion upon every
party to whom notice is to be given.
I can think of no valid reason
why an appellant under s 45(3) cannot, in the absence of special
rules regulating the manner
of his access to the Court, avail himself
of the provisions of Rules 6(1), (2) and (5). The notice of motion
would be addressed
to the Registrar and the Board and would be
accompanied by an affidavit and the grounds of appeal. In addition,
the record of
the proceedings would accompany the notice of motion;
if the appellant were otherwise unable to obtain a copy of the record
he
might invoke Rule 35(13) of the Uniform Rules. If the appellant
relied on any ground not derived from what was contained in the
record (eg an irregular act or omission on the part of the Board),
that could be revealed in the accompanying affidavit, to which
the
respondent Board would certainly have the right to reply. The
appellant could no doubt also, if he wished, institute review
proceedings if there were grounds therefor and the appeal and review
would no doubt be heard together.
"
[29] In
Rosenberg
the Appellate Division was dealing with an
appeal against a finding of a disciplinary committee which had
conducted a hearing into
the appellant's conduct and had kept a
record of such hearing. It was not dealing with the decision of a
board or a committee
taken at a meeting of such board or committee in
the absence of the appellant and where there is no record, in the
sense understood
when dealing with a hearing of a quasi-judicial
nature.
[30] It is immediately apparent when looking at the provisions of
s 20 of the Act that it grants a right of appeal against
the
decisions taken by three distinct bodies,
viz.
the Council
itself, one of the professional boards created under the Act, and a
disciplinary appeal committee referred to in s 10
of the Act.
[31] In each instance the form of the proceedings against which an
aggrieved person seeks to appeal may be different. The most
obvious
difference is that between a decision taken by the Council or one of
its professional bodies at an ordinary meeting in
the absence of an
interested party, as opposed to a decision taken at a disciplinary
hearing where a record of the proceedings
is kept.
[32] In my view,
De Bruin
is distinguishable from the facts of
this case and is not authority for the proposition that when the
appeal is against the decision
of a body such as the second
respondent taken in the absence of the interested person, the appeal
is limited to the evidence or
information on which the decision under
appeal was given.
[33] I am accordingly of the view that the appeal in this case is a
wide appeal and that the Court is not restricted to the information
which was before the second respondent when it made its decision.
Did
the appellant give its notice of appeal timeously?
[34] As I have already indicated, the decision against which the
appellant appeals was taken on 11 December 2006 but only
communicated to it on 13 December 2006. The appellant delivered
a notice of appeal on 12 January 2007.
[35] The respondents contend that the date from which the one month
period referred to in s 20(2) begins to run is the date
on which
the decision was "
taken
".
[36] I disagree.
[37] In
Lek v Estate Agents Board
6
this Court held that, under the common law, a decision taken by a
corporate or juristic person such as the Estate Agents Board
has no
legal efficacy until such time as it has been communicated to the
person affected thereby and that, until such communication
takes
place, there is no decision which could form the subject matter of an
appeal or a review.
[38] According to the Concise Oxford English Dictionary, Tenth
Edition, one of the meanings of the word "
given
" is
"
to communicate or impart a message
". The word
"
given
", as used in s 20 of the Act, must mean
communicated or imparted to the person aggrieved thereby. Any other
interpretation
would lead to a self-evident absurdity.
[39] In the circumstances,
the appellant's notice of appeal was not out of time.
Did the appellant
prosecute its appeal timeously?
[40] The respondents contend that the appellant failed to prosecute
the appeal timeously by taking over a year to file the record.
[41] It is not disputed that the task in preparing the record was
enormous and that the appellant's representative was overseas
for a
considerable period of time and had practical difficulties in
compiling the record.
[42] I am satisfied that, in the circumstances, the appellant did
prosecute the appeal within a reasonable period and that the
appeal
has not lapsed by reason of the delay.
The striking-out
application
[43] In their notice of motion the respondents sought, in the
alternative, that the record filed by the appellant (as contained
in
Mr Northmore's affidavit) be struck out and replaced with what they
considered to be the record of the proceedings. As a consequence
of
my finding that this is a wide appeal this relief must fail.
[44] The respondents, however, had a further alternative claim in
which they alleged that certain specific paragraphs of Mr Northmore's
affidavit fall to be struck out on the grounds that same were
irrelevant and/or argumentative and/or extraneous and/or vexatious.
[45] This aspect of the interlocutory application was not argued
before us and the respondents specifically reserved the right
to
argue these aspects at the hearing of the appeal if we did not uphold
the respondents' other contentions.
[46] In my view this was a sensible approach to the matter and I
accordingly make no order in relation to this aspect of the
respondents'
interlocutory application which will stand over until
the hearing of the appeal itself.
[47] There is one further matter. There are no prescribed rules
setting out the procedure to be followed by an aggrieved person
who
wishes to appeal against a decision made under the Act, nor is there
any provision in the Uniform Rules of Court which fit
precisely an
appeal in terms of the Act. In
Rosenberg
, however, the Court
held that such an appeal could be prosecuted by invoking the
provisions of Uniform Rule 6 and launching the
appeal by way of
notice of motion.
[48] In this case, the appellants chose to deliver a notice of appeal
which in due course was supplemented by Mr Northmore's affidavit.
Whilst this procedure is not incorrect, due to the fact that there is
no laid down procedure, it would have been preferable had
the
appellant followed the procedure suggested in
Rosenberg
.
However, in my view the notice of appeal can serve as a notice of
motion.
[49] The following order
is granted:
1. Save for the
respondents' application to strike out portions of Mr Northmore's
affidavit on the grounds that same are irrelevant
and/or
argumentative and/or extraneous and/or vexatious, the respondents'
interlocutory application is dismissed;
2. The appeal is postponed
sine die
;
3. The appellant's notice
of appeal is to stand as a notice of motion;
4. The appellant is
granted leave to supplement its papers, if so advised, within
twenty-one days of the date of this order;
5. The respondents are
granted leave to deliver an answering affidavit to Mr Northmore's
affidavit, as amplified, within two months
from the date of delivery
of any affidavit from the appellant, as contemplated in paragraph 4
of this order;
6. The appellant is
granted leave to deliver a replying affidavit thereto within one
month of the delivery of the respondents' answering
affidavit;
7. The respondents are
ordered to pay the appellant's costs in the interlocutory
application, save for any costs that may be attributable
to the
alternative application to strike, which costs are to stand over for
later determination.
____________________
MANCA AJ
Acting Judge of the High Court
I agree.
__________________
MOTALA J
Judge of the High Court
1
[2004] 4 All SA 392
(SCA) at 403.
2
2003 (2) SA 628
(T).
3
1977 (1) SA 85
(N).
4
1981 (1) SA 22
(A).
5
supra
, at 30A - 31C.
6
1978 (3) SA 160
(C) at 167I-168A.