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[2000] ZASCA 29
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Minister of Health and Another v Maliszewski and Others (624/98) [2000] ZASCA 29; 2000 (3) SA 1062 (SCA); [2000] 3 All SA 160 (A) (30 May 2000)
REPORTABLE
Case Number: 624 / 98
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter between :
THE MINISTER
OF HEALTH
First
Appellant
THE NATIONAL INTERIM MEDICAL AND DENTAL
COUNCIL OF
SOUTH AFRICA Second
Appellant
and
A M MALISZEWSKI
First Respondent
SAROLTA KERESZTES
Second Respondent
JAN HENDRIK JOSEF SZCZYGIELSKI
Third Respondent
MARTIN TUPY
Fourth Respondent
DANIELA TUPY
Fifth Respondent
JOVAN MILOVIC
Sixth Respondent
ILIA TODOROV EVREV
Seventh Respondent
RYSZARD GORBASZEWICZ
Eighth Respondent
MALGORZATA RADZIKOWSKA-WASIAK
Ninth Respondent
LEONID GOLDBERG
Tenth Respondent
T MARIUSZ TOMASZ PASZKIEWICZ
Eleventh Respondent
Composition of the Court
:
Smalberger,
Olivier, Scott, Plewman JJA and Melunsky AJA
Date of hearing
:
11 May
2000
Date of delivery
:
30 May 2000
SUMMARY
Registration of medical doctors with foreign qualifications -
extension of special dispensation given in 1991 by SA Medical and Dental
Council. Punitive costs order as regards unnecessary
exhibits.
J U D G M E N T
P J J OLIVIER JA
OLIVIER JA
[1]
This appeal is against the successful claim by the respondents in the
Transvaal Provincial Division of the High Court that they be
granted “full
registration” by the second appellant in terms of
the Medical, Dental and Supplementary Health Service Professions Act 56 of
1974
(“the Act”). The second appellant had refused such registration.
The trial judge, MacArthur J, ordered the appellants
jointly and severally to
register the respondents as medical practitioners without restrictions within
seven days from the date of
his order. He awarded the respondents their costs
of action. The judgment is reported as
Maliszewski and Others v Minister
of Health and Another
1999 (2) SA 399
(T). The appeal is before us
with leave of the court
a quo
.
[2]
The appellants are entrusted with the function of administering
the
health services in the Republic of South Africa. The second
appellant, which is the successor to the South African Medical and Dental
Council (“the Council”) is, in terms of the Act, called upon to
regulate and control the health professions, including
the registration of
medical practitioners. The first appellant (“the Minister”) is the
member of the executive branch
of government responsible for the administration
of the Act.
[3]
All the respondents are medical doctors who have passed the
primary medical examinations at certain overseas universities
(in Poland, Hungary, Slovakia, Serbia, Bulgaria and Russia) qualifying
them to
practise as general practitioners in these countries. They then immigrated to
South Africa. They were given so-called
“limited registration” by
the Council, which permitted them to work only in the public service, that is,
in government
or provincial hospitals. They have all worked in that capacity
for a number of years. They are now all permanent residents and
citizens of
South Africa.
[4]
The bone of contention in the present matter is that the
appellants
refused the respondents full registration because they
had not passed an examination known as the examination for full registration
(“the EFR”). It is a practical, clinical, oral examination similar
to the one set for South African medical students
at the end of their final
year. The appellants aver that in terms of the Act the respondents must sit
for and pass the EFR before
they can be granted full registration. Only then
would they be entitled to enter private practice as general practitioners.
In support of their contention the appellants rely on the provisions of the Act
and the regulations as at 29 October 1997 (“the
relevant date”),
being the date of the institution of the action.
[5]
The respondents contend that on the basis of their qualifications and
experience, they are entitled to equal treatment with South
African born citizens or with foreigners who acquired South African citizenship
and who were able to benefit from the so-called special dispensation granted in
1991
inter alia
to doctors in a situation similar to that in which the
respondents find themselves. In this regard it is common cause that the
respondents all acquired South African citizenship after 31 December 1991. It
was averred on behalf of the respondents that had
they acquired citizenship
before that date, they would have received full registration by special
dispensation because the Council,
having adopted the special dispensation, had
given full registration to doctors who before 31 December 1991 had both become
South
African citizens and had applied for registration. The
respondents’ case is that the said cut-off date was arbitrary; that
citizenship has no rational, reasonable, relevant or justifiable nexus with the
criteria for admitting the respondents to qualify
as general practitioners in
private practice; that the Council has the discretion to grant them full
registration on the same basis
as was provided for in the special dispensation,
and that the Council’s refusal to do so was unreasonable, biased and
mala fide
.
[6]
The recognition of foreign medical qualifications in South Africa for
the purpose of the registration of the holder thereof as a
medical practitioner is governed by the Act, which makes provision for
the
promulgation of regulations by the Minister. The relevant provisions are to be
found in ss 17, 24, 26, and 28 of the Act as
it then read, and two sets of
regulations, R2274 of 3 December 1976 and R1243 of 8 June 1990.
[7]
Sec 28 of the Act stipulates that doctors like the respondents
who
have only limited registration may qualify for full
registration provided they meet the following requirements :
(1) In terms of s 28 (1) (b) they must have held limited registration for at
least two years.
(2) In terms of s 28 (1) (c) (i)
they must, while so registered, have practised in South Africa for at least two
years of which at
least one year must have been at a public health facility
approved by the Council.
(3) In terms of s 28 (1) (c) (ii) they must submit a
certificate by the head of the health facility at which they practised
certifying
that they are “competent and of good
character”.
(4) In terms of s 28 (1) they may then apply to the Council
to sit for the EFR. In terms of s 28 (2) the EFR must be an examination
designed to ascertain whether the practitioner,
“(a) possesses professional knowledge and skill which is of a standard not
lower than that prescribed in respect of medical
practitioners ... in the
Republic;
(b) has sufficient knowledge of the laws of the Republic applying to medical ...
practice ... ; and
(c) is proficient in
at least one of the official languages of the Republic.”
The EFR can be taken at any South African medical school.
[8]
Only after the practitioner has passed the EFR and complied with all
the other requirements, is he or she entitled to full
registration (s 28 (4)).
[9]
Sec 28 (5) provides that the Council may partially exempt a
practitioner under limited registration from the EFR
requirement. The Council, however, was not competent to exempt the respondents
under this provision for the following reasons :
(a) Sec 28 (5) permits the Council to exempt only those practitioners
who have passed an examination which entitled them to limited registration
(“ELR”). With one exception, none of the
respondents had done the
ELR. They acquired limited registration during the temporary suspension of the
ELR requirement from 1990
to 1992. They accordingly did not qualify for
exemption in terms of s 28 (5).
(b) Sec 28 (5) in any event only permits exemption from part (a) of the
EFR. It does not permit exemption from parts (b) and (c). It accordingly
does not avail the respondents because,
* they refuse to sit for the EFR at all, and
* they
claim full registration without having done so.
(c) The respondents in any event never applied for exemption under s 28
(5) and did not allege that they had done so.
[10]
The respondents approached the Council for full registration during
the period 1995 to 1997. When the Council refused such
registration, they instituted action for
(1) An order striking down the aforesaid regulations as unconstitutional; and /
or
(2) An order in terms of which the Minister and
the
Council are jointly and severally compelled to register them as medical
practitioners without restriction within a period of seven
days from the date of
the court order;
(3) Costs of suit; and / or
(4) Further and / or
alternative relief.
[11]
The court
a quo
did not base its judgment on the invalidity
of the
aforesaid regulations, and granted prayers (2) and (3)
set out above. Before us, the attack on the validity or constitutionality
of
any provision of the Act or of the said regulations was abandoned.
[12]
Furthermore, it was correctly conceded by Mr Raath, counsel for the
respondents, that if one leaves the so-called special
dispensation out of account, the respondents would not be entitled to full
registration
because they have not presented themselves for the prescribed
examination. In order to establish a cause of action the respondents
were
constrained to rely on the special dispensation, the principle of equality and s
4 (g) of the Act.
[13]
The special dispensation is a striking illustration of the way in
which
bridges were built between the Old and the New South
Africa. The evidence,
inter alia
of Mr Prinsloo, the secretary of the
Council, was to the effect that the special dispensation was introduced in April
1991 in response
to the unique circumstances of that time. From 2 February
1990 the government had abandoned its policy of apartheid: the ban
on the
liberation movements was lifted, the armed struggle came to an end, and South
African exiles returned home. These exiles
included South Africans who had
studied and qualified as medical practitioners abroad, and the special
dispensation was devised to
facilitate their return to South Africa by easing
the normal requirements for the recognition of their foreign qualifications.
This dispensation was however intended and designed to be a once-off concession
in response to the unique circumstances of the time.
It was not intended or
designed to introduce lasting changes to the normal requirements for the
recognition of foreign qualifications.
[14]
The special dispensation was introduced in response to
representations made to the Council by a variety of medical and political
organisations in January 1991. Representatives of those
organisations met
with representatives of the Council on 10 January 1991.
The meeting
adopted a set of recommendations which were approved by the
executive
committee of the Council in March 1991 and ultimately by the
Council
itself in April 1991. These approved recommendations constituted
the
special dispensation.
[15]
The special dispensation applied to all South African citizens who
had qualified from or were enrolled at universities outside
South Africa before the end of 1991. The appellants’ witnesses,
Prinsloo
and Dr Becker, explained that, although the special dispensation was designed to
accommodate South African exiles and their
spouses, it was not possible and in
any event not practical to define this class of beneficiary in such a way that
only they qualified
for it. The class was not one that lent itself to a simple
definition capable of ready application, because those who had gone
into exile
had done so for such diverse reasons. That was why a wide definition was
adopted even though it would also include people
other than the exiles for whose
benefit the special dispensation was designed. For this reason, it applied
also to foreigners who
were not spouses of South African citizens, but who had
acquired South African citizenship by naturalisation before the cut-off
date.
[16]
Those who sought registration under the special dispensation had
to qualify and apply for it before the end of 1991. The
special dispensation was made subject to a cut-off date because it was intended
to be a once-off concession to returning exiles. There was no intention to
introduce a lasting change to the normal rules that
govern the recognition of
foreign qualifications, nor to introduce a policy to be followed in all future
cases, nor to introduce
a general practice.
[17]
The main features of the system of registration of practitioners
with
foreign qualifications under the special dispensation were
the following:
(a) They had to complete a year’s intern training, if they had not yet
done so.
(b) They were initially given limited
registration which allowed them to practise at an approved hospital or training
facility.
An effort was made to ensure that they were placed in departments
most suited to their training needs. Their heads of department
also had to
ensure that they were familiarised with local legal and ethical
norms.
(c) Their performance was monitored during the year. Their heads of
department had to render interim reports on their performance
to ensure that
corrective action was taken if they were not performing
satisfactorily.
(d) At the end of the year, their heads of department had to
report on their professional competence. Only those candidates who
were
certified to be sufficiently competent for full registration were granted full
registration. Those who were not certified
to be sufficiently competent for
full registration, had their limited registration extended for another year.
If after the second
year the head of the department again did not certify the
candidate sufficiently competent for full registration, the latter was
required
to pass a final year medical examination at a South African university.
[18]
The special rules in other words departed from the normal rules that
govern the recognition of foreign qualifications in the
following respects:
(a) Candidates were not required to do the ELR before they were granted limited
registration.
(b) They were carefully assisted and
monitored during their period of practice under limited
registration.
(c) They could qualify for full registration after one year of
practice under limited registration .
(d) They were not required to do the
EFR but only if their heads of department certified them to be sufficiently
competent for full
registration.
[19]
The complaint of the respondents, and their cause of action,
is
based on certain features of the special dispensation. They
do not contend that it was unreasonable for the Council to exempt returning
South African exiles from the normal rules.
[20]
They complain that those who qualified for full registration without
an EFR under the special dispensation, were not limited to returning exiles;
they included immigrants who differed from the respondents
themselves
only in that they had acquired citizenship before the cut-off
date at the end
of 1991: an immigrant who had obtained his or her medical
academic
qualifications at any one of the universities at which the
respondents also
qualified, was given full registration by virtue of the
special dispensation if
he or she had obtained South African citizenship
before 31 December
1999. But a person in a similar situation who acquired
South African
citizenship on 2 January 1992 would not qualify for the
dispensation and
would have to write the EFR. This includes the
respondents, all of
whom acquired South African citizenship after 31
December 1991.
[21]
The complaint of the respondents then is that they have been and
are being unfairly discriminated against by the Council : the
date 31 December 1991 was arbitrarily decided upon; had it been fixed
for a
later date - say the end of 1996 or 1997 - they would have qualified for the
special dispensation and would have been absolved
from taking and passing the
EFR. They therefore seek equal treatment with those of their fellow countrymen
who benefitted from the
special dispensation. Hence the prayer aimed at
compelling the Council to grant them full registration.
[22]
The court
a quo
upheld the respondents’ claims at
common law. It
found as follows:
(a) The Council’s refusal to exempt the respondents from the EFR
requirement for full registration was held to be administrative
in nature and
accordingly subject to review at common law under the rules applicable to the
exercise of an administrative discretion.
(b) The
only basis on which the Council distinguished between some of the practitioners
who were granted full registration under the
special dispensation without having
to do the EFR and the respondents who were refused full registration because
they had not done
the EFR was that the former had acquired South African
citizenship by the cut-off date at the end of 1991 while the latter had not.
This distinction was held to be entirely arbitrary and the Council was held to
have unreasonably discriminated against the respondents.
(c) The Council was held to have failed to take into account the particular
circumstances of the respondents.
[23]
One cannot but have sympathy for the respondents. They hold
degrees from internationally recognized universities, which
required a course of study of at least six years and a year of clinical
practice
thereafter. Their practical experience and competence in public health
institutions in South Africa have never been challenged.
Most of them are also
required to teach South African students, interns and registrars,
i.e.
medical doctors qualifying for their specialisation, and lead them to successful
completion of their examinations. It was not
contested that the working
conditions of practitioners in the public health sector are exceptionally
demanding and perhaps even more
onerous than the conditions in private practice.
They all have held limited registration for longer than the two year period
required
as one of the requirements for full registration. As limited
registration relates to registration as a general practitioner, it
follows that
the Council regarded the respondents as suitably qualified as general
practitioners
to be employed in the public health sector. Their personal
commitment to South Africa has been proved by their acceptance of
citizenship.
[24]
However, the relief sought in this action,
i.e.
a
mandamus
against the
Council compelling the latter to
give the respondents full registration without having to do the EFR, can be
granted only if this
Court can lawfully compel the Council to do so.
Considerations
ad misericordiam
cannot dictate the outcome of the
action.
[25]
As stated above, the respondents abandoned their attack on the
invalidity or unconstitutionality of any provision of the Act or
the regulations. On their behalf it was also, correctly, conceded
that they
are not entitled to full registration (and to the relief sought) merely by
relying on the provisions of the Act and the
regulations. In fact, having
regard only to these provisions, the respondents are not entitled to full
registration. The successful
participation by each candidate in the EFR is a
valid condition for full registration (s 28 (4)). The respondents have not
complied
with that requirement.
[26]
The respondents were driven to rely on the special dispensation, the
principle of equality and the discretion of the Council under s
4 (g) of the Act. Sec 4 (g) reads as follows :
“The council may -
(a) to (f)
.......
(g) upon application of any person, recognize any qualifications held by him
(whether such qualifications have been obtained in the
Republic or elsewhere) as
being equal, either wholly or in part, to any prescribed qualifications,
whereupon such person shall, to
the extent to which the qualifications have so
been recognized, be deemed to hold such prescribed qualifications.”
[27]
I will assume, without deciding, the following aspects in favour of
the
respondents :
(a) That they have complied with all the other requirements for full
registration provided for in the Act and all the relevant regulations,
i.e.
that all that stands between them and full registration is the
requirement that they pass the EFR.
(b) That their applications for registration should have been regarded as
including applications for the recognition of their qualifications
in terms of s
4 (g).
(c)
That the Council has not exercised its discretion in terms of s 4 (g)
of the Act,
i.e.
to recognise their qualifications as equal to the
prescribed South African academic qualifications, entitling them to
registration.
(Had the Council exercised this discretion against them, they
still would not have been entitled to the form of relief claimed
in this
action.)
(d) That the granting of the special dispensation was valid. (If not, the
respondents’ reliance on it and the basis of their
claims, fall
away.)
[28]
Against the aforegoing it needs to be stated, as far as the equality
argument is concerned, that the respondents have been treated on
the same basis as all the other foreign doctors immigrating to South
Africa who
have acquired citizenship after December 1991. Thus viewed, there is no
discrimination against the respondents. Nor
is there discrimination against
them
vis-a-vis
South African citizens by birth who qualified elsewhere
but sought registration after December 1991 in South Africa : they have to
pass
the prescribed examination (unless they qualified in certain countries whose
standards of training were by regulation accredited
as being on a par with those
of South Africa - which is not the case with the respondents). The only basis
for the reliance on
the equality principle lies in a comparison of the
respondents, who acquired citizenship after December 1991, and other foreign
doctors
in their position who acquired citizenship before that date.
[29]
The crucial question, therefore, is this : Are the respondents
entitled
to full registration by virtue of the provisions of, or by way of extension of,
the special dispensation?
[30]
As explained above, the special dispensation was a relaxation of the
normal requirements for full registration for a limited group of
individuals and for a limited time with a clear cut-off date. It
amounted to a
clearly defined exemption from the EFR. For the very reason that the Council
did not wish to establish the special
exemption as a general rule of practice or
to create expectations, the cut-off date was established and made known. As
with all
similar exemptions or exceptions or special dispensations, the cut-off
date was somewhat arbitrarily chosen, but it was not contended
by Mr Raath that
it was done so unreasonably or unfairly.
[31]
When the special dispensation came to an end, the statutory
provisions relating to full registration once again became applicable.
When the respondents applied for registration, the statutory
rules applied
and they had to comply with them.
[32]
There is no basis for extending the provisions of the special
dispensation to the respondents. The special dispensation, by
its very terms, is not applicable to them. They cannot rely on an
extension of
it, because it created no entitlement on which to rely; it did not establish a
policy or general practice binding the
Council in respect of future cases, nor
could it be said to have created a reasonable or legitimate expectation on the
part of the
respondents that they would be able to rely on it or benefit from
it. The respondents always knew what the requirements for full
registration,
applicable to them, were. They had either to pass the EFR or to approach the
Council under s 4 (g) to recognise their
qualifications as being equal, either
wholly or in part, to any prescribed qualifications. For individuals in the
position of the
respondents these requirements are neither onerous nor unfair.
It follows that the respondents have failed to prove a basis for
the application
of the equality principle and thus of compelling the Council to grant them full
registration.
[33]
In
Absa Bank Ltd v Davidson
2000 (1) SA 1117
(SCA) at
1126
paras [28] and [29] the attention of practitioners was once again drawn to
the displeasure of this Court at the habit of putting bundles of
unproved and
irrelevant documents before a trial Court and eventually a
Court of Appeal
(see also previous statements to that effect in
Government of the Republic
of South Africa v Maskam Boukontrakteurs (Edms)
Bpk
1984 (1) SA 680
(A) at 692 E
et seq
and cases there
cited;
Louw v WP Koöperatief Bpk en
Andere
[1994] ZASCA 54
;
1994 (3) SA 434
(A) at 447 D - 448 C). Practitioners have had
timely warning that special costs orders may be considered in appropriate
cases.
[34]
This warning was not heeded in the present instance. The record of
appeal contains 2445 pages of documents, representing a bundle
placed before the trial court and simply duplicated and thrust upon
this Court,
most of which was not relevant.
[35]
When the record for the appeal was prepared, the attorneys and
counsel well knew that the issue had been narrowed down to a
legal one: could the respondents rely on the special dispensation for
the relief
claimed by them? The record should have been pruned accordingly. On a
realistic assessment, no more than one third
of the record was necessary for the
appeal.
[36]
Counsel for the appellants were requested during the trial to
provide
the Court with an explanation for belabouring this Court
with an extraordinary number of irrelevant documents, and why a special costs
order should not be made against the appellants, who were responsible for the
preparation of the appeal record.
[37]
In a letter emanating from the appellants’ attorneys dated 18
May
2000, this Court was advised as follows:
“1 Dr Ashley Memela, a then recently qualified attorney, having served his
clerkship with Rooth & Wessels Inc., was mandated
to prepare the record.
Dr Memela was also the attorney who instructed counsel for the trial under the
supervision of Mr Griessel,
a then director of Rooth and Wessels
Inc.
2 Prior to the record being lodged, Dr Memela
was offered the position as Registrar of the second appellant. On his
appointment
Dr Memela resigned from this firm.
3 On the resignation of Dr
Memela, the extended time limit for lodging of the record became imminent as
result of which a second practitioner,
one Mr Young,
was mandated to attend to the preparation and lodging of the record. Because
he was not involved in the trial, and because of demanding
time constraints, Mr
Young was unable to distinguish between what should have been included in the
record and what documents were
superfluous. This judgment call [sic] to err on
the side of completeness and bore no desire to be avaricious or to be improper.
4 The transcribers apparently indicated that they were unable to prepare the
record without having access to all the exhibits.
Mr Young was unable to
locate the exhibits in the dossier of the court
a quo
. Because of his
limited knowledge of the specific documentation strictly required for purposes
of the record, Mr Young sought the
co-operation of the respondents’
attorneys to assist him with the preparation of the record. They rendered
their assistance
in reconstructing and compiling the record.
5 Both attorneys
inter alia
attended at the offices of the second
appellant to extract relevant minutes from the meetings which were referred to
in the evidence.
May we be afforded the opportunity to apologise profusely and unconditionally
for the preparation of the record and more so to the
extent that superfluous
documentation was included therein. It is clear from enquiries conducted by
the writer, that the mentioned
practitioners in our employment were erroneously
of the
bona fide
opinion that the entire and complete record with all
exhibits as it served before the court
a quo
, had to be prepared for
purposes of the appeal.”
[38]
While one can have sympathy with Mr Young, the explanation
furnished by the appellants’ attorneys does not put
forward an acceptable excuse. If Mr Young was not
au fait
with the
matter, he should have consulted a member of the firm who had dealt with the
matter at the trial stage or he should have
consulted counsel. Furthermore,
the attorney who was in charge of this matter during the trial stage, Mr
Griessel (and whose name
appears on the appeal record as the responsible
attorney), should have supervised the preparation of the record. He should
have
given proper instructions to Mr Young.
[39]
I bear in mind the warning that in considering a punitive costs
order,
a court should warn itself against using hindsight in
assessing the conduct of a party (see
A A Alloy Foundry (Pty) Ltd v Titaco
Projects (Pty) Ltd
2000 (1) SA 639
(SCA) at 648 par [20]). In the
present appeal, however, it is clear that no consideration at all was given to
the question of curtailing
the record, nor was proper supervision provided by
the attorney dealing with the matter.
[40]
In the result, I am of the view that a punitive costs order should
be
made against the appellants’ attorneys. In my view,
the appellants should not be entitled to recover any costs relating to
the
preparation, perusal and presentation of two thirds of the record from the
respondents, nor should the appellants’ attorneys
be entitled to recover
from its own client any such costs.
[41]
In the result the appeal must succeed. The following orders are
made:
(a) The appeal succeeds with costs, such costs to include the costs of two
counsel, but excluding the costs relating to the procural,
preparation, perusal
and presentation of two thirds of the appeal record.
(b) It is
ordered that the appellants’ attorneys shall not recover from their own
clients any costs relating to the procural,
preparation, perusal and
presentation of two thirds of the appeal record.
(c) The judgment of the court
a quo
is set aside and replaced by the
following order : “The action is dismissed with costs, such costs to
include the costs of
two counsel.”
P J J OLIVIER JA
CONCURRING
:
SMALBERGER JA
SCOTT
JA
PLEWMAN JA
MELUNSKY AJA