South African Veterinary Council and Another v Szymanski (79/2001) [2003] ZASCA 11 (14 March 2003)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2003
>>
[2003] ZASCA 11
|

|

South African Veterinary Council and Another v Szymanski (79/2001) [2003] ZASCA 11; 2003 (4) SA 42 (SCA); 2003 (4) BCLR 378 (SCA) (14 March 2003)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case no: 79/2001
REPORTABLE
In the matter between:
SOUTH
AFRICAN VETERINARY COUNCIL
First
Appellant
REGISTRAR,
SOUTH AFRICAN VETERINARY COUNCIL
Second
Appellant
and
GREG
SZYMANSKI
Respondent
Before: Howie P, Olivier, Streicher, Cameron and Lewis JJA
Heard: Tuesday 25 February 2003
Judgment: Friday 14 March 2003
Legitimate expectation – minimum requirements for invoking –
must be a representation – and reliance upon it must be reasonable
– Motion court proceedings – dispute of fact – basic position
restated
JUDGMENT
_______________________________________________________
CAMERON JA:
This is an appeal against an order of the Pretoria High Court which
set aside an examination pass mark decision of the first appellant,
the South African Veterinary Council (‘the Council’) (whose
Registrar is the second appellant), and which ordered the Council
to
register the respondent, Dr Szymanski, as a veterinary surgeon. The
Court of first instance (Motata J) refused leave to appeal,
but this
Court later granted the necessary leave.
The dispute arose from a special examination the Council conducted
in September 1998 to enable South African citizens or permanent
residents with foreign veterinary qualifications to qualify for
registration under the South African legislation.
1
Dr Szymanski obtained a veterinary degree in Poland in 1978. He
immigrated to South Africa in 1989, becoming a citizen by
naturalisation
in 1994. He sat the special examination in 1998.
After moderation he was awarded a combined mark of 45,25% for the
two component
parts (written and oral). This the Council considered
a failure, and refused to register him. In September 2000 he
launched proceedings
in the Pretoria High Court. The relief he
sought was an order setting aside the Council’s decision that the
pass mark was 50%,
and requiring it to register him as a veterinary
surgeon.
The case Dr Szymanski made in his founding affidavit was that he had
a legitimate expectation that the requirement for passing
the
special examination was 40% for each of the oral and written parts
(and not 50% for either or both combined). He claimed the
expectation arose from (a) pre-examination letters the Council sent;
and (b) conversations he had in August 1998 with one of its
members,
Professor Rautenbach, who was conducting a preparatory course on
behalf of the Council for special examination entrants.
To see
whether Dr Szymanski made out a case at all, and whether he was
entitled to the relief he obtained, it is necessary to
set out the
details of both aspects of the claimed expectation.
The Council wrote to Dr Szymanski on 13 June 1997 informing him of
the special examination. Attached were two documents –the
first
headed ‘Special Examination Curriculum’ and the second ‘Special
Examination for Registration as a Veterinarian –
General
Information’. The ‘Curriculum’ makes it clear that the
special examination consists of two parts – a three-hour
written
examination (consisting of three sections, whose subject-matter is
specified); and a practical/oral examination. At its
foot the
document states:
‘
Candidates
must obtain a sub-minimum of 40% in both sections of the evaluation
procedure and registration will follow on ratification
of results by
SA Veterinary Council.’
The ‘General Information’ gives details such as application
procedures, venue, enrolment dates and examination fee. Its
concluding
section is ‘Special examination information’:
‘
7.1 The examination consists of two parts namely:
a three hour
written examination and a practical/oral examination as set out in
the Curriculum.
7.2 A minimum mark of 40% must be obtained in both the
written and practical/oral examination.
…’
Dr Szymanski then applied to write the special examination and paid
a registration fee. He states in his founding affidavit that
he
believed on the basis of these letters that he ‘needed a minimum
of 40% in the written and practical/oral examination in order
to be
registered’.
In August 1998 he attended the Council’s preparatory course.
There he saw a letter of 31 July 1998 the Council had sent to a
colleague on the course (he says he received his own copy only
later). The letter enclosed the ‘venues, dates, times, template,
rules and list of procedures’ for the upcoming examination. It
urged candidates to contact the Council should they require any
further information. The attachments included a document entitled
‘SAVC Registration Examination: Administrative Rules’.
This
stated:
‘
3.13 A subminimum of 40% is required for each section
and the practical/oral examination as well as a final combined mark
of at least
50% in order to pass the Examination for registration
with the Council.
3.14 Council
does not accept responsibility for incorrect information obtained
from unauthorised persons on examinations arrangements/or
results.
All enquiries must be made to the Secretariat.’
Dr Szymanski states that he was ‘immediately concerned’ to read
this document – but considered that it ‘must be a standard
form
attached to all such notices and aimed at the usual registration
examination and not the special examination’. To put his
mind at
ease, however, he approached Rautenbach and asked him for
‘clarification as to the correct position with specific reference
to what the pass requirement was, ie either an average of 50% on the
specially combined mark or 40% on the oral/practical and 40%
on the
written exam’. He states that Rautenbach undertook to approach
the Council. The next day Rautenbach reported back that
he had
discussed the matter with its president, Professor Terblanche, who
had informed him that candidates writing the special
examination
could ignore the ‘Administrative Rules’, since these had been
sent in error to special entrants. Dr Szymanski
says he was now
convinced that to pass he needed only 40% in each of the
oral/practical and written examinations.
The Council also sent out a letter dated 14 August advising
candidates that, having been told in June 1997 that a sub-minimum of
40% was required in only the written and oral examinations (as a
whole), they should ignore the further suggestion in the July
1998
letter that a sub-minimum was required
in each section
of
each examination (even though the latter was in accordance with
Council policy). Dr Szymanski claimed to have received this
letter
only after the examination (which the Council disputes). He says it
took him ‘completely by surprise’ and that he could
not believe
that the Council could ‘send such a notification’ after the
examination, which he had sat with the aim of obtaining
only 40%.
The Council in its opposing depositions strongly denied that,
properly interpreted, its letters could mean that the pass mark was
only 40%. Even more emphatically, the Council disputed in detail
that in August Rautenbach ever discussed the overall pass mark
with
special examination entrants. On its version, the only question
Rautenbach discussed with them, and the only issue he raised
with
Terblanche, was the apparent stipulation (suggested in the
‘Administrative Rules’) that the sub-minimum requirement applied
not only to the written paper as a whole, but to each section of it.
It was on this issue that Rautenbach, after consulting with
Terblanche and the Council’s assistant registrar, Ms Havinga (who
faxed a contemporaneous query to the Council’s examination
officer, Professor Veary), gave the assurance that the sub-minimum
did not apply to each section.
The Council’s president, Terblanche, Rautenbach himself and
Havinga, attested to these averments. Havinga attached her memo
to
Veary. It deals with the confusion about the application of the
sub-minimum requirement to each section of the written examination
–
but makes no reference to the overall pass mark.
These affidavits confronted the Court below with two connected
issues. The first was a preliminary question – did Dr Szymanski’s
founding papers make out a case that his belief that the pass mark
was 40% was reasonable? Unless on his own account (leaving
aside
for the moment the Council’s affidavits), he made out such a case,
there could be no question of his relying on a ‘legitimate
expectation’. But even if he passed this hurdle, the second
question was whether, given the Council’s denial that the overall
pass mark was ever discussed, he was entitled to relief on the
papers as a whole.
In answering both questions the starting point is of course that the
Council is a statutory body
2
to which the constitutional requirements of just administrative
action applied. These entitled Dr Szymanski to action from the
Council that was ‘lawful, reasonable and procedurally fair’.
3
The first question concerns the bare case an applicant must make out
to be able to invoke the legitimate expectation doctrine.
The
second question raises elementary issues about the conduct of motion
proceedings. In my view both questions cannot but be
answered
against Dr Szymanski, and in granting him relief the Court below
strayed far from a proper approach.
(a) Basic requirements for a legitimate expectation
The order the Court below granted went very far indeed. It did not
merely set aside the Council’s decision about the pass mark.
Nor
did it remit the matter to the Council to reconsider its decision
that Dr Szymanski had failed. There was no finding –
and no basis
for a finding – that the Council had acted in bad faith or was
unable, unwilling or unfit to perform its duties.
The order granted
nevertheless by-passed the Council and conferred on Dr Szymanski a
statutory benefit (registration as a veterinary
surgeon) in respect
of which the legislature entrusted the Council itself with heavy
responsibilities.
4
The propriety of the order given in this form was open to serious
question, not least because it is by no means clear that a
legitimate
expectation can found an extra-procedural entitlement
such as the substantive benefit claimed here. Though this Court has
recently
cautioned against an over-hasty answer to this ‘difficult
and complex’ issue, and has suggested that the substantive
legitimate
expectation doctrine may have been developed to deal with
problems of English law that do not exist in our law,
5
this case does not require us to resolve the issue. This is because
Dr Szymanski’s case was deficient in its most basic essentials.
His case was that the Council had created an expectation, in the
first instance in its correspondence, that the pass mark for the
special examination was 40%. But this is not so. Neither the 1997
nor the 1998 documents, nor those documents taken together,
represent that the pass mark is 40%. The ‘Curriculum’ of June
1997 refers explicitly to the ‘sub-minimum’ of 40% that
candidates must obtain in both the written and oral examinations. A
‘minimum’ means the least permissible or possible. A
‘sub-minimum’ therefore suggests an additional requirement below
the minimum, and in argument counsel for Dr Szymanski rightly
conceded that ‘sub-minimum’ entailed that there must be an
additional applicable minimum. This by unavoidable inference had
to
be one above the sub-minimum.
That is exactly what the Council conveyed when it said in June 1997
that candidates must obtain a ‘sub-minimum’ of 40% in both
the
oral and written examinations. The other minimum contemplated was
the overall pass rate, which the ‘Curriculum’ does not
mention,
but which by implication was clearly not 40%.
It is true that the ‘General Information’ of June 1997 does not
refer to a ‘sub-minimum’, but merely to a ‘minimum’
of 40%.
But, equally, it does not state that the
pass mark
is 40%.
No Council document contains such a representation. At best for Dr
Szymanski (and at worst for the Council) the varying
statements
about minima and sub-minima created confusion. Counsel for Dr
Szymanski was driven to charge the Council with responsibility
for
‘too many mistakes and misperceptions’. But subjective
confusion by itself is no basis for a legitimate expectation.
Still
less can misinterpreting the words or actions of an authority give
rise to a legitimate expectation.
6
The requirements relating to the legitimacy of the expectation upon
which an applicant may seek to rely have been most pertinently
drawn
together by Heher J in
National Director of Public Prosecutions v
Phillips and Others
.
7
He said:
“
The law does not protect every expectation but only
those which are 'legitimate'. The requirements for legitimacy of the
expectation,
include the following:
(i) The representation underlying the expectation must
be 'clear, unambiguous and devoid of relevant qualification': De
Smith, Woolf
and Jowell (op cit [
Judicial Review of Administrative
Action
5
th
ed] at 425 para 8-055). The requirement is
a sensible one. It accords with the principle of fairness in public
administration, fairness
both to the administration and the subject.
It protects public officials against the risk that their unwitting
ambiguous statements
may create legitimate expectations. It is also
not unfair to those who choose to rely on such statements. It is
always open to them
to seek clarification before they do so, failing
which they act at their peril.
(ii) The expectation must be reasonable:
Administrator,
Transvaal v Traub
(supra
[1989] ZASCA 90
;
[1989 (4) SA 731
(A)] at 756I - 757B);
De Smith, Woolf and Jowell (supra at 417 para 8-037).
(iii) The representation must have been induced by the
decision-maker: De Smith, Woolf and Jowell (op cit at 422 para
8-050);
Attorney-General of Hong Kong v Ng Yuen Shiu
[1983] UKPC 2
;
[1983] 2
All ER 346
(PC) at 350h - j.
(iv) The representation must be one which it was
competent and lawful for the decision-maker to make without which the
reliance cannot
be legitimate:
Hauptfleisch v Caledon Divisional
Council
1963 (4) SA 53
(C) at 59E - G.”
Adopting and applying this exposition, which is supported also by
the decision of the Constitutional Court in
President of the
Republic of South Africa and Others v South African Rugby Football
Union and Others
,
8
it is plain that Dr Szymanski’s case was defective from the
outset. He may subjectively have had an expectation. But his
expectation
fails to meet criteria (i) and (ii) (making it
unnecessary to consider any further requisites). There was no
representation that
the pass mark was 40% – let alone a clear,
unambiguous and unqualified representation. Nor was Dr Szymanski’s
expectation
to that effect reasonable.
It is worth emphasising that the reasonableness of the expectation
operates as a pre-condition to its legitimacy.
9
The first question is factual – whether in all the circumstances
the expectation sought to be relied on is reasonable. That
entails
applying an objective test to the circumstances from which the
applicant claims the expectation arose. Only if that test
is
fulfilled does the further question – whether in public law the
expectation is legitimate – arise. In the present case,
it was
not in my view reasonable for Dr Szymanski to conclude on the basis
of the June 1997 letters from the Council, however ambiguous
or
confusing they may have been, that the pass mark was 40%. No
legitimate expectation could therefore have been created.
Certainly the ‘Administrative Rules’ the Council sent out in
July 1998 removed any doubt there may have been. These stated
that
the sub-minimum was required in each of the oral and written parts
in addition to a combined mark of at least 50%. Dr Szymanski
on his
own account saw this document before taking the examination, and
realised that it was at odds with the impression he said
he gained
from the previous correspondence. He claimed however to have
concluded that the ‘Rules’ were inapplicable, and to
have
received confirmation of his impression from a conversation with
Rautenbach. This entails consideration of the second aspect
of the
case, namely the extensive disputes of fact that appear from the
affidavits.
(b) Disputes of fact in motion court proceedings
It is an elementary rule of motion proceedings that an applicant
cannot succeed in the face of a genuine dispute of fact that is
material to the relief sought. Conflicting averments under oath
cannot be tested on affidavit but only by oral evidence. Nearly
80
years ago Innes CJ explained that
‘
The reason is clear;
it is undesirable in such cases to endeavour to settle the dispute of
fact upon affidavit. It is more satisfactory
that evidence should be
led and that the Court should have an opportunity of seeing and
hearing the witnesses before coming to a
conclusion.’
10
Innes CJ added a significant qualification: ‘where the facts are
not really in dispute … there can be no objection, but on
the
contrary a manifest advantage in dealing with the matter by the
speedier and less expensive method of motion’.
11
This qualification, endorsed in the subsequent classic expositions
on the subject,
12
led to a gradual but not inconsiderable relaxation of the criteria
for determining whether despite a factual dispute relief can
be
granted in affidavit proceedings. Most notably, Corbett CJ in
Plascon-Evans Paints Ltd v van Riebeeck Paints (Pty) Ltd
13
amplified the ambit of uncreditworthy denials that would not
impede the grant of relief. He extended them beyond those not
raising
a real, genuine or bona fide dispute of fact, to allegations
or denials that are ‘so far-fetched or clearly untenable that the
Court is justified in rejecting them merely on the papers’.
14
This much is elementary, but necessary in view of the course the
proceedings took in the Court below. The case involved review
of a
decision of a statutory body. The applicant therefore had no choice
but to proceed by way of notice of motion.
15
But once the Council had raised a genuine dispute about Dr
Szymanski’s factual exposition, one that was material to the
relief
he sought, it was not proper for the Court to grant him
relief on the papers. The disputed issues should have been referred
for
the hearing of oral evidence, or for trial.
16
Provincial division practice may sometimes be robust (in my view
often rightly so) in applying Corbett CJ’s category of
‘far-fetched
or clearly untenable’ denials. But the approach in
the present case went far beyond robust. Relief was granted despite
the
Council’s comprehensive and detailed denials, supported by
contemporaneous notes and correspondence. The judge below
considered
that the matter could be approached on a ‘balance of
probability’, and concluded that it was ‘improbable’ that any
dispute
existed with regard to the application of the minimum
requirement (as opposed to the pass mark). In this he erred
appreciably,
and to the detriment of all the parties, including Dr
Szymanski, who has been put to the expense of defending a judgment
on appeal
in circumstances where it was extremely difficult to do
so.
As pointed out earlier, the Council denied that the pass mark had
ever been discussed with special examination entrants. This
much Dr
Szymanski’s counsel accepted. But he contended that Terblanche
and Rautenbach failed to deny explicitly that Terblanche
informed
Rautenbach that July 1998 ‘Administrative Rules’ had gone out in
error. He also sought to demonstrate through detailed
analysis that
the document pertained to the Council’s ordinary examinations, and
not the special examination at issue here.
Hence he contended that
Dr Szymanski was entitled to conclude that the ‘Rules’ had been
sent in error, and it was likely that
Rautenbach had told him so.
These
submissions are incorrect. First, Terblanche and Rautenbach
specifically deny that examination entrants were ever told that
the
‘Administrative Rules’ could be ignored or were sent out in
error. Terblanche (the main deponent authorised by the Council)
denies ‘each and every allegation’ in the relevant portion of Dr
Szymanski’s account. He also denies ‘particularly’
that he
indicated to Rautenbach,
or that the latter communicated to the
students
, that the rules had been sent in administrative error,
or that any of the rules could be ignored. Rautenbach’s
subsidiary deposition
confirms that of Terblanche. Rautenbach adds
‘more particularly’ that the only discussion he ever had with Dr
Szymanski concerned
the application of the sub-minimum to the
different sections of the written examination, and that it was never
indicated to him
that Dr Szymanski was under the impression that the
50% pass mark did not apply. Hence it was never discussed.
Second,
as I have shown, the Council’s explicit and detailed denials
rendered the matter incapable of decision by affidavit on
the
probabilities. At best for Dr Szymanski, the apparent discordance
between the examination format the ‘Administrative Rules’
envisaged and the special examination format gave rise to confusion.
This of course is why he approached Rautenbach, with an upshot
that
brings us back to the irresoluble conflict between the depositions.
The
reasons set out earlier also entail that Dr Szymanski’s attempt to
invoke what he called a ‘statutory contract’ between
him and the
Council regarding a 40% pass mark must fail. The Council made no
offer and there was thus none to accept. For similar
reasons there
can be no question of an estoppel.
In these circumstances the relief should plainly not have been
granted. There was some difference before us as to whether either
party asked the Court below to refer the matter for evidence. In
his written argument counsel for Dr Szymanski stated that he
invited
the Court below during argument to refer the matter for the hearing
of evidence ‘should it have deemed it necessary’.
But in
argument he correctly did not persist with this.
To summarise: on Dr Szymanski’s own averments his correspondence
with the Council did not establish that it represented to him
that
the pass mark was 40%. And his belief that this was so was not
reasonable. No question of a legitimate expectation could
therefore
arise. In addition, the Council’s detailed denial of his
allegation that one of its members told him to ignore the
document
making it clear that the overall pass mark was 50% raised a real and
substantial dispute of fact that could not properly
be decided on
the papers. The application therefore had to fail.
The appeal succeeds with costs. The order of the Court below is set
aside. In its place there is substituted:
‘The application is dismissed with costs.’
E CAMERON
JUDGE OF APPEAL
CONCUR:
HOWIE P
OLIVIER JA
STREICHER JA
LEWIS JA
1
Veterinary and Para-Veterinary Professions Act 19 of 1982 (‘the
1982 Act’).
2
Established under s 2 of the 1982 Act.
3
1996 Constitution s 33. The Promotion of Administrative Justice Act
3 of 2000 (s 3(1) of which explicitly refers to ‘legitimate
expectations’) came into force on 30 November 2000, after the
events in issue.
4
1982 Act sections 20 and 22 to 28.
5
Meyer
v Iscor Pension Fund
, 391/2001, decision of 28 November 2002,
para 27 (Brand JA, Harms JA, Cameron JA, Navsa JA and Jones AJA
concurring).
6
De Smith, Woolf and Jowell
Judicial Review of Administrative
Action
(5 ed 1995 by Woolf and Jowell) para 8-055, citing
immigration appeal cases not available in the Court’s Library or
on-line.
7
2002 (4) SA 60
(W) para 28.
8
2000 (1) SA 1
(CC) para 216, referring to the reasonableness
requirement, and stating that the question is more than the factual
question whether
an expectation exists in the mind of a litigant
‘but whether, viewed objectively, such expectation is, in a legal
sense, legitimate’.
9
See Lord Diplock’s speech in
Council of Civil Service Unions
and others v Minister for the Civil Service
[1983] UKHL 6
;
[1984] 3 All ER 935
(HL) at 949
h
-
j
.
10
Frank v Ohlsson’s Cape Breweries Ltd
1924 AD 289
at 294.
11
pp 294-295.
12
Peterson v Cuthbert & Co Ltd
1945 AD 420
428;
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA
1155
(T) at 1162.
13
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634-635.
14
Drawing on the minority judgment of Botha AJA in
Associated South
African Bakeries (Pty) Ltd v Oryx & Vereinigte Backereien (Pty)
Ltd en Andere
1982 (3) SA 893
(A) at 924A.
15
Rule of Court 53.
16
Rule of Court 6(5)(g).