Emergency Medical Supplies and Training CC t/a EMS v Health Professions Council of South Africa and Another (A15/07) [2011] ZAWCHC 393 (28 October 2011)

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[2011] ZAWCHC 393
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Emergency Medical Supplies and Training CC t/a EMS v Health Professions Council of South Africa and Another (A15/07) [2011] ZAWCHC 393 (28 October 2011)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
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
CORAM
: J M HLOPHE JP & D H
ZONDI J
JUDGMENT
BY
: J M HLOPHE JP
& D H ZONDI J
FOR
THE APPELLANT
:
ADV. P TREDOUX & ADV. C CUTLER
INSTRUCTED
BY
: GILLIAN &
VELDHUIZEN INC.
FOR
THE RESPONDENTS
:
ADV. D I BERGER & ADV. T MANCHU
INSTRUCTED
BY
: GILDENHUYS
LESSING MALATJI INC.
DATE
OF HEARING
: MAY
& 30 MAY 2011
DATE
OF JUDGMENT
: 28
OCTOBER 2011
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
REPORTABLE
CASE
NO.: A15/07
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 28 OCTOBER 2011
HLOPHE
JP&ZONDIJ
INTRODUCTION:
[1]
This is an appeal in terms of section 20 of the Health Professions
Act No 56 of 1974 ("the Act").
[2]
The appellant in this matter, Emergency Medical Supplies and Training
CC is a close corporation registered in terms of the Close

Corporations Act 69 of 1984 and had been accredited by the second
respondent, the Professional Board for Emergency Care Practitioners,

to conduct emergency care training to practitioners.
[3]
The first respondent, the Health Professions Council of South Africa,
is a statutory body established in terms of section 2(1)
of the Act.
[4]
The second respondent, the Professional Board for Emergency Care
Practitioners ("the Board") is also a statutory body

established in 1998 in terms of section 15(1) of the Act and carries
out certain functions in terms of the said Act. One of its
functions
or objects is to control and exercise authority in respect of all
matters affecting the training of the emergency care
practitioners.
[5]
Section 16 of the Act provides that no person or educational
institution may offer or provide training unless the training to
be
provided has been approved by the relevant body who may attach such
conditions and requirements as it deems necessary.
[6]
The following categories of emergency care practitioners are
registered under the auspices of the second respondent:
i.
Basic Ambulance Assistants
("BAA");
ii.
Ambulance Emergency Assistants
("AEA");
iii.
Critical Care Assistants
("CCA").
[7]
Section 20 of the Act affords any party aggrieved by the decision of
the second respondent a right to appeal and provides as
follows:
"20.
Right to Appeal
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 a decision.
Notice
of appeal must be given within one month from date on which the
decision was given"
[8]
Advocate P. Tredoux and C. Cutler appeared on behalf of the appellant
and Advocate D.J. Berger S.C and I. Manchu appeared on
behalf of the
respondents.
[9]
The basis for the appeal as alleged by the Appellant, is that the
second respondent erred in its decision to withdraw the appellant's

accreditation and failed to take into account the evidence that was
presented to it. The appellant seeks to have the decision set
aside.
The respondents oppose the relief sought by the appellant.
FACTS:
[10]
The appellant first applied to the second respondent to be accredited
to conduct four BAA courses. The application was submitted
on 1 July
1999 on the prescribed 169 form that was provided for by the
respondent.
[11]
The form itself required the appellant to state the number of courses
it intended to teach. The appellant indicated that it
intended to
offer four BAA courses. The application was considered by the Board
and an investigation team was sent to inspect the
premises and
equipment of the Appellant.
[12]
Pre-accreditation evaluations were conducted at the appellant's
premises and a final decision was taken by the second respondent.
Its
decision was communicated by the Acting Registrar of the first
respondent to the appellant by way of a letter indicating that

accreditation had been granted.
[13]
The same procedure was followed with each of the appellant's
following applications, being the AEA and CCA applications. On
10
November 1999 the appellant applied to conduct three AEA courses and
between 2 November 2002 and February 2003 the appellant
applied to
conduct one CCA course.
[14]
The pre-accreditation report for the CCA accreditation was conducted
by Mr. A Dhai together with Mr. B Keruparshad and Dr G
Dalbock. Mr
Dhai also moderated the appellant's October 2003 CCA examinations
wherein 13 students partook in the examinations.
More about Mr.
Dhai's role in this matter will be discussed at a later stage.
[15]
Each year since 1999 when the appellant first obtained its
accreditation until the date upon which its accreditation was revoked

by the second respondent, the appellant would provide the second
respondent with annual reports detailing the number of courses
it had
conducted during a specific year and the number it intended to
conduct the following year.
[16]
By the end of 2004 the appellant, in its annual report, stated that
it had conducted eleven BAA, five AEA and two CCA courses.
[17]
In 2005 the second respondent received an anonymous letter making
material allegations against the appellant. The allegations
were
that:
The
appellant was training beyond its accreditation;
The
appellant used newly qualified students as examiners;
The
instructors were not appropriately qualified;
Mr.
Tucker who was a member of the appellant completed his AEA and CCA
through the appellant.
[18]
On 19 October 2005 the second respondent, through its appointed
representatives, Mr. C Lambert and Mr. N Naidoo, visited the

appellant and made the principal, Mr Craig Northmore aware of the
allegations levelled against the appellant.
[19]
The appellant's formal response came by way of a letter dated 3
November 2005 from its attorneys of record, Gillian & Veldhuizen

Inc. This response was presented to the executive committee of the
second respondent.
[20]
On 8 December 2005 the second respondent wrote to the appellant
pointing out amongst other things that the appellant was only

accredited to conduct four BAA courses, three AEA Courses and one CCA
course.
[21]
In response thereto the appellant wrote a letter dated 12 December
2005 to the second respondent denying that it was training
beyond its
scope of accreditation. It also pointed out that the accreditation
letters in respect of the BAA and AEA courses were
silent on the
number of courses the appellant could offer and that accreditation
for the CCA examination was granted orally and
was silent on the
number of courses that the appellant could offer provided there was a
maximum number of fifteen students per
course.
[22]
On 23 January 2006, a meeting took place between the second
respondent's respresentatives, namely; Adv Boyce Mkhize, Mr Kgati

Malebalana, Mr JH Coetzee, Mr Emmanuel Chanza, and Mr Craig Lambert
and the appellant who was represented by Mr Northmore, Adv
T
Irvine-Smith and Mr PJ Veldhuizen, the appellant's attorney of
record.
[23]
At that meeting the appellant contended that it had the necessary
authority to conduct the number of courses that it offered
and the
courses were of good quality. The second respondent denied that the
appellant had the necessary authority to conduct training
beyond the
four BAA, three AEA courses and one CCA course that it had been
accredited to conduct.
[24]
On 1 February 2006 the Acting Registrar, Adv B. Mkhize, sent a letter
to the appellant requesting it to revert back to its
accreditation
status and that should the appellant wish to carry on further
training, the appellant should apply for further accreditation
on the
prescribed 169 form.
[25]
On 6 February 2006 the appellant's attorneys wrote a letter
reaffirming its position, that it was not training beyond its
accreditation. Nevertheless as a mere formality the appellant
submitted a formal application to the second respondent on 7 February

2006. The appellant pointed out that in doing so, it was not to be
understood as admitting the correctness of the respondents'
version.
[26]
In a meeting held by the second respondent on 14 February 2006 and
which continued to 7 and 26 of March 2006, it was resolved
amongst
other things that the appellant should comply with the original
accreditation and limit the number of students.
[27]
On 6 April 2006 the appellant, through its attorneys, wrote to the
second respondent requesting written reasons for the above
decision.
The appellant also threatened to have any decision taken by the
second respondent which affected it, reviewed and if
necessary, set
aside unless the second respondent gave an undertaking that it would
not interfere with the appellant's training
pending a review
application of the second respondent's decision. Needless to say the
appellant did not carry out its threat.
[28]
In a meeting held on 10 April 2006 the second respondent resolved
that a team of evaluators be appointed to assess the appellant's

capacity to conduct the additional courses.
[29]
In a letter dated 15 May 2006 the respondents' attorneys, Gildenhuys
Lessing Malatji Attorneys, responded to the appellant's
letter of 6
April 2006 stating the following:-
that
the appellant was conducting training beyond its accreditation
scope;
requesting
the appellant to provide the second respondent with the number of
courses it had conducted since the beginning of the
year to date,
being from January 2006 to 15 May 2006;
requesting
the appellant to provide the second respondent with reasons why it
believed it was entitled to conduct training beyond
its
accreditation and in the manner and the extent it did by no later
than 31 May 2006;
informing
the appellant that it had appointed an evaluation team to conduct an
accreditation visit at the appellant's premises
and to provide a
report which would be considered at the second respondent's meeting
together with the accreditation application
it made on 7 of February
2006.
On
21 June 2006 the appellant acknowledged receipt of the respondents'
letter and confirmed that the matter would be dealt with
on an urgent
basis.
[30]
On 31 July 2006 the education committee of the second respondent met
and resolved amongst other things that the appellant was
training
beyond its accreditation; that for practical consideration the
students that had already been enrolled be allowed to complete
the
courses that would commence on 2 August 2006, without prejudice to
the second respondent's rights; that upon completion of
the courses
the appellant revert back to its original accreditation; and that the
appellant should within 7 days furnish the second
respondent with an
undertaking that it would not, in light of this resolution, conduct
training beyond its original accreditation.
[31]
The committee further resolved that an inspection team consisting of
Messrs N Naidoo, M Botha, JF de Beer, Dr Mk Nadioo and
Ms D Muhlbauer
be appointed in terms of section 41A(2) of the Act. The scope of
their investigation amongst other things was to
determine:
The
number of courses being conducted by the appellant;
When
such courses would end;
If
the appellant would be conducting new courses after 2 of August
2006;
And
whether the facilities and organizational structures were sufficient
to allow continued training of the courses that had commenced
as at
2 August 2006.
[32]
The investigation took place on 24 and 25 of August 2006. The
investigation report was handed to the second respondent for

consideration and the appellant was given an opportunity to respond
on 22 of September 2006.
[33]
The investigation report noted that the appellant's organizational
structure and facilities were not sufficient to allow for
the
continuation of the courses that had commenced on 2 August 2006 and
recommended that:
•
The
second respondent not to accredit any additional courses conducted by
the appellant beyond its original accreditation;
•
The
second respondent should determine whether an investigation into the
professional conduct of the appellant should be conducted
as a result
of the issues mentioned in the report;
•
The
integrity of the education being conducted was questionable and there
was sufficient information to warrant the withdrawal of
the
appellant's accreditation.
[34]
The appellant contended that it was accredited to conduct the number
of courses it did because its accreditation did not place
any limit
on the number of courses it could offer. With regard to the CCA
courses it said there was verbal accreditation obtained
from Mr. Dhai
and that the training integrity had been maintained and that an
enquiry of this nature was not warranted.
[35]
On 16 October 2006, the second respondent held a meeting to consider
the investigation report, the appellant's response and
application
for further accreditation. At the meeting it was resolved that the
appellant would be allowed to continue to train
only those courses
that had already commenced as at 2 August 2006, on condition that the
appellant provide the second respondent
with the names of the persons
enrolled for the courses; that the appellant submit an attendance
register and logbooks upon completion
of the practical components of
such courses and that the examinations of such courses be conducted
by the Board upon submission
of the above documentation.
[36]
The Board further resolved to advise the appellant of the following:
their
intention to reconsider the accreditation of the appellant and to
require the appellant to make representations why it should
be
allowed to keep its accreditation;
the
appellant was to deal with the failure to keep logbooks, the
insufficient equipment and the appellant's failure to inform
the
second respondent of change of ownership.
3.
until such time as the issue of accreditation had been resolved all
applications for registration of students who had passed
their
examinations had to be referred to the second respondent and not the
first respondent.
[37]
On 7 November 2006 the executive committee of the second respondent
authorized the chairperson to appoint examiners and in
this regard
Mr. R Naidoo appointed Ms. D Mahlbauer as chief examiner to conduct
the final CCA examination of the appellant and
Mr. J Bowen as
moderator.
[38]
On 15 November 2006 Ms. Mahlbauer obtained the Object Structured
Clinical Examination skills ("OSCEs") sheet from
Dr. TH
Stevens, which were intended to be used for the CCA examinations. Dr.
TH Stevens was employed by the appellant on a full
time basis to
Co-ordinate the CCA course. Ms. Mahlbauer noted that a certain number
of OSCE skills were missing from the OSCE skills
sheet provided by
Dr. TH Stevens.
[39]
This issue was taken up with Dr. Stevens who advised Ms. Mahlbauer
that only four skills from a total of fourteen skills had
been deemed
examinable. The rest had been taught to the students in their
hospital phase. Therefore they were not examinable during
the OSCEs.
[40]
The lack of these skills was brought to the attention of Mr. Bowen
who in turn brought it to the attention of Mr. Christopher
and Ms.
Phooko, the second respondent's then attorney with a recommendation
that the November 2006 CCA examinations be postponed
until the
students had been properly taught these skills.
[41]
On 16 November 2006 this recommendation was presented to the
education committee of the second respondent and the committee

resolved that the examinations scheduled to commence on 17 November
2006 should proceed. The moderator and chief examiner thereafter

provide a comprehensive report and that appellant thereafter be
allowed to comment on the results and its comments would be served
at
a special meeting of the executive committee to enable the committee
to take a holistic view of the situation and if satisfied
ratify the
results.
[42]
The examination took place over 3 days, on 17, 21 and 22 November
2006. Six students, including learner Kruger, sat for the
examination
in which none of the students passed.
[43]
Ms. Mahlbauer indicated in her report that it would be futile to
allow the students to be reassessed without appropriate remedial

education. In his report Mr. Bowen cited a number of logistical,
teaching and administrative problems which had been identified
in his
previous reports and which in his opinion had affected the
performance of the students. He was unable to recommend that
they be
permitted to register with the first respondent. He, however,
recommended that they be permitted to re-write the examination
after
undergoing the appropriate remedial education.
[44]
Mr. Bowen's report went even further and recommended that all further
training conducted by the appellant be suspended until
the appellant
had undergone an inspection for each level of course that it wished
to offer. The appellant was furnished with both
reports and it fully
responded thereto.
[45]
On 8 December 2006 the respondents' attorney, Ms Phooko, addressed a
letter to the Appellant, the admissibility of which was
seriously
contested.
[46]
On 11 December 2006 the second respondent considered the information
at its disposal and made a decision which was communicated
by a
letter dated 13 December 2006, to the appellant by the respondents'
attorneys. The letter detailed the reasons for the withdrawal
of the
appellant's accreditation and advised the appellant that the second
respondent had ratified the examination results of the
CCA
examinations.
[47]
On 12 January 2007 the appellant delivered a notice of appeal in
terms of section 20 of the Act and the matter came before
our learned
Brothers Motala J and Manca, AJ. The court was called upon to make a
ruling on a number of issues and interlocutory
applications.
[48]
One of the issues, which is more pertinent to this appeal, was
whether the appeal was a narrow or wide one. In the judgment
which
they delivered on 12 December 2008 they held that this was a wide
appeal in terms of section 20 of the Act. This meant that
the
appellant was entitled to introduce before this court, further
relevant evidence that might not have been before the second

respondent at the time the decision was taken.
[49]
The respondents applied for and were granted leave to appeal against
this ruling to the Supreme Court of Appeal ("SCA").

However, the SCA struck the appeal from the roll, holding that even
if an order has a final effect it should not be appealed against

where the balance of convenience requires that all the issues of the
dispute be determined in one hearing
(Health
Professions Council of South Africa and Professional Board for
Emergency Care Practitioners v Emergency Medical Supplies
and
Training CC (Trading as EMS) (435/09
[2010] ZASCA 65
(20 May 2010)).
The matter was
accordingly referred back to this court for full consideration of the
merits.
[50]
The appellant has approached this court seeking to appeal against the
decision of the second respondent in terms of section
20 of the Act.
Furthermore the appellant contends that such an appeal may include
grounds of review.
WIDE
APPEAL
[51]
As stated in the preceding paragraphs, this matter was first heard by
our learned Brothers Motala, J and Manca, AJ. They held
that the
appeal instituted by the appellant was a wide appeal. In coming to
that conclusion our learned Brothers drew a distinction
between an
appellant who sought to appeal against a decision in terms of section
20 of the Act, in which the said decision was
taken during a
disciplinary hearing and one taken at a meeting. They noted that the
two situations differed in that, in the former
case, a record of the
proceedings would have been kept and more likely the decision would
have been taken in the presence of an
appellant who would either be
present during the entire proceedings or elected not to be. However,
in the latter case, the decision
of the second respondent was taken
during a meeting of the Board in the absence of the appellant, who
was not required to be present,
or whose presence was never sought.
[52]
There is no reason why in this judgment we should deviate from the
judgment of our learned Brothers in regards to the nature
of this
appeal. In fact this court is bound by the judgment of Motala, J and
Manca, AJ that the appeal brought in terms of section
20 of the Act
is a wide appeal. What this means is that the court is not limited to
the record and the evidence that was placed
before the second
respondent when it made its decision. The court can hear further
evidence on the matter.
[53]
That is not however the end of the matter. As stated in the preceding
paragraphs the appellant has approached this court seeking
to appeal
against the second respondent's decision and to introduce grounds of
review in this appeal.
[54]
The appellant sought to rely on a number of review grounds namely,
the alleged bias and prejudgment of the issue by the second

respondent. Furthermore, the appellant contended that the second
respondent was not the correct entity to take the decision to

withdraw the appellant's accreditation. It also pointed out that
there was a material conflict of interest in regards to the members

of the second respondent who took the impugned decision, as they
would directly benefit from the closure of the appellant.
THE
REVIEW GROUNDS SOUGHT TO BE RELIED UPON:
1.
Incorrect body took the decision to withdraw accreditation
[55]
Mr. Tredoux submitted that the second respondent was the incorrect
body to take the disputed decision and lacked the authority
to
withdraw the accreditation of the appellant. This was the sole
responsibility of the first respondent in terms of the Act, so
ran
his argument.
[56]
In amplification thereof Mr. Tredoux submitted that the second
respondent had caused itself to be registered as a Standards

Governing Board (SGB) and the first respondent as an Educational
Training Qualification Authority (ETQA) in terms of the Regulations,

in particular regulation 9, promulgated in terms of the
South African
Qualifications Authority Act No. 58 of 1995
. In terms of the
regulation only an ETQA and not an SGB had the power to withdraw
accreditation. He pointed out that in terms of
section 15B (2) of the
Act, only decisions which relate to matters falling within the ambit
of the second respondent need not be
ratified by the first
respondent. He argued, because the second respondent is an SGB, the
power to withdraw accreditation does
not fall within its ambit.
[57]
He pointed out that the same section 15B (2) confers powers on the
first respondent to determine which functions fall within
the ambit
of the second respondent. Mr. Tredoux submitted that there was no
evidence to indicate that the first respondent had
determined which
functions fell entirely within the ambit of the second respondent. He
further argued that as a result, the first
respondent had to ratify
decisions that were made by the second respondent that did not fall
within its ambit. He argued that there
was no evidence that the
decision to withdraw the appellant's accreditations had been ratified
by the first respondent. Mr. Tredoux
contended that without such
evidence being placed before the court, the only reasonable inference
that could be drawn was that
the second respondent lacked the
authority to withdraw the appellant's accreditation.
[58]
In reply Mr. Berger argued that section 16(3) of the Act gives power
to the second respondent to grant or refuse any accreditation

application and having granted such application, it may prescribe
such conditions and requirements as it may deem fit. Mr. Berger

submitted that, because of the abovementioned section the second
respondent was indeed the entity empowered to take the said decision.
[59]
Mr Berger contended further that Mr. Tredoux's reliance on 15 (1) and
(2) of
SAQA
was
misplaced. He argued that section 15 (1) and (2)
of
SAQA
provides that a
Board, in this case the second respondent, performing certain
statutory functions which are outside its scope of
alignment with
SAQA, shall continue to do so despite its alignment with SAQA. The
Board shall continue until such time as the functions
have been
amended by law, which shall not be made until the statutory body
concerned and SAQA have examined the implication of
such. This had
not yet materialized at the time the decision to withdraw the
appellant's accreditation had been taken, Mr. Berger
argued. He also
pointed out that the academic structure of the short courses was such
that they could not fall within the National
Qualifications
Framework(NQF).
[60]
It is our considered view that Mr. Tredoux's argument in this regard
cannot stand. The evidence placed before this court is
clear. The
withdrawal of accreditation was done properly by the body authorized
to do so in law. The contrary argument is untenable.
Furthermore,
common sense dictates that a body that has the authority to grant
accreditation also should have the authority to
withdraw it.
2.
Bias and Prejudgment of the issue:
[61]
Mr. Tredoux submitted that members of the second respondent who took
the impugned decision were motivated by an ulterior motive.
He argued
that they wished to close down the appellant so as to open the way
for the Universities of Technology to train students
in emergency
care without competition from private colleges.
[62]
In support of this contention, Mr. Tredoux referred to various
incidents in which members of the second respondent had displayed

bias and prejudice in favour of the second respondent. He stated that
members of the second respondent had during the inspection
of the
appellant's premises on 25 and 26 August 2006, become preoccupied by
the fees that the appellant was charging its students.
Mr. Tredoux
argued that Mr. Craig Lambert, who was attached to one of the
Universities of Technology, had commented that the training
offered
by the Technikons had to be made more viable. This was the true
purpose of the inspection by the second respondent, Mr.
Tredoux
argued.
[63]
Furthermore, the reasons for the closure of the appellant were other
than those stated in the 13 December 2006 correspondence
from the
respondents' attorneys. Mr. Tredoux referred the court to the
admission form of one Ms Debbie Steyn indicating that Ms
Steyn had
registered for the AEA course through Cape Pennisula University of
Technology ("CPUT"), one of the appellant's
competitors.
Mr. Tredoux argued that the closure of the appellant has led to the
financial benefit of the members of the second
respondent or
Universities of Technology. This was the true purpose of the
withdrawal of accreditation, he argued.
[64]
Mr. Tredoux further relied on the evidence of Michelle van der Merwe,
who claimed that she had been informed by Mr. N. Naidoo
that there
was no future with the appellant. This utterance Mr. Tredoux argued,
demonstrated that the second respondent was prejudiced
against the
appellant and was seeking ways to justify its decision.
[65]
The appellant also referred to the evidence of three people who were
either part of the November 2006 examinations or who were
asked by
the appellant to comment on the examination results. The evidence
referred to is that of Dr Cooke, Dr Stevens and Dr de
Vries, whose
evidence shall be dealt with later in this judgment, save to say that
Dr de Vries in his letter stated:
"Secondly.
I have always endeavoured to ensure that any examination process not
be biased against the candidates. ..I cannot
rule out the possibility
of mistrust between the training-facility and the HPCSA or their
representatives, has not interfered with
the examination process."
[66]
Mr. Tredoux argued that this became apparent or could be seen in the
conduct of the second respondent. One such case was that
of learner
Kruger, who according to the version of the appellant passed the
examination by obtaining 51%, but was nevertheless
failed by the
chief examiner, Ms. Mahlbauer.
[67]
According to Mr. Tredoux, the marking itself was suspect. He referred
to the evidence of Dr Cooke who highlighted areas in
which the
students, according to the appellant, were either marked harshly or
incorrectly and were thus deliberately failed.
[68]
In reply Mr. Berger argued that Mr. Tredoux's argument amounted to a
conspiracy theory that was without substance. In short,
Mr. Berger
argued that members of the second respondent were elected in terms of
the process defined in the regulations and in
accordance with due
process.
[69]
He argued further, that the Universities of Technology are public
institutions designed to offer a public function and not
with profit
as their aim. The employees of the said Universities are also public
employees and could derive no benefit from the
number of students
that are enrolled for particular courses. Furthermore, the said
members who took the impugned decision represented
educational
institutions from across South Africa and are not confined to the
Western Cape.
[70]
Mr. Berger further argued that the appellant was not the only private
institution to have its accreditation withdrawn. Netcare's
911
Verrening branch also had its accreditation withdrawn.
[71]
We are in agreement with Mr Berger that the allegations lack
substance. The only evidence that was placed before this court
by Mr
Tredoux was the evidence of Michelle van der Merwe and the enrollment
certificate of Ms. Steyn that shows that she had registered
for the
AEA course through CPUT. That evidence alone cannot sustain the
allegations of bias and prejudice on the part of members
of the
second respondent. The primary reason suggested by Mr. Tredoux for
members of the second respondent to be biased against
the appellant,
was that they stood to benefit from the closure of the appellant. But
that allegation is not supported by the facts,
which is that
Universities of Technology are public institutions and their staff
members are public servants.
[72]
It was further argued by the appellant that evidence of bias also
extended to the respondents' attorneys. In this regard he
referred to
the meeting which the second respondent and its attorneys held on 16
November 2006 and which he submitted was held
in order to find a
reason for the appellant's closure. At that meeting Ms Phooko, the
second respondent's legal representative
at the time, advised the
second respondent that the examination results should be ratified
even before the examination had been
written.
[73]
Mr Tredoux argued that the result and purpose of that meeting soon
became clear in the letter sent to the second respondent
from Ms.
Phooko on 8 December 2006, which was erroneously sent to the
appellant. It was submitted that the letter contained instructions
on
how to legally close down a college, in this case the appellant. More
or less the same reasons had been incorporated in the
correspondence
dated 13 December 2006, sent to the appellant.
[74]
In reply Mr. Berger argued that the Mr. Tredoux misconstrued the 16
November 2006 meeting. Properly construed, Ms Phooko's
advice was
designed to place the second respondent in a position where it could
evaluate the results and then decide if they should
be ratified. Mr.
Berger argued that it was clear from the minutes of the meeting that
the second respondent had resolved that it
would consider all the
results, reports and representations which would enable it to take a
holistic view of the matter, before
the ratification of the results
could be considered.
[75]
Mr. Berger further argued that the 8 December 2006 letter was a
privileged communication between attorney and client. It was

privileged communication which could only be waived at the instance
of its client. It was sent to the appellant by mistake. He
further
argued that the letter was inadmissible as evidence in the absence of
waiver. He pointed out that even if this court were
to find that the
letter was not privileged or that privilege had been waived when it
was sent to the appellant, the communication
contained confidential
advice on matters that the second respondent had to take into
consideration in making its decision.
[76]
In our view the letter of 8 December 2011 is not admissible. This
letter was written when there was a dispute between the parties

regarding the appellant's accreditation. At that stage the appellant
had threatened to take any decision the second respondent
might make
regarding its accreditation on review. The second respondent had been
placed in possession of the reports and it is
clear that at that
stage, that the second respondent had to take a decision on whether
or not the appellant was exceeding its accreditation
limit and for
that purpose it soon became necessary for it to obtain legal advice
from the author of the contested letter. It is
therefore clear that
the advice which is contained in this letter was given by the second
respondent's attorney confidentially
and for that reason that advice
was not meant for third parties.
[77]
That is not the end of the matter. The appellant argued that the
meeting held on 16 November 2006 and the 8 December 2006 letter,

indicated bias against the appellant. At the time that both incidents
occurred, the appellant was already threatening to have any
decisions
taken by the Board that affected its operation reviewed and if
necessary set aside. The court has to infer that the conduct
of the
respondents in this matter was to seek advice on the correct
procedure to be adopted. Moreover, if one examines the evidence

relied upon, that the respondents attorneys were biased against the
appellant and thus the appellant's allegation must fail. Looking
at
the matter holistically, we agree with the respondents that this
contention is similarly without substance.
3.
Material conflict of interest.
[78]
The appellant argued that the membership of the second respondent was
constituted mainly by people who were in the employ of
the
Universities of Technology. The appellant and every other institution
that offers short course training are in direct competition
with the
Universities of Technology, it was argued. It was further pointed out
that the second respondent had decided to do away
with short course
training, which would lead to the closure of institutions that
provide short course training.
[79]
In an attempt to demonstrate that certain members of the second
respondent were conflicted and therefore could not fairly take
part
in the proceedings affecting its rights, the appellant referred to an
occasion when Mr. N. Nadioo
enquired
during the August 2006 inspection as to how much fees the appellant
was charging its students and further to the comments
made by Mr.
Lambert that he was not a capitalist but had to make training at the
Tecknikons more viable.
[80]
The August 2006 inspection itself was tainted, Mr. Tredoux submitted,
because the members who made up the inspection team were
in the
employ of the Universities of Technology, namely Mr. Lambert, Mr N.
Naidoo, Ms Malbauerand Mr Bowen. As a result the appellant
could not
have been adjudged fairly by the second respondent as its members had
a direct interest in the closure of the appellant.
[81]
In his reply Mr. Berger refuted the contention that there was a
material conflict of interest and that the appellant could
not have
been adjudged fairly by the second respondent. In our view, for the
reasons already advanced, the material conflict of
interest based on
the allegation that the members who took the impugned decision were
also employees of the Universities of Technology
and therefore had a
direct interest in the closure of the appellant must similarly fail.
Nothing further need therefore be said
of the grounds of review on
which the attack was based.
APPEAL
AND REVIEW:
[82]
Mr. Tredoux argued that because this is a wide appeal, the court can
take into account traditional grounds of review whether
they are at
common law or statutory law.
[83]
He sought to persuade us by arguing that the dividing line between an
appeal and review may sometimes be blurred. In this regard
he
referred the court to Cora Hoexter
(Administrative
Law of South Africa Juta, Cape Town, 2007 at 106)
who
states:
"The
focus of judicial review in administrative law falls on the decision
itself as opposed to the decision-making process.
In truth it may be
impossible in some cases to separate the merits from the rest of the
matter...this is most easily demonstrated
in relation to action that
is judged to be unreasonable, and for this reason most commentators
today would readily acknowledge
the relationship between review
reasonableness and merits review. Cameron, JA did so with refreshing
frankness in the Rustenburg
Platinum Mine case, where he explained
why the line was difficult to draw:
'This
is partly because process related scrutiny can never blind itself to
the substantive merits of the outcome. Indeed, under
PAJA the merits
to some extent always intrude, since the court must examine the
connection between the decision and the reasons
the decision maker
gives for it, and determine whether the connection is rational. That
task can never be performed without taking
some account of the
substantive merits of the decision.'
[84]
Mr. Tredoux also referred to JR De Ville
(Judicial
Review of Administrative of Action in South Africa (Lexis Nexis
Butterworths, Durban, 2003),
who
makes an observation that the court in
Konyn
and others vs Special Investigating Unit
1999 (1) SA 1001
(TkH)
appeared to
understand its functions to hear appeals as including the power of
review.
[85]
He argued further that a wide appeal grants an appellate body wider
powers that would allow it to review a decision and pronounce
on its
merits. He contended that an appeal body cannot be confined to the
record in cases of a wide appeal as the record itself
may be
distorted by illegality. Furthermore, that if the court were to be
confined to the record then an appeal body may not be
in a position
to effectively deal with the matter.
[86]
Mr Tredoux also argued that even Baxter makes an observation that the
dividing line between appeal and review, in practice,
is notoriously
difficult to draw and only the courts have the power to determine the
legal limits placed upon their discretionary
powers.
1
[87]
Mr. Tredoux contended that in the present matter the court has wide
appellate jurisdiction, entitling it not only to be limited
to the
merits of the case, but also to have sight of and even act on grounds
of review, if the court found that there were procedural
illegalities
that had engulfed the process. The court is thus not limited to
appeal-related grounds. The legal limits, Mr. Tredoux
submitted, can
only be determined by the courts.
[88]
Mr. Tredoux argued further that the nature of this appeal is such
that it cannot be properly adjudicated upon without taking
into
consideration the grounds of review. To do otherwise would lead to
injustice. The jurisdiction conferred on a wide appeal
is wide enough
to encompass grounds of review. He submitted that it is permissible
in the circumstances for the appellant to raise
the question of bias
notwithstanding the fact that this is a wide administrative appeal
and only, in the alternative, a review
application. In this regard he
relied on the decision of the Supreme Court of Appeal in
Minister
of Environmental Affairs and Tourism v Scenematic Fourteen (Pty) Ltd
[2005] ZASCA 11
;
2005 (6) SA 182
(SCA).
[89]
In response Mr. Berger submitted that review and appeal are mutually
exclusive. Thus a party cannot institute an appeal and
then later
request a review and vice versa, even in circumstances where review
grounds were not pleaded. In support of his submission
he sought to
place reliance on the case
of
Tickly & Others vs Johannes N.O & Others
1963 (2) SA 588
(T)
at 593G-594A
in which
the court had this to say:
Mr.
Trengove relied heavily on Shenker's case, supra, for the contention
that the 'appeal' was merely a review. Sec. 34 (2) of the

Administration of Estates Act empowers the Master to appoint 'such
person as he deems fit and proper to be executor dative'; and
sec.
107 provides that, inter alia, every appointment by the Master was
subject to 'appeal to or review by' the Court which could
confirm,
set aside or vary it. In Shenker's case the Appellate Division held
that in relation to an appointment under sec. 34 (2)
'appeal' means
in effect merely a review of the Master's appointment because sec. 34
(2) committed that appointment so entirely
to the Master's discretion
that it could never have been contemplated by the Legislature that
the Court could and should under
sec. 107 re-try the merits of the
appointment and substitute its own appointment for that of the Master
(pp. 146 - 7). That decision,
therefore, turned on the particular
wording of the Administration of Estates Act. In the present case, in
my view, for the reasons
given above, sec. 19 and the regulations
clearly enact that the revision court on appeal must rehear the
matter on the merits and
substitute its own determination for that of
the valuators. Shenker's case is therefore obviously distinguishable.
[90]
This distinction, Mr. Berger argued, is well entrenched in our law.
He referred the court to
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at 513 C-D, paragraph 45
and
Rustenburg Platinum
Mines Ltd (Rustenburg Section) v Commission for Conciliation,
Mediation and Arbitration
2007 (1) SA 576
(SCA) at 589 - 590,
as
authorities for his argument.
[91]
Mr. Berger argued that the court cannot in an appeal, barring
legislation to the contrary, seek to enter into a review related

enquiry. He argued that section 20 of the Act was clear in its
wording and the appellant could have, if it believed that its case

warranted a review, instituted review proceedings in terms of PAJA or
the common law. The appellant elected not to do so and instead

elected to appeal in terms of section 20 of the Act.
[92]
In reply Mr. Tredoux submitted the distinction may sometimes be
blurred. In such an event the court would be entitled to overlook
the
distinction and exercise its power of review.
[93]
Mr. Berger reiterated that even if the court were to be persuaded by
Mr Tredoux's argument, the court could not effectively
deal with the
matter as it was not properly pleaded before this court.
[94]
We agree with Mr. Berger. The appellant has not made out a case that
a court in a wide appeal may also take into account grounds
of
review. The appellant in challenging the impugned decision could have
challenged it by reviewing the decision instead of appealing
it. The
appellant elected to appeal the second respondent's decision and that
being the case it cannot introduce the grounds of
review and argue
the appeal as if it were a review.
[95]
In our view when Motala, J and Manca, AJ held that an appeal under
section 20 is a wide appeal, they could not have meant an
appeal of
the nature contended for by the appellant.
[96]
Although the court in the
Rustenburg
Platinum Mine
case
supra noted that the merits may sometimes intrude in review
proceedings, Cameron, JA found that this does not obliterate the

distinction between appeal and review
(Rustenburg
Platinum Mine case at 590, para [32]):
"[32]
But this does not mean that PAJA obliterates the distinction between
review and appeal. As this Court has observed:
'In
requiring reasonable administrative action, the Constitution does not
. . . intend that such action must, in review proceedings,
be tested
against the reasonableness of the merits of the action in the same
way as an appeal. In other words, it is not required
that the action
must be substantively reasonable, in that sense, in order to
withstand review. Apart from that being too high a
threshold, it
would mean that all administrative action would be liable to
correction on review if objectively assessed as substantively

unreasonable.
Even
JR de Ville makes the point that a power of appeal will include a
power of review where the authorizing statue expressly or
impliedly
makes provision for such.
2
This was not the appellant's case in the instant matter.
[97]
In our view this is a wide appeal in terms of section 20 of the Act.
This is not a review and therefore the court can only
concern itself
with the merits of the matter. The appeal in terms of section 20 of
the Act is a wide appeal but not wide enough
to encompass review
grounds.
THE
APPEAL:
[98]
We now turn to consider the evidence of the second respondent forming
the basis of its decision to withdraw the appellant's
accreditation.
[99]
The issue is whether the second respondent's decision to withdraw the
appellant's accreditation was correct. The appellant,
as the party
challenging the second respondent's decision, bears the onus of
proof.
[100]
On 13 December 2006, the second respondent's attorneys sent a letter
to the appellant informing it of its decision for withdrawing

accreditation and the reasons therefor. The reasons for the second
respondent's decision are the following:
Training
beyond its accreditation;
Insufficient
Equipment;
Failure
to keep logbooks;
Quality
of training
November
2006 CCA Examination
[101]
Mr. Tredoux argued that the November 2006 examinations were the main
reason for the withdrawal of accreditation. Mr. Berger
argued
otherwise. He submitted that the decision to terminate the
appellant's accreditation was based on a number of transgressions
of
the rules.
[102]
We will now analyze each reason advanced by the second respondent for
its decision to withdraw the appellant's accreditation
in order to
consider whether there is sufficient evidential support therefor.
TRAINING
BEYOND ITS ACCREDITATION:
[103]
Mr. Berger submitted that the appellant was training beyond its
originally approved accreditation. For this contention he
sought to
rely on section 16 of the Act which provides as follows:
"(1)
Notwithstanding anything to the contrary in any other law contained
but subject to the provisions of the Nursing Act,
1978 (Act No. 50 of
1978), no person or educational institution, excluding a university
or a technikon, may offer or provide any
training having as its
object to qualify any person for the practising of any profession to
which the provisions of this Act apply
or for the carrying on of any
other activity directed to the mental or physical examining of any
person or to the diagnosis, treatment
or prevention of any mental or
physical defect, illness or deficiency in man, unless such training
has been approved by the professional
board concerned.
(2)
Any person or educational institution wishing to offer such training
as is referred to in
subsection
(1)
shall,
before offering such training, apply to the professional board
concerned in writing for its approval of such training and
shall
furnish such particulars regarding such training as the professional
board concerned may require."
[104]
The appellant's accreditation was raised by the respondents in
various correspondence dating back to 2005. On various occasions
the
respondents informed the appellant that it was training beyond its
accreditation and the appellant would on each occasion deny
that it
was doing so.
[105]
In support of the allegation that the appellant was training beyond
its scope of accreditation, the respondents referred to
form 169
which was submitted to it by the appellant when it applied for
accreditation. The relevant portion is part two of the
questionnaire
which has two columns requesting the following information:
a)
Courses for which
accreditation is required
is
written in the first column and provides four spaces one below the
other for the applicant to fill in;
b)
Number of Courses per
Annum
is written in
the other column and also provides four spaces one underneath the
other.
[106]
The first time the appellant completed the prescribed 169 form was in
1999. The appellant indicated that it intended to conduct
four BAA
courses. On 29 July 1999 the second respondent inspected the
appellant's premises and compiled a pre-accreditation report.
Both
the pre-accreditation report and the accreditation application of the
appellant were considered by the second respondent on
27 October
1999. Thereafter the second respondent informed the appellant by
letter dated 8 November 1998 that it had granted accreditation.
[107]
The letter states:
"APPLICATION
FOR ACCREDITATION OF TRAINING OF BASIC AMBULANCE ASSISTANTS
With
reference to your application in connection with the abovementioned
matter
. It is
a great pleasure to inform you
the
Professional
Board...Resolved
that Emergency medical suppliers be accredited..."
(Court's
underlining).
[108]
On 10 November 1999 the appellant applied again on the prescribed 169
form for accreditation to conduct three AEA courses.
On 12 and 13
July 2000 the second respondent's representatives inspected the
appellant's premises and thereafter compiled a pre-accreditation

report. Thereafter the pre-accreditation report and the appellant's
accreditation application were placed before the second respondent

for its consideration. After considering the matter the second
respondent approved the appellant's application for accreditation
and
conveyed its decision to the appellant by way of letter dated 30
October 2000. The letter states:
"ACCREDITATION
TO PRESENT AMBULANCE EMERGENCY CARE ASSISTANT COURSES/EMERGENCY
MEDICAL SUPPLIERS
With
reference to your application referred to above,
I
am pleased to inform you that your application to present AMBULANCE
EMERGENCY CARE ASSISTANT
b)
Number of Courses per
Annum
is written in
the other column and also provides four spaces one underneath the
other.
[106]
The first time the appellant completed the prescribed 169 form was in
1999. The appellant indicated that it intended to conduct
four BAA
courses. On 29 July 1999 the second respondent inspected the
appellant's premises and compiled a pre-accreditation report.
Both
the pre-accreditation report and the accreditation application of the
appellant were considered by the second respondent on
27 October
1999. Thereafter the second respondent informed the appellant by
letter dated 8 November 1998 that it had granted accreditation.
[107]
The letter states:
"APPLICATION
FOR ACCREDITATION OF TRAINING OF BASIC AMBULANCE ASSISTANTS
With
reference to your application in connection with the abovementioned
matter
. It is
a great pleasure to inform you
the
Professional
Board...Resolved
that Emergency medical suppliers be accredited..."
(Court's
underlining).
[108]
On 10 November 1999 the appellant applied again on the prescribed 169
form for accreditation to conduct three AEA courses.
On 12 and 13
July 2000 the second respondent's representatives inspected the
appellant's premises and thereafter compiled a pre-accreditation

report. Thereafter the pre-accreditation report and the appellant's
accreditation application were placed before the second respondent

for its consideration. After considering the matter the second
respondent approved the appellant's application for accreditation
and
conveyed its decision to the appellant by way of letter dated 30
October 2000. The letter states:
"ACCREDITATION
TO PRESENT AMBULANCE EMERGENCY CARE ASSISTANT COURSES/EMERGENCY
MEDICAL SUPPLIERS
With
reference to your application referred to above,
I
am pleased to inform you that your application to present AMBULANCE
EMERGENCY CARE ASSISTANT
[109]
Between November 2002 and February 2003 the appellant applied on the
169 form for accreditation to conduct one CCA course.
During May 2003
the premises were inspected and a pre-accreditation report was handed
to the second respondent and the appellant
was informed by way of a
letter that its accreditation was granted, subject to its CCA
examinations being moderated by Mr. Dhai.
The examination and
moderation took place between 1 and 5 October 2003. The appellant's
accreditation was confirmed on 17 November
2003 at a meeting of the
second respondent.
[110]
By the end of 2004 the appellant was conducting eleven BAA, five AEA
and two CCA courses which had been communicated in its
annual report
to the second respondent. The respondents contended that the
appellant was deviating from its original accreditation
of four BAA,
three AEA courses and one CCA course. This was what the appellant
originally applied for and was granted.
[111]
In 2005 the second respondent also received an anonymous letter,
which amongst other things alleged that the appellant was
training
beyond its accreditation. This was brought to the attention of the
appellant by the task team that was appointed to investigate
the
matter.
[112]
The issue of the appellant conducting more courses than it was
accredited for became the subject of various correspondence
between
the appellant and the respondents from 2005 to 2006, when the
appellant's accreditation was withdrawn.
[113]
The respondents' argument was and still is that the appellant was
training beyond its accreditation. Even when this was brought
to its
attention the appellant simply ignored this fact and proceeded with
training.
[114]
The respondents' argument is simply this; the appellant applied to
conduct a specified number of courses in each of its three

applications and all inspections, pre-accreditation reports were done
with that in mind.
[115]
In its meeting on 11 December 2006 the second respondent resolved as
follows in regards to the accreditation of the appellant:
"4.1
b)
EMS has failed to comply with the terms of its accreditation, by
amongst others, exceeding the terms of its approval of training
and
hereby compromising the quality of the training offered at the
college, and not complying with the selection criteria by allowing

persons not registered with the HPCSA to enroll for AEA and CCA
courses
h)
EMS was requested by the board to deal with the issues pertaining to
its accreditation, and with its compliance with form 169,
but has not
dealt with form 169, thereby making not providing the board with
sufficient information to enable the board to justify
EMS continued
approval of training;" Page 961-962 and page 789 -790 of the
record
This
was also stated in the December 13, 2006 letter that was transmitted
to the appellant.
[116]
The appellant rejected the respondents' contention regarding the
extent of accreditation. It denied that it was training beyond
its
accreditation. It argued that all accreditation letters were silent
on a number of courses that the appellant could offer.
[117]
The appellant pointed out that:
The
letters granting the accreditation never indicated how many courses
the appellant was accredited to conduct and therefore
by default,
the number was left to the appellant to consider;
The
CCA application required a person to estimate the number of courses
that it wished to conduct and did not require a specified
number as
alleged by the respondents;
Verbal
accreditation in respect of the CCA course was given to the
appellant by the Mr. Dhai, who was a member of the second respondent

at the time that the accreditation was given. Had the respondent
sought clarity from Mr Dhai, he could have provided them with
that
information;
The
appellant completed the prescribed 169 form, but was requested to
complete a totally different form from the one presented
by the
respondents. The said form required of the appellant to approximate
the number of CCA courses it wished to offer and whether
these would
be offered full time or part time.
[118]
It was and could never have been the intention of the respondents and
the legislature that once accreditation had been granted
for a
specific course, that the appellant had carte blanche to offer as
many courses as it wanted. Quite the opposite in fact.
Had the
appellant sought to provide more courses, the proper procedure for
the appellant would have been to apply for further accreditation
so
that the second respondent could in fact do the necessary
investigations.
[119]
The appellant further submitted that in any event, it was allowed to
teach students the CCA course and examine them in October
2003
without any provisional accreditation being given by the respondents.
It was pointed out that 13 and not 12 students, as required
by the
rules of the CCA curriculum, sat for the October 2003 CCA
examination. Mr Dhai who moderated the examination placed this
fact
in his report which report was considered by the second respondent
before granting accreditation.
[120]
The appellant argued that the respondents must have been aware of the
situation prevailing at the appellant's premises, because
each year
the appellant provided the respondent with annual reports indicating
the number of courses that it had provided and would
provide the
following year.
[121]
We do not agree with the appellant's contention. If the appellant had
wished to conduct more courses then the ones that it
had already been
accredited for, it was obliged to apply for accreditation for
additional courses, which would have resulted in
further inspections
and an inspection report that would have been served before the
second respondent when it considered the additional
accreditation
application.
[122]
The appellant also relied on the evidence of Kathy Bodmer who was a
member of the second respondent and who stated that it
was a
requirement of the second respondent that all colleges submit annual
reports. This allowed the second respondent to monitor
the
performance and conduct of each college. In relation to the appellant
she stated:
"I
cannot recall that there were problems with the reports submitted by
the Applicant in this matter, EMS. If it had come to
the attention of
the PBECP that EMS had submitted annual reports reflecting excessive
training...I would have reported this.. .and
the matter would have
been taken further."
[123]
In our view not much reliance can be placed on the evidence of Kathy
Bodmer. She does not say as a fact that while in the
employ of the
second respondent she had checked the appellant's annual reports.
Even if she had checked the appellants annual reports,
she does not
say that she was aware of how many courses the appellant was
accredited to conduct.
[124]
The respondents argued that if the court were to accept the
contention of the appellant this would mean that the appellant
was
accredited to provide an endless amount of courses without recourse.
[125]
In our view the extent of accreditation suggested by the appellant
would render the accreditation process meaningless. The
purpose of
the accreditation process is to ensure that the applicant who applies
for accreditation in respect of a course has the
capacity and the
equipment to offer the course. The appellant cannot thereafter
unilaterally decide to increase the number of courses
it wants to
offer without following the accreditation process. In the
circumstances the appellant's contention must fail.
INSUFFICIENT
EQUIPMENT:
[126]
Part of the second respondent's reason for recommending that the
appellant not be endorsed or accredited for any additional
courses
was the inadequacy of the equipment and the state it was in. Mr.
Bowen in his moderation report of the November 2006 CCA
examinations
noted the poor condition of the manikins and other equipment. He
referred to prior moderation reports that were compiled
in December
2005, February and June 2006 in which this issue was raised. He
further noted that the appellant had done little if
nothing at all to
improve the condition of the manikins and equipment.
[127]
In Mr. Bowen's moderator's report for the December 2005 CCA
examination he noted that certain items of training equipment
"were
quite worn and dirty"
and
that attention be drawn to appellant for future examinations
[128]
In the February 2006 moderator's report that was compiled by both Mr.
N. Naidoo and Mr. Bowen, they dealt with the issue of
the appellant's
equipment extensively namely; the dirty and insufficient equipment,
problems experienced with the rhythm and patient
simulators, the
naked manikins, broken equipment and consumable/disposable items
being reused.
[129]
In his June 2006 moderation report, Mr. Bowen noted that
"there
has been some improvements in the equipment",
but
he nevertheless observed that
"some
of the manikins are still damaged and missing limbs."
[130]
The second respondent, in its withdrawal of the appellant's
accreditation stated the following in regards to the equipment
of the
appellant:
"4.1
a)
EMS does not have sufficient equipment to continue with its training
activities, as required by the professional board;
(f)
The unavailability/unsuitability of some of the equipment at EMS for
the purposes of the CCA examination was brought to EMS'
attention, in
the inspection report, the examiner and moderator's report but the
representations from EMS, do not adequately address
these
deficiencies;"
[131]
In reply the appellant sought to dismiss this allegation on a number
of bases:
The
appellant first argued that there were no problems with the
equipment and the second respondent was seeking ways to justify
its
decision;
This
was the same equipment that was approved by the second respondent
when accreditation for the various courses was granted
and in fact
the appellant had added more equipment to the equipment they already
had in stock;
The
ALS manikins were manufactured naked/without clothing and with one
arm and further, they were not a requirement in terms of
the
prescribed 169 form. If the issue was about the dirty manikins that
certainly would not warrant withdrawal of accreditation,
Mr. Tredoux
argued.
[132]
In her November 2006 report to the second respondent, Ms. Muhlbauer
noted that on 20 November 2006 and in consultation with
Dr. Stevens,
a certain OSCE skill (not mentioned) was replaced due to lack of
training aid. Certain manikins that were presented
for the assessment
on 21 November 2006
"were
in a terrible state. They were either damaged or very dirty. Due to
the airway manikin being broken I had to change another
one of the
OSCE skills..."
[133]
It is clear from the evidence that the issue regarding the condition
of the appellant's equipment was an ongoing tussle between
the
appellant and the second respondent. According to the appellant, when
accreditation was granted in respect of all courses,
the equipment
was deemed to have been of sufficient quality and quantity and in
fact since then they had added more equipment.
[134]
The court is not persuaded by the appellant's argument regarding its
failure to keep and maintain sufficient equipment. The
poor condition
of the appellant's equipment had been raised in various moderators'
reports since December 2005. The appellant's
failure to ensure that
it has sufficient or fully functioning equipment compromised its
ability to offer proper training in regards
to the courses for which
such equipment was required.
FAILURE
TO KEEP LOGBOOKS:
[135]
In relation to the appellant's failure to keep logbooks the second
respondent had this to say in the letter addressed to the
appellant
on 13 December 2006:
"1.4
The CCA curriculum (sic) requires a college to keep a logbook of the
practical components of the course. EMS has conceded
that it has not
complied with this requirement. The college is required to check such
logbook to ensure that a student has completed
all the compulsory
skills before the examination;"
[136]
In this regard it was alleged by the second respondent's that the CCA
curriculum stipulates as part of its minimum requirements,
that each
student must have
"a
minimum of 1000
(one thousand) hours of rostered duty work with an accredited
ambulance service in terms of the scope of the profession
for
emergency care. This has to be documented in a logbook of the
trainee."
3
[137]
The second respondent pointed out that the CCA curriculum stipulates
as follows:
"Note
This work book must be completed by critical care assistant students
during their practical period...
Only
medical officers, instructors and registered nurses may sign the
procedures after the candidate has succesfully completed the

procedure.
To
gain entry to the final exams the area in the work book contents
marked with a star(*) must be completed fully."
[138]
Mr. Bowen, according to his November 2006 examination report, noted
that one student was allowed to gain entry to the examination
without
all the compulsory skills being completed and another student made
his logbook available after the last examination.
[139]
In reply the appellant argued that it was informed by the second
respondent in a letter dated 22 August 2001 that the principal
of
each college could decide on a method to use to comply with the
curriculum requirements relating to the keeping of logbooks
and in
the present case the principal of the appellant did not require its
students to keep logbooks. The appellant avers that
it required its
students to depose to an affidavit, confirming that they had met the
minimum requirements as set out in the curriculum
and this method,
the appellant argued, was of far greater value than logbooks.
[140]
It pointed out that it did require its students to complete
compulsory skills and note them in their workbooks which would
be
tendered for inspection prior to the students gaining entry into the
November 2006 examination. However, two students that failed
to meet
these requirements were allowed to sit for the November 2006
examination.
[141]
We reject the appellant's contention. The CCA curriculum required the
keeping of logbooks as a minimum requirement. The logbooks
would have
required the input of the person under whom the student would have
performed the rostered duty. Although the letter
states that the
principal has a discretion on the issue of logbooks the respondents
quite correctly argued that merely requiring
students to depose to an
affidavit stating that they had completed the minimum required hours,
was insufficient and there was no
way of verifying this as fact.
[142]
What the appellant also fails to take into account is the provision
of section 16 of the Act which provides that the second
respondent
shall have control over training and in this case that control was
exercised in the form of the CCA curriculum that
was provided to the
appellants.
QUALITY
OF TRAINING:
[143]
In its correspondence to the appellant the second respondent stated:
"1.3
EMS failed to fully cover the curricula that is set out by the board
for the training of CCA students, thereby compromising
the standards
and quality of training offered and the poor performance of the
learners during assessment;
1.5
The practice by EMS of teaching students on only selected aspects of
the syllabus on which students would be examined was unacceptable;"
[144]
The respondents alleged that the quality of training offered by the
appellant lacked the standard that was expected by the
second
respondent. In support of this allegation the respondents relied on a
number of reports including that of Mr. Bowen. Mr.
Bowen in his
November 2006 moderation report noted that the students that sat for
the November 2006 examinations lacked a deep
understanding of the
theoretical knowledge and described their grasp of the theoretical
issues as superficial. He made two recommendations
in his report;
firstly that he could not recommend that any of the students be
permitted to register with the first respondent
and secondly they be
given a second chance to write the examination again after undergoing
remedial training. He also recommended
that the training at the
college be suspended until the second respondent had undertaken an
inspection of each level of the courses
the appellant wished to
offer.
[145]
Mr. Bowen in his June 2006 report also noted problems with teaching
and had this to say in this regard:
"...
This certainly leads to questioning either the teaching or the amount
of time allocated to the practice of the simulations...common

problems amongst the group indicated that there may be teaching
problems or inadequate preparations for examination..."
[146]
What is noteworthy about the June 2006 moderation report is that
seven students wrote the June examinations and none passed.
However,
six of the seven students passed the examination on their second
attempt.
[147]
The respondents argued that the poor performance of the students was
the byproduct of the failure of the appellant to fully
cover the
entire syllabus. The effect thereof was that the students acquired
superficial knowledge of the unexamined procedures.
[148]
In reply the appellant pointed out that the skills in question which
were not contained in the OSCE sheets set for the examinations
but
taught in the hospital phase could only be done in that manner, on
real patients and under direct supervision because of the
procedures
in question, they could not be realistically done on the manikins.
Furthermore it argued that that its failure to conduct
the entire
syllabus was only brought to its attention when the withdrawal of
accreditation was communicated to it in a letter dated
13 December
2006.
[149]
It was also submitted by the appellant that it had out of its own
initiative applied the SAQA principles and standards of
education. It
insisted that all its lecturers obtain instructor qualification,
which was not a requirement of the second respondent.
The appellant
went so far as to implement and establish the SAQA compliant
educational system and required that its students achieve
a 90%
attendance amongst others. It pointed out that there could be no
merit to the respondents' arguments as the appellant had
taken
additional steps to maintain the standard of the appellant. The
appellant further sought to rely on the qualifications and
experience
of Dr. Stevens.
[150]
We agree with the respondents. While we cannot criticise the
appellant for the steps it had seemingly taken to ensure the
quality
of education it offered, we must take into account the November 2006
examination results. If some skills could only be
taught in the
hospital phases, as the appellant alleges, then the students should
not have had a problem in passing the skills
when they were being
examined. But they did and this problem goes back to the previous
issue of requiring logbooks/workbooks to
be kept for verification.
The fact of the matter is this; six students sat for the November
2006 CCA examinations and all six failed.
In the June 2006 CCA
examinations all the students that sat for that examination failed on
their first attempt and only six passed
on their second attempt.
[151]
Furthermore, the appellant's failure to comply with the procedures
meant that it had no way of ensuring that the students
had indeed
completed the minimum hours as required and therefore obtained the
knowledge that they required. What is of significance
is that Dr
Cooke in his report also expresses his reservation in the ability of
the students and attributes this to poor knowledge
of the subject
matter.
5.5
NOVEMBER 2006 CCA EXAMINATION:
[152]
We now turn to deal with the fifth and final reason given by the
second respondent for the withdrawal of the appellant's
accreditation, namely the November 2006 CCA examination. At its
meeting on 11 December 2006 the second respondent considered the

examination results, the reports by the chief examiner and the
moderator and the responses from the appellant before ratifying
the
November 2006 examinations.
[153]
The second respondent stated:
1.7
"The performance by the students on the theory paper, OSCE's and
oral evaluations clearly shows that the students lack
the required
training (both theory and practical) to be successful as Critical
Care Assistants.
2.
having considered the examination paper, the answer sheets, the
reports by the examiner and the moderator, and the response from
EMS
on these report, the committee further resolved that examination
results as appears on the examination results as appears on
the
examiners for the following reasons:-
2.1.
From the assessment conducted, the students were not competent to
qualify as Critical Care Assistants;
2.2.
The examination was fair and based on the curricula and there was no
basis to allege that it did not cover the full curricula;
2.3.
EMS failed to cover the complete curricula for CCA, thereby making it
difficult for students to be successful in their assessment,
which
was based on the said curricula;
2.4.
That EMS had failed to ensure that there was proper teaching and
learning thereby leading to poor performance of learners during

assessment.
[154]
Six students sat for the November 2006 examinations: T Kruger, J
Harris, N Stallkamp, T Wadelely, J Krynauw and F van der
Westhuizen
and none of the students passed the examinations.
[155]
Ms. Mahlbauer in her November 2006 report reported that none of the
students passed the long question paper, where the highest
mark was
41% and the lowest mark 22%. Again in the OSCE assessments none of
the students passed the examinations, the pass mark
being 75%.
[156]
However, four students passed the short question paper, four failed
the oral evaluations and only two students were found
to be competent
in the simulations. She summarized the students' performance as
follows:
"As
chief examiner I feel that it would be futile to allow any of these
students candidates a reassessment without proper remediation.

Numerous content issues were identified in both the theoretical and
practical assessments..."
[157]
Mr. Bowen in his moderation report repeated much of what Ms Mahlbauer
stated in her report. He stated that:
"The
students appear to lack a deep understanding of the theoretical
knowledge. There is a superficial grasp, but insufficient
to deeply
explore a subject. This is evident by the inability of the students
to put down sufficient points for a question..."
"There
is an obvious lack in the teaching on this program as the students
cannot demonstrate a detailed understanding of certain
procedures,
e.g pacing"
[158]
Mr. Bowen notes numerous concerns with the performance of the
students and the teaching offered by the appellant. He recommended

that the students be given a second attempt at the examinations
following remedial teaching.
[159]
In respect of the of two learners Mr. Kruger and Mr. Stallkamp, who
both passed the short question paper, oral examination
and the
simulation, Mr. Bowen noted:
"Despite
Kruger and Stallkamp meeting the requirements to sit only for the
OSCE examinations again, I believe that they (and
their patients)
would benefit from undergoing remedial teaching and reassessment.
Thus I think that all students undergo a complete
full set of
examination again"
[160]
The appellant on the other hand states that the November 2006 CCA
examination was the primary reason for the withdrawal of
its
accreditation. The appellant contends that the examination was set in
a manner that ensured that the six students failed their
examination.
For this contention the appellant relies on the evidence of Dr.
Stevens, Dr. Cooke and Dr. De Vries.
[161]
The appellant avers that the examination was not fair and that it was
not done in consultation with Dr. Stevens. It says the
examination
that was set contained trick questions and at least one of the
questions was of such nature that most medical practitioners
would
not have been able to answer it. It further says even the chief
examiner could not provide medically correct answers.
[162]
The suggestion that the examination was not done in consultation with
Dr. Stevens is not correct. It is clear from the record
that there
was correspondence between the chief examiner and Dr. Stevens, in
which the chief examiner requested OSCE skills sheet
from Dr. Steven
in preparation for the November examination. When the chief examiner
discovered that some of the skills were missing
in the sheet provided
by Dr. Stevens he asked the latter about them. Dr. Stevens explained
that certain of the skills were taught
at the Hospital Phase and
therefore deemed not examinable.
[163]
According to the appellant, Dr. de Vries who was the medical officer
in the November 2006 examination, walked out of the examination
in
protest of the manner in which the examination was being conducted.
After he walked out, he wrote a letter to the appellant
expressing
his disgust at the manner in which the examination had been conducted
by the second respondent's appointed representatives.
[164]
Dr. de Vries says in his letter:
"Secondly.
I have always endeavoured to ensure that any examination process not
be biased against the candidates...! cannot
rule out the possibility
of mistrust between the training-facility and the HPCSA or their
representatives, has not interfered with
the examination process."
[165]
Dr. de Vries goes on to state that he saw his presence there as
merely a legislative requirement as many of his observations
and
suggestions were not taken into account.
[166]
This court will not attach any probative value to Dr. de Vries's
letter. It does not in anyway take the appellant's case any
further.
It raises more questions than answers.
[167]
There are a number of observations that the court made in regards to
Dr. de Vries's evidence, the first being his opening
sentence in
which he states:
"As
per request
a
few
comments with regards to the examination process"
This
is very strange for someone who alleges that he walked out in
disgust. The opening sentence suggests that he waited until he
was
asked before he wrote the letter. He thereafter did not direct this
letter to the respondents but instead sent it to the appellant.
What
is even more strange is that this court does not know at what stage
he walked out in disgust. The examination took place over
four days
and there is no evidence indicating when exactly during the course of
the examination he walked out. Whether he thereafter
did not return
to the examination, the court is left in the dark. The court also
takes into account that Dr de Vries also signed
the attendance
register to acknowledge that he was present at the examinations and
as this court has previous stated, he does not
mention when in fact
he walked out.
[168]
It gets stranger still in that in his last paragraph Dr de Vries
states:
"However,
let me add that I do not disagree with any of the decisions that were
made concerning the evaluation of the students'
performance. To this
end the chief examiners exhibited an almost stoic consistency and
should be commended for this. My comments
are directed at the
procedural practices and inaccuracies."
Counsel
for the appellant seems to suggest that Dr de Vries was being
sarcastic in his remarks.
[169]
We reject the appellant's contention. In our view no reliance should
be placed on the evidence of Dr. de Vries. His evidence
raises more
questions then answers. A person who was aggrieved by the conduct of
the representatives of the second respondent and
wrote the letter to
show his disgust, such a person could not have kept the letter to
himself and only decide to send it to the
appellant upon being
requested to do so.
[170]
The appellant further places reliance on the evidence of Dr. Cooke
and the report that he complied on their behalf. In the
report Dr
Cooke makes the following remarks:
"3)
In light of 2) above one must attempt an objective opinion ...
Opinion
1.1.
The questions are all medically correct. There are minor issues as
set out herebelow which would NOT make a major difference
to this
matter...
1.2.
The questions are easily understood and very clear in their content
of case scenario, exact requirements of answers and subsections.
1.3.
The long questions are not misleading. There is some minor
possibility of ambiguity or "trick" questions in the
multiple choice
2.1.
there are minor areas where the mark allocation may not be fair and
appropriate
2.2.
the mark allocation in the long questions will always carry some
minor degree of subjectivity...! cannot comment on the oral
and
practical examinations...
The
sample of answers supplied indicates that the candidates did not read
the questions correctly/ did not answer the questions,
in some cases
obfuscated around the subject (which is extremely annoying to
examiners!)/did not understand the questions, clearly
in some
instances because of poor knowledge
Dr
Cooke concludes by stating:
"...there
is not a substantive issue that theses would have seriously
influenced the outcome of this examination as required
by the Council
set standards. Unfortunately the candidates were far below an
acceptable standard for this examination."
[171]
The court fails to the see the relevance of Dr Cooke's evidence
except that it does nothing to help the appellant's case and
in fact
paints the respondents in a good light
[172]
Dr. Cooke does not say in his report that Mr. Kruger and Stallkamp
should have passed their OSCEs. He says the candidates
were far below
an acceptable standard for this examination. The court cannot on its
own find that the students passed their examination.
[173]
In our view Dr Robertson's evidence does not take the matter any
further. In short the evidence is that there is a severe
shortage of
medical practitioners in the Western Cape and the closure of the
appellant has not helped the situation. He further
states that any
short comings could have been addressed through various structures,
such as moderation, consultation, advice and
mentoring.
[174]
What is significant in his evidence is that he says:
"I
am not familiar with the detailed reasons for the closure of the
appellant",
but
proceeds to express his views. The bases upon which Dr Robertson's
statements are predicated are not clear. In the circumstances
Dr
Robertson's evidence should be rejected.
5.5.1
Mr. Kruger:
[175]
Mr. Kruger only failed the OSCE's and it was recommended that he be
granted an opportunity to re-write the examination after
undergoing
remedial training.
[176]
The appellant contends that learner Kruger should have passed the
examinations. According to the appellant learner Kruger
passed 6 of
the 10 stations when in fact there should have been eight, which is
the prescribed number.
[177]
Without taking the appellant's argument any further, the curricula
states: "Pass the OSCE with the following criteria:
i.
OSCE'S have a minimum of eight
critical stations of which the
candidate must pass six.
ii.
With a minimum mark of 75%
[178]
In our view it is clear that the curriculum requires a minimum of 8
stations and does not as the appellant suggests, prescribe
8
stations. There were 10 stations in the present matter and as counsel
for the respondents pointed out, the candidates were required
to
obtain a minimum of 75% to pass the examination. In other words they
had to pass 8 of the 10 stations.
[179]
To sum up, in our view the evidence that the appellant has sought to
introduce is no different to the evidence that was before
the second
respondent at the time of the hearing and that being the case the
appellant's appeal should fail.
[180]
The order:
1.
The appeal is dismissed with costs;
2.
Such costs to include the costs of two counsel.
HLOPHE
, JP
ZONDI, J
1
BAXTER,
ADMINISTRATOR OF LAW (JUTA & CO, CAPE TOWN,
1984) AT P 306
2
Judicial
Review of Administrative of Action in South Africa (Lexis Nexis
Butterworths, Durban, 2003, page 387 - 388, fn 789-790
3
CURRICULUM
FOR THE CRITICAL CARE ASSISTANT COURSE, DOC 5 (PART 1) MAY 1999, at
5 para 3 b)