Health and Other Service Personnel Trade Union of South Africa v South African Nursing Council and Another; Democratic Nursing Organisation of South Africa and Another v South African Nursing Council and Others; Chris Hani Baragwanath Nursing Students and Others v South African Nursing Council and Another (43415-2017; 43435-2017; 43526-2017) [2017] ZAGPPHC 298 (30 June 2017)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case Number: 43415/2017

43435/2017

43526/2017

Not reportable Not of interest to other judges

Revised.

30/6/2017

In the matter between:

43415 / 2017

THE HEALTH AND OTHER SERVICE PERSONNEL

TRADE UNION OF SOUTH AFRICA APPLICANT

And

THE SOUTH AFRICAN NURSING COUNCIL 1st RESPONDENT

S.A. MCHUNU N.O. 2nd RESPONDENT

43435/ 2017

THE DEMOCRATIC NURSING ORGANISATION OF

SOUTH AFRICA 1st APPLICANT

THE AFFECTED MEMBERS OF THE DEMOCRATIC

NURSING ORGANISATION OF SOUTH AFRICA 2nd APPLICANT

S. A. MCHUNU N.O. 2nd RESPONDENT

TRADE UNION OF SOUTH AFRICA 3rd RESPONDENT

43 526 / 2017

CHRIS HANI BARAGWANATH NURSING STUDENTS 1st APPLICANT

SELBY NURSING COLLEGE STUDENTS 2nd APPLICANT

ANNLASTY NURSING COLLEGE STUDENTS 3rd APPLICANT

EMPILWENI NURSING COLLEGE STUDENTS 4th APPLICANT

NETCARE NURSING COLLEGE STUDENTS 5th APPLICANT

SOUTH AFRICAN NURSING COUNCIL 1st RESPONDENT

MS S. A. MCHUNU 2nd RESPONDENT

JUDGMENT AND REASONS

Fabricius J,

1.

THE HEALTH AND OTHER SERVICE PERSONNEL TRADE UNION OF SOUTH AFRICA

vs

THE SOUTH AFRICAN NURSING COUNCIL + 1 43415/17

In this urgent application, the Applicants sought an interdict prohibiting the Respondents from giving effect to, or implementing a Circular of 12 June 2017, which interdict would operate pending the final outcome of a review application.

2.

The Notice of Motion is dated 23 June 2017. Notification of opposition was required to be filed on 24 June, and an Answering Affidavit was to be filed by 12h00 on 25 June. The application was set down on Monday for Monday 2 6 June at 12h00. Urgent applications in the Gauteng Division, Pretoria must be enrolled by the Thursday preceding a particular Tuesday. The Roll call of urgent applications then takes place on Tuesdays. The Respondents in this case therefore had one day in which to file an Answering Affidavit, and on 27 June the parties presented me with a Draft Order by agreement which I made an order of Court. It is to the effect that the examination scheduled for assessment on 28 and 30 June, have been postponed to 19 and 21 July 2017. An amended Circular would be issued to all nursing education institutes accordingly, and the review application was withdrawn.

3.

It is stated in the Founding Affidavit that of its general membership the Applicant had 3 214 persons as student nurses of which 1060 were in the public sector and 2154 in the private sector. There were also about 30 000 professional nurses registered as members.

4.

The particular Circular of 12 June 2017, is to the effect that "some learners had access to the examination question papers prior to the date on which they were due to write the examinations on 5, 8, 24 and 2 6 May 2017". The examinations were in respect of "first year examinations for the bridging course for enrolled nurses, leading to registration as a general nurse/ psychiatric nurse" as well as "second year examinations for the bridging course for enrolled nurses leading to registration as general nurse/ psychiatric nurse". It was said that under these circumstances the Council had no option but to take the decision to cancel the examinations. New dates were then stipulated and these form the subject matter of the Draft Order that I made an order of Court. It was stated that the Nursing Council was in the process of investigating the circumstances that led to a breach of security in respect of the examinations. The Circular was signed by the Second Respondent, the acting Registrar and Chief Executive Officer of the South African Nursing Council.

5.

Applicant objected to this Circular being issued on 20 June 2017, and took issue with the fact that no further or more detailed information had been supplied. Objection was also raised as to the proposed examination date of 12 June 2017. It was suggested that "the better course of action would surely be to accept the result of the examinations already written and then discipline those who cheated, rather than tar every single learner with the same brush?" Further information was then sought namely as to the extent of the breach, the geographical areas in which this breach had occurred, why all learners across the country would have to re-write and what the status of those learners would be who may not be timeously advised of the re-write. The last question has now fallen away.

6.

A reply by the Second Respondent was sent on 22 June 2017, relying amongst others on various provisions of the Nursing Act 33 of 2005, and the Council's obligations in respect thereof. It was said that before the issuing of the relevant Circular, allegations of leakage were investigated and it was established that the leakage had in fact occurred. It therefore became necessary for the Council, in

order to protect the integrity of the examinations concerned and the standard of nursing education in general, to cancel and re-schedule

the said examinations. These investigations were continuing. The following also appears in the reply: "As it was established that certain learners were in possession of the question papers prior to the date on which the examinations were written, the integrity of all four the examination papers have been compromised. A leak of this nature unfortunately does not only affect individual students, but demolishes the credibility of the examination".

It was expected that the relevant investigations could take up to six months and should examinations only be scheduled after that period, all students would be prejudiced. Should the examinations then only be rescheduled afterwards, first year students would not be able to commence with their second year, until they are confirmed as having passed the first year, and second year students would not be able to complete their studies and start their careers until they had passed all the relevant examinatins. This would have a huge impact on all affected students.

7.

In the Answering Affidavit, Respondent, apart from contesting the urgency of the application, also took the point that there was a non-joinder of five other interested trade unions. One of these was the National Health Education and Allied Workers Union ("NEHAWU"),

and after discussions no further communication was received from this Union.

8.

The Answering Affidavit then refers to certain sections of the Nursing Act, as I have said, and states that quality education and training of nurses are in the public interest. It was therefore necessary for the Council to do everything in its power to ensure that acceptable standards were maintained, not only in the education and training of student nurses, but also in the assessment of students' knowledge. There is no· doubt that the Nursing Act requires proper qualifications and competency to practice nursing, in the interests of the public.

9.

It was said that a total of 10 56 7 candidates throughout South Africa wrote the four examinations in May. It was stated that the assessment section of the Council's Education and Training department received the reports from invigilators at various examination centres of incidences of examination irregularities which occurred during all four of the examinations. These occurred in Kwa-Zulu Natal, Mpumalanga, Western Cape and Gauteng. An investigation commenced and it was established that the irregularities were widespread and that certain learners were in possession of the question papers and/ or memoranda of the question papers prior to the date on which the examinations were written. It was impossible to determine at this stage of the investigation how many students had access to these papers and/ or memoranda prior to the examination. It was therefore impossible to determine whether there were any examinations centres where students did not have access to the papers/memoranda. It was said that in due course the matter would be referred to the South African Police Services for investigation and that at this stage such an investigation was at a sensitive stage and not all facts could now be disclosed without compromising the investigation.

10.

In the Founding Affidavit the Applicant relied on various parts of Section 6 of PAJA, but did not provide any factual basis in respect of each of such subsections. In answer thereto, it was said that the issue of the Circular was the best practical and also the fairest solution to the students. The circumstances of the situation demanded a departure from the requirements of section 3 ( 2) of PAJA, and most definitely did not allow for the audi alteram partem rule to be applied. An interdict would cause, rather than .prevent, irreparable harm to students, and the best option would be for all students ·to re-write the examination and continue with their education and traln!ng in order to complete it in the normal time period.

11.

Attached to the Answering Affidavit, were regulations relating to examinations of the South African Nursing Council. It is clear that a candidate shall be disqualified from writing an examination if he or she has any books or memoranda of any kind, not authorized by the invigilator in his or her possession and also where he or she obtains, or attempts to obtain help with the examination from another candidate. There are other relevant provisions all aimed at preserving the integrity of examinations.

12.

A policy document was also annexed which provides a framework within which assessment and moderation practice must be carried out. It is clear that academic honesty was required. In reply it was said that the interests of thousands of student nurses were ·at stake. Applicant did not seek far-reaching relief: it only sought to put a holding position in place. As far as the question of the lack of a hearing was concerned, it was said that no exceptional circumstances existed in this case, and the Second Respondent was not entitled to depart from the fundamental principle of audi alteram partem.

13.

The Applicant in this case which represented thousands of nursing students were obviously satisfied with the new dates of examinations

in July of this year, and hence the Draft Order that was presented to me by agreement. I have nevertheless mentioned a number of relevant facts inasmuch as they are also relevant to the next application which I beard on 27 June 2017. That was in the matter of Democratic Nursing O.rganisation of South Africa and Others v The South African Nursing Council and others, case number 4343 5/ 2017.

THE DEMOCRATIC NURSING ORGANISATION OF SOUTH AFRICA + 1

THE SOUTH AFRICAN NURSING COUNCIL + 2 43435/2017

14.

In that case, the Notice of Motion is dated 25 June 2017 and Notice of Opposition was required by not later than 11h00 on 2 6 June, and the Answering Affidavit having to be filed five and half hours later, also on 2 6 June. Obviously, much of the information contained in the Answering Affidavit of the Nursing Council also appears in this particular Answering Affidavit.

15.

In the Notice of Motion, a declaratory order was sought in terms of which the mentioned Circular would be declared unlawful. In the other prayer (prayer 3) an order was sought reviewing and setting aside the particular Circular. As an alternative to these orders, an interdict was sought, but this relief was abandoned by the Applicant's Counsel during the hearing. Applicant's Counsel in this application argued that in terms of section 3 3 of the Constitution of the Republic of South Africa, which was given effect to by the Promotion of Administrative Justice Act, 3 of 2000 (" PAJA"), the Second Respondent had failed to comply with the doctrine of audi alteram partem prior to making the decision. It was said in the Founding Affidavit that PAJA was being relied upon and that an infringement of this sort was legally impermissible, except in very exceptional circumstances. Such did not exist herein, so it was contended. In this context I was referred to Minister of Education and Training and Others v Ndlovu 1993 (1) SA 89 (A). In that case three pupils in a class had cheated in a matriculation Biology examination. The Director-General of the Department, without affording pupils a hearing, refused to recognise the results of all the pupils in the class and required them to re-write the examination. The Appeal Court held that it was difficult to conceive that the integrity of the whole examination of pupils would be imperilled if three pupils cheated. The Appellants in that case argued that the affected pupils had a right to be heard and this contention was upheld. The result would be that each individual would thus be afforded the opportunity showing that he did not take part in any irregularity. The importance of the audi alteram partem principle was again upheld, and of course, I also appreciate its particular importance. It must however not be lost sight of that

Botha JA also said at 106, that on the facts of that case the Director-General was obliged to give effect to the audi principle. However, it was added that it might be that in other circumstances so large a number of candidates can be involved, where the contents of a paper are disseminated on a wide scale, that the application of the audi principle must needs to be attenuated. This is such a case, in my view.

16.

This decision was obviously given prior to the coming into operation of PAJA, which similarly provides for the importance of the audi principle. It is clear from the affidavits that thousands of student nurses are involved in at least four provinces (it is not yet

certain whether the irregularities concerned in any of the other provinces) and, the Founding Affidavit does not say how the audi principle ought to have been applied in this particular case. Would all nurses have to be asked for their input, would the trade

union be asked for an input after having consulted with all of its affected members, or how would the process have evolved, taken into account the fact that the particular dishonest conduct was widespread, and taking into account the Respondents ' statutory

obligations to ensure the integrity of the examination process.

17.

I was told by Respondent's Counsel that for practical purposes no internal appeal procedure existed, although provision is made

therefore in terms of the provisions of section 57 of the Nursing Act. No regulations in this context had as yet been promulgated and no reason for the failure by the relevant Minister to make such promulgations was provided.

18.

Counsel for Applicant submitted that my order in the previous matter postponing the dates of the examinations to July had no effect on his argument. When the provisions of section 3 ( 2A) and 3 (4a) of PAJA were put to him, he surprisingly argued that he did not rely on any provisions of PAJA (although this is contrary to the assertions made in the Founding Affidavit), but that the common law applied. I put it to him that this argument had been rejected by the Constitutional Court in Pharmaceutical Manufacturers Association of South Africa and Another: In re: Ex parte President of the Republic of South Africa [2000] ZACC 1; 2000 (2) SA 674 (CC), and also Minister of Health v New Clicks South Africa (Pty) ltd 2006 (2) SA 311 (CC).

19.

Applicant's Counsel also submitted that inasmuch as the irregularities had according to the Respondents' version only been discovered in four provinces (as yet), I should as an alternative order that the particular Circular only apply to the mentioned four provinces. At first glance, this argument seemed to have merit, but it is clear from the Answering Affidavit as a whole, that the Respondents are busy with ongoing investigations, that they are not in possession of all the particular facts yet, and that the dishonest conduct was widespread. It was therefore not inconceivable or unreasonable to expect that further irregularities would be discovered in other provinces. According to the provisions relating to procedural fairness, the particular requirements would depend on the facts of each case and such requirements may be departed from keeping in mind the duties of the Council in terms of the Nursing Act, its duties in regard to the integrity of the examination, and the particular urgency of the matter, all of which factors also ought to be regarded against the background of the public interest, namely that only those nurses pass examinations if they are properly

qualified to do so. In exercising my discretion, which I undoubtedly have, I am of the view that the minimum requirements relating to procedural fairness should not be enforced on the present facts. It is in my view abundantly clear that it was physically impossible to ask for representations from each of the thousands affected students, and even if representations had been sought from the Applicant Union, such Union would obviously have had to consult with its own members before being able to make meaningful representations. In the meantime there was a justifiable fear that the integrity of the whole of the examination process had been affected by the dishonest conduct. It is in my view the duty of a Court to strongly lean to considerations of honesty and integrity where discretionary powers are exercised by means of a value judgment. If dishonesty becomes the norm the whole fabric of society will tear apart, and the rule of law will only remain as a dream.

20.

I am also of the view that Applicants' Counsel in this case is incorrect in submitting that the order made by me in the first mentioned case, did not affect his case. The fact that the examinations will now be written in July, will be to the benefit of thousands of student nurses. Of course as a matter of logic, some may be prejudiced thereby, but I have no details as to how many students

would suffer actual prejudice in this context. It is just as well conceivable that some students who did not obtain the relevant pass mark may, after a further month of diligent studies, actually pass the relevant exams. Some may get better marks, other may get lower marks. In the overall scheme of things, however, I am of the view that the Respondents' departure from the right to be heard was reasonable and justified on the facts. The Respondent has a statutory duty and is obliged and entitled to exercise such.

21.

It is also clear, contrary to Applicant's Counsel's argument, that where PAJA applies, it may not be sidestepped by reference to the principle of legality.

See: State Information Technology Agency v Gijima Holdings (Pty) Ltd {2016] 4 ALLSA 842 (SCA).

22.

The result of the totality of the foregoing is that this application is dismissed with costs.

23.

CHRIS HANI BARAGWANATH NURSING STUDENTS + 4

SOUTH AFRICAN NURSING COUNCIL + 1 43526/2017

This was the third application that I heard in the present context. The urgency relied on in this case, quite apart from the order that I made in the first application was that if examinations were to be written on 28 June 2017 , there would be insufficient time to prepare. An interdict was also sought restraining the Respondents from arranging another examination paper pending the outcome of an action for a final interdict. It was apparently also sought that the examinations written in May would stand. The Supplementary Affidavit in this context was dated 27 June 2017.

24.

It is clear from a "meeting attendance register" that the Applicants before me, if such register is indeed correct, comprises

some 60 students. The Notice of Motion was dated 27 June 2017, and it is abundantly clear, with reference to the rules relating to urgent applications and the Practice Manuel that this application should not have been set down for the week of 2 7 June at all. The deponent to the Founding Affidavit identifies himself as follows: "I am an adult male the leading, the leading structure of the nursing student of the abovementioned College students (herein referred as "Nursing student'') ". It is said that he as such is duly authorized to institute these proceedings on behalf of the Applicants. This does not follow and the exact status of the deponent and his authority to make the Founding Affidavit is certainly not clear. It is not stated how many students are actually represented in the Nursing Colleges referred to. As far as the point in dispute is concerned, the following was said: "The Applicants contend that re-writing of the examination paper shall amount into prejudice as no proper or clear explanation from the First Respondent to how and which College did have an access to the exam paper prior to the examination" (sic). Reference is made to PAJA and it is contended in the Founding Affidavit that a decision must be carefully considered, must be fair and transparent. A fair procedure must also be followed.

25.

Counsel for Applicants in this case aligned himself with the argument in the previous matter. Apart from that, the way that this application was drawn, served and filed, does not comply at all with the relevant Practice Manuel relating to urgent applications, nor does it comply with the Rules of Court, relating to applications in general. Almost no factual allegations were made, and what is contained in the Founding Affidavit is largely argumentative. The status of the deponent to the Founding Affidavit remains a mystery and one cannot gather even how many Nursing students in fact authorized an application to Court.

26.

Apart from that, I refer to my reasons given in the previous case, and this case similarly deserves to be dismissed. Having regard to the description of the Applicants, as per the heading to the application, and the total lack thereof in the Founding Affidavit, I am unable to say at this stage who should pay the costs of the application. I can only ask at this stage in the context of the description of the First Applicant , who are the "Chris Hani Baragwanath Nursing Students"? Against whom exactly would a cost order be enforced? In the light thereof, the costs are reserved inasmuch as generally speaking cost orders are not usually made in urgent proceedings, especially if there is to be an argument about the effectiveness of any such order. It would' most ·1ikely be open to the Respondents to argue that the deponent to the Founding Affidavit is to bear the costs personally and/ or the Attorney, but I leave this argument to another day and another forum.

______________________

JUDGE H.J FABRICIUS

JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA