Lunghile Nursing School v South African Nursing Council and Another (2020/57264) [2020] ZAGPPHC 634 (16 November 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

16 November 2020

Case Number. 2020/57264

In the matter between:

LUNGHILE NURSING SCHOOL

Applicant

and

SOUTH AFRICAN NURSING COUNCIL

1st Respondent

MINISTER OF HEALTH

2nd Respondent

JUDGMENT

MOKOSE J

[1] The applicant applies on an extremely urgent basis for an interim interdict to suspend or stay the first respondent's decision of 28 October 2020 to de-accredit the applicant pending the finalisation of an internal appeal, alternatively a review application to the High Court.

[2] The applicant has been conducting a nursing school for the last 19 years and has been accredited with the South African Nursing Council ("the Nursing Council") during that time as a nursing education institution in terms of Section 4(2)(f) of the Nursing Act 33 of 2005 ("the Act").

[3] The second respondent has filed a notice to abide by the decision of the court.

[4] The salient facts of the matter are that on 28 and 29 September 2017 the Nursing Council decided to bar the applicant from taking further students unless the applicant had provided certain records. The decision affected 73 student nurses referred to as the 2018 group which the Nursing Council had refused to register for enrolment of exams which were to take place in May 2019. An internal appeal yielded no results, culminating in an urgent application to compel the registration of those students being launched. The result of that application was a judgment in favour of the applicant by Sardiwalla Jon 27 June 2019.[1]

[5] In his judgment, Sardiwalla J found that the Nursing Council had denied the applicant the right and opportunity to adequately respond to the allegations of non-compliance of the Act. The court set aside the decision of 28 and 29 September 2017 and remitted the matter back to the Nursing Council for its re-consideration. The court further granted the applicant an opportunity to make proper representations by furnishing the requisite records to the Nursing Council for it to re­ consider its decision and register those student nurses who met the required standard and inform those who did not and prescribe remedial action. It was also ordered that the Nursing Council arrange a date for the students to write their examinations.

[6] The Nursing Council instituted an appeal process which was subsequently abandoned. However, the Nursing Council complied fully with the judgment resulting in the June 2018 group sitting the examinations.

[7] On 20 July 2020 the Nursing Council addressed a letter to the applicant in which it raised concerns similar to those raised in 2017. It gave the applicant 30 days within which to make written representations why it should not be de-accredited due to the submission of falsified information to the Nursing Council. It is notable that no details were provided as to the names of the students the concerns relate to nor the dates of the clinical placements and programmes. The applicant then responded by requesting an opportunity to investigate the matter thoroughly through its clinical facilitators.

[8] The applicant applied for the registration of 94 of its students for examinations with the Nursing Council on 6 August 2020. The registration fee was accepted for examinations scheduled to be held on 18 and 20 November 2020.

[9] On the 28 October 2020, the applicant received a letter from the Nursing Council notifying them that due to the lack of written submissions, they had decided to de-accredit the applicant for submitting falsified information. The applicant's attorney then endeavoured to secure an undertaking from the Nursing Council in respect of the impending examinations but did not succeed. The applicant avers that it requested details of the Appeals Secretariat from the Nursing Council, to which no response has been forthcoming.

[10] The applicant avers that the decision to de-accredit it makes it impossible for the students to write the exams on the scheduled dates or to be transferred to other institutions at this late stage. The applicant's attorney, in his confirmatory affidavit, points out to the court that should the interdict not be granied, the practical effect of transferring the students to other institutions would mean that the applicant would have no students and would accordingly have to close down. This also directly threatens the survival of the applicant.

[11] The first respondent is of the view that the manner and degree of urgency with which the matter was enrolled by the applicant constitutes a gross abuse of the court process. Furthermore, the first respondent was of the view that the applicant had failed to justify the hearing of this matter on an urgent basis. He brings to the court's attention the chronology of events being:

(i) receipt of the letter by the applicant on 15 July 2020 in which it was informed to state within 30 days why it should not be de-accredited;

(ii) on 6 August 2020 the applicant applied for registration of its students for the examinations scheduled to take place on 18 and 20 November 2020 at a time when it was well aware that it was facing de-accreditation;

(iii) two days before the expiry of the 30-day period to respond to the letter of 15 July, the applicant requested to go through records received from clinical facilities to verify the alleged discrepancies. This occurred on 13 August 2020;

(iv) on 18 August 2020 the first respondent forwarded an email to the applicant requesting a signed letter as well as a response to the second resolution conveyed in the letter of 15 July 2020 being the resolution to de-accredit the applicant should it not furnish the Nursing Council with acceptable reasons to the contrary;

(v) on 28 October 2020 and only after receiving notice that it had been de-accredited, the applicant contacted the first respondent enquiring why the decision had been taken without being afforded an opportunity of replying thereto.

[12] The first respondent is further of the view that the applicant is the author of its own misfortunes and that the urgency as alleged by the applicant is self-created. It notes that the Notice of Motion was signed by the applicant's legal representative on 6 November but was only served on them on the evening of 8 November, thus ensuring very little time for the first respondent to file an answering affidavit. No explanation was proffered by the applicant for the service of the papers on the evening of the 8th November.

[13] Rule 6 (12) (b) confers a general judicial discretion on a court to hear a matter urgently. It provides that the applicant must:

"....set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course."

[14] The test of urgency in applications of this nature is whether, if this application is brought in the normal course, the applicant will be able to achieve sufficient relief. It is apparent to the court that the applicant would not be afforded substantial relief. Tuchten J in the matter of Mogalakwena Local Municipality v Provincial Executive Council, Limpopo and others[2] went so far as to note:

"It seems to me that when urgency is in issue the primary investigation should be to determine whether the applicant will be afforded substantial redress at a hearing in due course. If the applicant cannot establish prejudice in this sense, the application cannot be urgent."

[15] Having considered the papers and the submissions presented by the parties, I am of the view that the matter is urgent and that non-compliance with the normal Rules of Court regarding service, form and time-periods as contemplated in Rule 6 (12) (b) of the Uniform Rules of court is condoned.

[16] A request for an interim interdict is a request for an order preserving the status quo pending the determination of the rights of the parties. An interim interdict does not involve the final determination of those rights and does not affect their final determination.[3]The requirements for the grant of an interim interdict are as set out in the matter of Setlogelo v Setlogelo[4] which principles were refined in the matter of National Treasury v Outa[5] by Moseneke DCJ where is was held that the court must find on the evidence presented that:

(i) the applicant has established a prima facie right;

(ii) a reasonable apprehension of irreparable and imminent harm if the interdict is not granted;

(iii) the balance of convenience must favour the grant of the interdict;

(iv) there must be an absence of a similar protection by any other remedy.

[17] The principles by which an application for a temporary Interdict are judged are also set out in the matter of Webster v Mitchell[6] in which it was held that:

"In the grant of a temporary interdict apart from prejudice involved, the first question for the court in my view is whether, if interim protection is given, the applicant could ever obtain the rights he seeks to protect. Prima facie that needs to be shown."

[18] The applicant argues that the decision of the first respondent to de-accredit the applicant is irrational and erroneous as it appears that the reason for its de-accreditation ls the failure of the applicant to make submissions as requested in the letter of 15 July. The applicant avers that it is apparent that the first respondent drew an inference that there was a refusal by the applicant to make the submissions.

[19] In answer, the first respondent refers to an email which was sent to the applicant on 18 August 2020 in which it requests a signed letter and a copy of a resolution. It is apparent that the email was not received by the applicant as the address to which it was sent was incorrect. It is also apparent that the first respondent was of the view that their email was simply being ignored.

[20] Furthermore, Counsel for the first respondent avers that the applicant has failed to clearly identify any right which is threatened by the first respondent. Mr Maake, on behalf of the applicant, merely avers in his confirmatory affidavit that the de-accreditation has adverse effects on two constitutional rights being the right to education and the right to carry out the trade of its choice in terms of the Constitution. I agree with counsel for the first respondent that these two rights are limited.

[21] However, the applicant is further of the view that the audi alterem partem rule was not adhered to. Whilst the first respondent contends that the applicant was afforded a reasonable time within which to react to the allegations of falsifying the records and did not avail itself of this opportunity, I am of the view that the time afforded in a matter as important as the matter in casu, taken with the fact that the request embodied in the letter of 18 August was not received by the applicant and that no information was furnished to the applicant about the transgressions, are evidence of non- adherence to the principles of the audi alterem partem principle. Furthermore, I am satisfied that the applicant did endeavour to meet with the legal representative of the first respondent in an attempt to obtain information of the alleged transgressions.

[22] The applicant contends that should the interdict not be granted, its students would be severely prejudiced. The first respondent is, however, of the view that the students are not party to the application on hand and that irreparable harm suffered by the students is not necessarily irreparable harm suffered by the applicant. At the end of the day, the de-accreditation of the school would severely prejudice the students as they would be precluded from writing examinations.

[23] Whilst the first respondent contends that the applicant failed to indicate in its affidavit what alternative remedy could be afforded to it by not including details and efforts it may have made such as the possibility of being transferred to another institution, the court cannot close its eyes to the possible harm to the students not being able to write the examinations. The first respondent has failed to convince the court that should the applicant be de-accredited, what would be the effect on the students and the arrangements would be to accommodate those who have not been implicated in any wrongdoing. As a result, the balance of convenience falls to the applicant.

[24] In view of the above reasons and the reason that the Nursing Council relies on five grounds for the de-accreditation as contained in Regulation 14(1)(a) to (e) in which only one ground finds application in this matter, the following order is granted:

(i) the decision of the first respondent dated 28 October 2020 to de-accredit the applicant is hereby suspended pending the finalisation of the internal appeal process being lodged by the applicant in terms of Section 57 of the Nursing Act 33 of 2005 within 30 days of this order;

(ii) the respondent is ordered to pay the costs of this applicant on a scale as between party and party.

SN I 'Mokose

Judge of the High Court of South Africa

Gauteng Division, Pretoria

Electronically submitted therefore unsigned

Delivered: this judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the parties/their legal representatives by email and by uploading it to the electronic file of this matter on Caselines. The date for hand-down is deemed to be 16 November 2020.

Appearances

For the Applicant:

Adv DT Skosana SC

instructed by

Masilo Maake Attorneys

For the First Repondent:

Adv JAL Pretorius

Maponya Attorneys

Date of Hearing: 12 November 2020

Date of Judgement: 16 November 2020

[1] Lunghile Nursing School v The South African Nursing Council and others (31345/2019) dated 27 June 2019

[2] [2014] 4 All SA 67 (GP) at para 64

[3] National Gambling Board v The Premier, Kwas-Zulu Natal and others [2001] ZACC 8; 2002 (2) SA 715 (CC) at para 49

[4] 1914 AD 221

[5] 2012 (6) SA 223 (CC)

[6] 1948 (1) SA 1186 (W) at 1189