Pietermaritzburg Fertility Clinic (Pty) Ltd and Others v Minister of Health and Others (81332/18) [2019] ZAGPPHC 479 (30 August 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG PROVINCIAL DIVISION, PRETORIA

CASE NO: 81332/18

In the matter between:

PIETERMARITZBURG FERTILITY CLINIC (PTY) LTD First applicant

KASTURI MOODLEY Second applicant

KEVASAN DHAVARAJ Third applicant

SAMPSON AMPOFO KORANTENG Fourth applicant

STACEY LEIGH WILSON Fifth applicant

And

MINISTER OF HEALTH First respondent

HEALTH PROFESSIONS COUNCIL OF SOUTH AFRICA Second respondent

SOUTHERN AFRICAN SOCIETY OF REPRODUCTIVE

MEDICINE & GYNAECOLOGICAL ENDOSCOPY Third respondent

JUDGMENT

KEIGHTLEY, J:

INTRODUCTION

1. The applicants in this matter seek a declaratory order from this court in the following terms:

"(It is declared that) the definition of 'competent person' in regulation 1 of the draft Regulations Relating to the Artificial Fertilisation of Persons in terms of section 68 of the National Health Act 61 of 2003 that were published for public comment under Government Notice 1165 in the Government Gazette 40312 of 30 September 2016, is declared

unconstitutional."

2. The first applicant (the clinic) was established in July 2016 by the second, third, fourth, and fifth applicants. It is the only fertility clinic in Pietermaritzburg, and is equipped to provide all services related to the process of assisted reproduction, including procedures that fall within the statutory definition of artificial fertilisation. The second to fourth applicants are all specialists in gynaecology and obstetrics, and are registered as such in terms of the Health Professions Act, 1974. They all have training in reproductive medicine. The fifth applicant is a clinical technologist with training in reproductive biology and related laboratory procedures.

3. Section 68(1) of the National Health Act 61 of 2003 gives the Minister of Health (the Minister) the power to make regulations regarding, among other things, artificial fertilisation of persons. On 1 March 2012 the Minister published Regulations in this regard in Government Notice R175 in the Government Gazette No. 35099 of 2 March 2012. I shall refer to these as the current, or the 2012 Regulations. On 30 September 2016, the Minister published the draft Regulations that the applicants seek to impugn (the Draft Regulations).

4. It is important to note that these Regulations are no more than a draft. Furthermore, they were expressly published with a view to inviting public comment. It is common cause that the applicants did not submit any comments on the Draft Regulations within the requisite time period. Instead, they wrote a letter of demand to the Minister on 18 July 2018 in which they required an undertaking that, in the event that he made new regulations, he would refrain from changing the current definition of "competent person" as indicated in the Draft Regulations. In the event that the undertaking was not forthcoming, the applicants stated that they would launch legal proceedings to protect their, and the general public's, constitutional rights. The Minister did not give the demanded

undertaking and the application was duly launched.

5. It is common cause that various other interested parties have made submissions in response to the invitation published together with the Draft Regulations, and these are still in the process of being considered by the Minister. In the answering affidavit deposed to on behalf of the Minister, the relevant Deputy-Director General in the Department of Health states that the Draft Regulations: "remain essentially the first draft and may, depending on the nature and the extent of the representations made by various bodies, be changed by the (Minister)".

6. At present, then, the 2012 Regulations remain in force. They provide that no person other than a "competent person" may perform certain procedures essential to the process of artificial fertilisation. "Competent person" in relation to artificial fertilisation is defined to mean:

"a person registered as such in terms of the Health Professions Act 56 of 1974 who is-

(a) a medical practitioner specialising in gynaecology with training in reproductive medicine;

(b) a medical scientist, medical technologist, clinical technologist with training and reproductive biology and related laboratory procedures."

It is common cause that at present, applicants two to four are competent persons as defined in paragraph (a), and the fifth respondent is a competent person as defined in paragraph (b) of the definition in the current Regulations. As such, there is no impediment to them continuing to perform the work that they, and indeed the clinic, carry out for patients seeking assisted reproductive services

involving artificial fertilisation.

7. The Draft Regulations propose a change in the definition of "competent person" in relation to artificial insemination

such that, if adopted and enacted, would limit this category to a person who is:

" ... a medical practitioner registered with the Health Professions of South A&ica (HPCSA) with expertise in specialist gynaecologist and sub-specialist in Reproductive Medicine, or a trainee in Reproductive Medicine in a training unit under the supervision of a registered HP CSA sub-specialist."

8. It is common cause that second to fourth applicants are not registered with the HPCSA as having a sub-specialisation in Reproductive Medicine. They say that it would be very difficult for them to find positions as trainees in Reproductive Medicine in view of the limited training positions available, and the fact that such positions are not available within the KwaZulu-Natal area. It is also

common cause that were the Draft Regulations to be enacted, and were they to be applied to fifth respondent, she would also not meet the requirements laid down, as the draft definition excludes medical technicians.

THE CONSTITUTIONAL CHALLENGE

9. It is on this basis that the applicants seek to impugn the constitutionality of the Draft Regulations. They contend that: "It

does not make any logical sense why medical specialists in gynaecology and obstetrics with training in reproductive medicine –

such as my colleagues ... and me – who were good enough to be competent persons according to the 2012 Regulations, have somehow

ceased to be good enough to be competent persons and practice our profession according to the draft Regulations ."

10. Thus, they say that the draft definition is arbitrary and violates the principle of the rule of law, as guaranteed in section 1(c) of the Constitution, and is for this reason unconstitutional and invalid. They say further that the draft definition is contrary to their constitutional right to choose and practice their profession,[1] and it is contrary to the rights of the general public to access health care services.[2]

11. In addition, the applicants argue that should the Draft Regulations be enacted, with the draft definition of "competent person" intact, it will render immediately illegal their practice of reproductive medicine. This will have not only financial implications for them, but it will also cause irreparable harm to their fertility patients, particularly those who have commenced, but not yet completed the assisted reproduction process. The applicants aver that the effect of the adoption of the Draft Regulations, with the draft definition, will cause all in vitro fertilisation in the country to come to a complete standstill, and that this will be catastrophic for fertility patients.

THE CONSTITUTIONAL CONUNDRUM

12. It is not difficult to identify the constitutional conundrum inherent in the applicants' challenge to the Draft Regulations. Our constitution is clear that courts have a duty to uphold the constitution and to protect constitutional rights. The Constitutional

Court has held that:

"In our constitutional democracy, the courts are the ultimate guardians of the Constitution. They not only have the right to intervene in order to prevent the violation of the Constitution, they also have a duty to do so."[3]

Equally, however, it is axiomatic that the doctrine of the separation of powers is part of our constitutional design.[4] It is a system of checks and balances that: "... focuses on the desirability that the constitutional order, as a totality, prevent(s) the branches of government from usurping power from one another".[5] The principle of the separation of powers requires that even where courts are exercising their obligation to ensure that the other

branches of government exercise their powers within constitutional bounds, courts must observe the limits of their own powers.[6]

13. The pull between these two fundamental constitutional principles gives rise to a conundrum when a litigant requests the court's

assistance, based on an alleged threat to constitutional rights, to interfere with the law-making (or other decision­ making) process of an organ of state before that process is completed. In other words, if we consider the present case, where judicial intervention is sought while the executive is still vested with the constitutional authority to formulate Regulations. The question is when is it constitutionally competent for a court to enter into the law­ maker's domain and prescribe how (or how not) the Regulations should be formulated?

14. The applicants lay this precise conundrum before me for determination in this case: they say that their constitutional rights are threatened, and thus that they are entitled, under s38 of the Constitution, to approach the court for appropriate relief; further,

if I find the threat to be established, they say that I am duty-bound, under s172(1)(a) of the Constitution to make the necessary declaration of unconstitutionality of the offending definition in Draft Regulation, albeit that the law­ making process is not yet complete in that the Minister has not yet decided to adopt the Draft Regulations and give them the force of law.

15. Their argument is that there is a very clear constitutional violation inherent in the definition of "competent person" in the Draft Regulations. The submission in this regard is that the plain wording of the draft definition is capable of only one meaning, viz. that the draft definition will have retrospective effect , preventing them from practising as artificial fertilisation health care providers, and thus depriving them (and the general public) of constitutional rights that they currently enjoy. They say that there is no justification for this. According to the applicants, in these circumstances the court is duty bound to interfere, notwithstanding that the executive branch of government is still in the process of exercising its constitutional mandate to make Regulations.

16. The Minister, on the other hand, contends that the challenge is premature: the Draft Regulations were published for public comment,

and the law-making process requires that these be considered before the next step can be taken. The Minister is still considering the comments that were made, and these will be taken into account before any new Regulations are enacted to replace the current ones. Implicit in the Minister's submission is that the court should not interfere in his exercise of his constitutional authority. In terms of s85(2) of the Constitution, it is the President and members of his Cabinet that exercise executive authority to, among other things, implement national legislation and perform other executive functions provided for in Acts of Parliament. Under the National Health Act, it is the Minister who is vested with the power to make Regulations, and the Minister's sphere of competence must be respected by the courts, at least until such time as new Regulations (in whatever form they may take) are actually signed into law.

17. The Minister also contends that the applicants' application is flawed in that it seeks relief in the abstract. This is because the application is based on an assumption that if the draft definition is adopted, it will have retrospective effect. In the answering

affidavit deposed to on behalf of the Minister, the deponent states that the intention behind the draft definition is that it will

regulate practitioners who intend to enter the profession and practice in the future, and not those who are already accepted as

competent persons. The deponent repeatedly places on record in the answering affidavit that the draft definition, if adopted, would not have retrospective effect. On this basis the Minister denies that the draft definition, if adopted, would have the effect of completely, or even partially, paralysing existing fertility laboratories and the services rendered by artificial fertilisation reproductive health service providers.

THE APPLICABLE PRINCIPLES

18. There is a body of jurisprudence that lays down the principles that apply in determining when it is constitutionally competent for a court to step into, and make a determination on, the exercise of power by another branch of government in circumstances such as those that are present in this case.

19. In Doctors For Life,[7] the Constitutional Court considered, but did not find it necessary to determine, the question of when it would be competent for the court to issue declaratory relief in respect of parliamentary proceedings before Parliament had concluded its deliberation on a Bill. The Court noted that in other jurisdictions, and out of respect for the principle of the separation of powers, courts have traditionally resisted intrusions into the internal procedure of other branches of government. However, where it is necessary to do so in order to avoid a violation of the Constitution, courts have developed a "settled practice" or general rule of jurisdiction to govern judicial intervention:[8]

"The basic position appears to be that, as a general matter, where the flaw in the law-making process will result in the resulting law being invalid, Courts take the view that the appropriate time to intervene is after the completion of the legislative process. The appropriate remedy is to have the resulting law declared invalid. However, there are exceptions to this judicially developed rule or 'settled practice'. Where immediate intervention is called for in order to prevent the violation of the Constitution and the rule of law, courts will intervene and grant immediate relief. But intervention will occur in exceptional cases, such as where an aggrieved person cannot be afforded substantial relief once the process is completed because the underlying conduct would have achieved its object."[9]

20. In Glenister, the Constitutional Court endorsed this as the appropriate test to apply. The Court went on to note that an applicant for judicial intervention would have to show that the resultant harm will be material and irreversible, and that the burden for an applicant is "formidable".[10] Further:

"Cases that would warrant intervention on this approach will be extremely rare. ... (l)t is not the introduction of a Bill that affects rights; it is the making of a law that does that. Thus, before the law has been enacted, it would be extremely unusual to be able to demonstrate harm. In my view, it is not necessary in this case to attempt to identify with precision what would constitute 'exceptional circumstances' or to formulate in advance in what circumstances they may arise. The question whether exceptional circumstances exist depends on the facts of each case and is a matter to be considered on a case-by-case basis."[11]

21. In the case before me the applicants seek judicial intervention at the stage at which the Minister is still deliberating on the Draft Regulations and the comments received from parties in response to its publication. The question that arises is whether they have met the test as laid down in the above principles to warrant such intervention.

HAVE THE APPLICANTS MET THE TEST FOR JUDICIAL INTERVENTION?

22. As I have already discussed, the applicants claim that they (and the general public) will suffer irreparable and immediate harm if the Draft Regulations are adopted with the draft definition of competent person intact. It is difficult to understand how this can be so. It is also difficult to understand how the applicants can claim that they will not be able to. be afforded substantial relief once the deliberative process is complete and new Regulations are adopted (if indeed this occurs). This is so for a number of reasons.

23. In the first place, it is entirely speculative that the Minister will indeed enact the Draft Regulations, let alone with the impugned definition of competent person as is. The Minister is on record in these proceedings as having committed to a process of giving consideration to all comments that have been submitted following the invitation issued parallel with the publication of the Draft Regulations. The Minister is also on record as stating that the Draft is no more than a first draft. The present case is similar in this regard to the circumstances prevailing in Glenister,[12] where the Court noted that: "... it is not clear at this stage what Parliament will decide to do. The applicant's case regarding

material and substantive harm is premised on the assumption that the legislation will be enacted without material change".

24. The fact of the matter is that the Draft Regulations are not yet in force, and indeed, there is no certainty that they will ever be put into force as is. As such, there is no established threat to the applicants' constitutional rights at this stage to warrant judicial intervention. It would be entirely inappropriate, and indeed incompetent, for this court to flex its powers of intervention in such speculative circumstances.

25. The applicants made much of the fact that, unlike parliamentary processes, the enactment of Regulations by the Minister can be done with no more than a signature and publication. In my view, this takes the matter no further. The important point, if one has regard to the principles set out above, is whether the applicant will have no substantial remedy if the law (in this case the Draft Regulations) are enacted. Our courts are faced on a regular basis with constitutional challenges to Regulations and Acts of Parliament. There is nothing exceptional in this: it is what is envisaged under our constitutional dispensation. If the applicants indeed wish to challenge new Regulations that the Minister may decide to enact, this avenue will be open to them. It will also be open to them to seek relief from the court to protect their position pending the outcome of any constitutional challenge they may mount. This is a process that is engrained in our legal system and is regularly used by litigants to maintain the status quo pending the finalisation of legal proceedings that will determine the respective rights and obligations between the parties.

26. An additional difficulty with the applicants' case is that it is based on the further speculative assumption that the draft definition of competent person (if adopted at all) is incontestably retrospective in operation and hence clearly unconstitutional. The Draft Regulations are silent on the question of whether the definition will apply to persons who were competent under the 2012

Regulations. The Minister is on record as stating that it is not intended to affect their competence retrospectively, and that they will continue to be treated as competent persons.

27. While our law still recognises that words in a statute should be given their ordinary meaning, this general principle is now subject to important riders. One of these is that statutes must be interpreted consistently with the Constitution, where reasonably possible, and should be interpreted to preserve their constitutional validity.[13] Even if the Draft Regulations are enacted with the inclusion of the draft definition of competent persons, that definition remains open to interpretation. In these circumstances, the Minister cannot be criticised for denying that the draft definition is unconstitutional.

This court would have to resort to unfounded speculation to find, at this stage, that the definition is incontestably retrospective and clearly unconstitutional, as asserted by the applicants.

28. For all of these reasons I am constrained to conclude that there is nothing exceptional about the present case warranting judicial

interference at this stage of the Minister's regulation-making process. On the contrary, it seems to me to be plainly the type of case that must await the finalisation of that process before it would be competent for the court to intervene. Were it otherwise, the constitutional delineation between executive and judicial functions would be rendered meaningless. The Minister is correct in asserting that the applicants acted prematurely with their challenge, and that it amounts to an impermissible abstract application. The separation of powers requires that the Minister's regulation-making process must be left to run its course. If, at the conclusion, the applicants remain of the view that their constitutional rights have been violated, the doors of the courts will be open to them. However, at this stage, the doors are closed.

COSTS

29. When it comes to constitutional litigation, the general rule is that in cases where the government succeeds against a litigant, each party should pay its own costs.[14] This is, among other things, to avoid the chilling effect that the prospect of an adverse costs order may have against a party wishing to litigate in order to protect constitutional rights. The principle is also based on the recognition that constitutional litigation is generally of broader public interest and for this reason, should not be discouraged.[15]

30. However, the general principle is not without limitation. If an application is frivolous or vexatious, or otherwise manifestly inappropriate, the applicant should not expect to be immunised against an adverse costs award.[16]

31. This was not a complex matter. The applicable principles are clear, and have been in the legal domain for a number of years. Had the applicants properly considered them they would have appreciated that their challenge was likely to be found to be premature. Having said this, however, in my view, although the applicants' application was ill-advised, I do not believe it meets the standard of manifest inappropriateness warranting a departure from the general principle.

32. For these reasons, I find that no order of costs should be made against the applicants.

CONCLUSION AND ORDER

33. I make the following order:

"The application is dismissed."

_____________________

RM, KEIGHTLEY

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

DATE OF HEARING: 13 AUGUST 2019

DATE OF JUDGMENT: 30 AUGUST 2019

APPEARANCES

APPLICANT'S COUNSEL: D THALDAR

C WOORDROW

INSTRUCTED BY: GOUSE VAN AARDE INC

1ST RESPONDENT'S COUNSEL : ZZ MATEBESE (SC)

: BJ NODADA

INSTRUCTED BY: THE STATE ATTORNEY

[1] In terms of s22 of the Constitution.

[2] In terms of s27(1)(a) of the Constitution.

[3] Per Langa CJ in Glenister v President of the Republic of South Africa [2008] ZACC 19; 2009 (1) SA 287 (CC), para [33]; Doctors For Life International v Speaker of the National Assembly and Others [2006] ZACC 11; 2006 (6) SA 416 (CC), para [70].

[4] Glenister, above, para (29)

[5] Glenister, above, para [35]

[6] Glenister, above, para [33]; International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC), para [93]

[7] Above, n3, paras [67]-[71]

[8] At para [68]

[9] Above, n3 at para [69]

[10] At para [44]

[11] At para [47]

[12] Above, para [51]

[13] Cool Ideas 1186 CC v Hubbard & Another 2014 (4) SA 474 at para [28]; Public Servants Association obo UBOGO v Head, Department of Health, Gauteng & Others 2018 (2) SA 365 (CC) at para [43]

[14] Biowatch Trust v Registrar Genetic Resources and Others 2009 (6) SA 232 (CC) at para [22)

[15] Biowatch at para [23]

[16] Biowatch at para [24]