Private Health Education Providers of South Africa (Pty) Ltd and Others v South African Nursing Council and Another (22388/15) [2015] ZAGPPHC 745 (10 November 2015)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

REPORTABLE: NO

OF INTEREST TO OTHERS JUDGES:NO

DATE: 10/11/15

CASE N0:22388/15

In the matter between:

PRIVATE HEALTH EDUCATION PROVIDERS

OF SOUTH AFRICA (PTY) LTD

FIRST APPLICANT

UKWAZI SCHOOL OF NURSING (PTY) LTD SECOND

APPLICANT

EMPILWENI EDUCATION (PTY) LTD

THIRD APPLICANT

CHATSMED CANDLELIGHT NURSING SCHOOL (PTY) LTD FOURTH

APPLICANT

and

THE SOUTH AFRICAN NURSING COUNCIL FIRST

RESPONDENT

THE SOUTH AFRICAN QUALIFICATIONS AUTHORITY SECOND

RESPONDENT

JUDGMENT

RANCHOD J:

[1] I heard this matter in the urgent court in a week where about 54 applications were enrolled to be adjudicated by two Judges. Due to limitations of time and voluminous papers (about 540 pages) as well as fairly lengthy oral submissions by the parties it was virtually impossible to properly consider and deliver a judgment in that week. I was informed by applicant's counsel that if I could not deliver judgment by the following Monday as I planned to do, they could be informed of a later date. The delivery of judgment has been unavoidably delayed due to computer problems during the migration of the "IT" system from the Department of Justice and Constitutional Development to the Office of the Chief Justice. As it happened, I was indisposed for two days in the following week which unavoidably led to the judgment being handed down only today.

[2] The applicants (PHEPSA) seek the following relief according to the notice of motion:

"1. That the application be enrolled as an urgent application and that the forms and service provided for in the Rules be dispensed with in terms of Rule 6(12).

2. That, pending the finalisation of the application brought in the above Honourable Court under case no. 22388/2015, the first

respondent be interdicted from enforcing the date of 30 June 2015 or any other date as the last date for the enrolment for learners for the qualification Nursing Auxiliary (R2176) and Enrolled Nurse (R2175).

3. That pending finalisation of the application brought in the above Honourable Court under case no. 22388/2015, the first respondent is ordered to allow and register learners enrolled or to be enrolled with the Nursing Education Institutions and the members of the applicant for the qualifications Nursing Auxiliary (R2176) and Enrolled Nurse (R2175).

4. Alternatively to prayer 3, that, pending the finalisation of a review application to be instituted by the applicants in order to have the decision referred to in and annexed to the first respondent's attorney's letter of 1 October 2015 reviewed and set aside (annexure 'PH?' to the founding affidavit), the first respondent is ordered to allow and register learners enrolled or to be enrolled with the Nursing Education Institutions and the members of the applicants for the qualifications Nursing Auxiliary (R2176) and Enrolled Nurse (R2175).

5. That the applicants be ordered to file the review application referred to in prayer 4 within 30 days of date of this order, failing

which any order granted in terms of prayer 4 will lapse.

6. That any of the respondents who oppose this application be ordered to pay the costs thereof.

7. Further and/or alternative relief.

[3] In the applicant's heads of argument the relief sought was narrowed down to prayers 4 and 5 of the notice of motion. A draft court order was handed up by applicant's counsel which, if I found in favour of the applicants provided for relief in terms of prayers 4 and 5.

[4] Much has been ventilated in the papers about the events prior to the launching of the present application including the pending review application referred to in the notice of motion. However, because of the view that I take of the matter it is not necessary for me to go into any great detail about the dispute between the parties. Hence what follows is in brief.

Background

[5] One of the objects of the first respondent (SANC) in terms of the Nursing Act 33 of 2005 is to establish, improve, control conditions, standards and quality or nursing education and training within the ambit of the Nursing Act and any other applicable laws.

[6] In terms of section 42 of the Nursing Act an institution (defined as a Nursing Education Institution, ("NEI")) intending to conduct a nursing education and training programme in order to prepare persons for practice in any of the nursing categories contemplated in section 31 of the Nursing Act must be accredited by the SANC.

[7] When accrediting a NEI for a particular nursing learning programme the SANC determines conditions of accreditation. In particular, it determines the number of intakes of learners per annum allowed to a NEI as well as the number of learners per intake.

[8] In terms of section 32 of the Act a learner undergoing education or training in nursing must apply to the Council to be registered as a learner nurse and the NEI at which the learner commences training, must within 30 days advise the SANC thereof and furnish the prescribed information to SANC.

[9] The SANC thus regulates nursing education in South Africa as a NEI can only train and educate learners in terms of nursing learning

programmes for which they are accredited by the SANC and no learner can be trained and educated in terms of a nursing learning programme accredited by the SANC unless registered by the SANC as a learner.

[10] By accrediting all NEl's for a particular nursing learning programme and prescribing the number of learners a NEI is allowed to train for a particular nursing learning programme, the SANC thus pre-determines the number of nursing learners qualifying in the country.

Legacy and Nursing Qualifications

[11] There are various nursing qualifications currently existing all of which are referred to as "Legacy Nursing Qualifications".

Two of these legacy qualifications relevant for present purposes are the course leading to enrolment or registration as a Nursing

Auxiliary and the other the course leading to enrolment or registration as a nurse.

[12] The members of PHEPSA are NEl's the majority of whom are accredited by the SANC to provide either one or both of the said two legacy programmes.

[13] The SANG is responsible for the development and implementation of the new nursing qualifications which will result in the phasing out of the existing nursing qualifications known as the "Legacy Nursing Qualifications" and the introduction of new qualifications.

[14] The process of developing and introducing new nursing qualifications started in 2009 and the phasing-out dates of the Legacy Nursing Qualifications and phasing-in date of new qualifications as communicated in the SANC's circulars were postponed from time to time as the structures for the new qualifications were not being put in place timeously by the SANG. Applicants say that in 2009 the phasing out date of all Legacy Nursing Qualifications and the implementation of the new nursing qualifications was communicated to be 30 June 2010. The date of 30 June 2010 was extended to 30 June 2012 in terms of the SANC's circular 3/2010 and it was thereafter extended to 30 June 2013 in terms of the SANC's circular 3/2011. The registrar of the SANG thereafter issued circular 7/2012 dated 20 September 2012 in which it stated:

"In view of the issues mentioned above and the submissions from various stakeholders in respect to the period required Qy NEl's in preparation of offering the new nursing qualifications, the South African Nursing Council has resolved to further extend the date of offering the legacy nursing qualifications to June 2015.' (My underlining).

Circular 13/2014 states: '... the council resolved that the following Legacy Nursing Qualifications must be discontinued paving a way for the implementation of the New Nursing Qualifications ...'. This circular deals with the legacy programme leading to the enrolment as a nurse (R2175) and the legacy programme leading to enrolment as a nursing auxiliary (R2176) and indicates that the end date for enrolment of learners for the two qualifications is 30 June 2015.

[15] Various discussions took place between PHEPSA (first applicant) and SANG (first respondent). PHEPSA expressed its concern to the SANG that the phasing out of the two legacy qualifications was determined without the registration and accreditation process for the new programmes having been put in place and asked the SANC to extend the date of 30 June 2015.

[16] The SANC seemingly refused to do so and the upshot of it was that the applicants launched the review application referred to earlier. That application is still pending before this court. It is sought there to review and set aside the decision reflected in the SANC's circular 13/2014. There appear to be factual disputes between the parties as to when the decision to implement the 30 June 2015 deadline was taken. Again, I need not go into the details of these disputes for purposes of this judgment.

[17] What is of importance is that the SANC caused a notice to be published in the Government Gazette on 9th October, 2015 (Notice No. R928) which states that the date from which all accredited Nursing Education Institutes offering the legacy courses will cease to admit new learners to such programmes is 1 November, 2015.

[18] Counsel for the respondents submitted that in the light of that Notice this court lacked jurisdiction to grant relief in conflict

with that notice whilst it still stands. The present application, says counsel, has been accordingly rendered moot. No review application in respect of Notice No R928 is before this court. I agree.

[19] The present application was launched on the same day that Notice R928 was published in the Gazette. No doubt the

applicants were unaware of the publication of the Notice at the time. However, as the application was launched on a semi-urgent basis (it was set down for the 271h October, 2015) after having been issued on the 91h October, they, in my view had ample time to re-consider their position.

[20] Applicants counsel submitted that Notice No. R928 has been published by the SANC. It is the Minister of Health who caused the promulgation of Regulations No. 169 and No. 171. Hence, it was submitted, only the Minister can publish the end dates for the relevant legacy courses. In my view, this submission cannot stand. In both Regulations (No. 169 and 171) it is stated at 11(3) that:

"Notwithstanding the provisions of subregulation (1), nursing education institutions accredited for education and training programmes in terms of the regulations mentioned in subregulation (1) will cease to admit new learners to such programmes on a date to be determined by the Council and published by notice in the Gazette."

[21] In my view, sub-regulation 11(3) is clear. It is the SANC that must determine the end date and cause it to be published by notice in the Gazette. This it has done in Government Gazette No. 39274 of 9 Ocotber 2015 as Notice No. R928. The applicants have not sought the setting aside of that Notice in this matter before me.

[22] As matters stand the granting of the relief sought will not address the issue of publication of R928 and it stands unchallenged. This application can thus not succeed.

[23] The respondents seek costs on a punitive scale. The applicants persisted with the matter in the urgent court when they knew or ought to have known that the consequence of the R928 Notice would be that the application was doomed to failure. In those circumstances a punitive costs order would be justified.

Order

[24] The application is dismissed with costs on the scale as between attorney and client.

__________________________

RANCHOD J

JUDGE OF THE HIGH COURT

Appearances:

Counsel on behalf of Applicants:

Adv Swart (SC)

Instructed by:

Alberts & Smit Attorneys

Counsel on behalf of Respondents: Adv van der Westhuizen (SC)

Instructed by :

Ngwenya Attorneys

Date heard :

28 October 2015

Date delivered:

10 November 2015