Stevens v Registrar of the Health Professions and Others (39719/2013) [2015] ZAGPPHC 1082 (13 October 2015)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NUMBER : 39719/2013

DATE: 13/10/2015

In the matter between:

MARK STEVENS APPLICANT

and

THE REGISTRAR OF THE HEALTH PROFESSIONS

COUNCIL OF SOUTH AFRICA FIRST

RESPONDENT

THE GENERAL MANAGER OF THE PROFESSIONAL SECOND RESPONDENT

BOARDS

THE MINISTER OF HEALTH

THIRD RESPONDENT

JUDGMENT

TLHAPI J

INTRODUCTION

[1] In this application Dr Mark Stevens ("Dr Stevens") seeks to review and set aside the refusal by the Health Professions Council of South Africa, to register him as a specialist obstetrician and gynaecologist in independent practice. He contests the applicability to him of the requirements which the First and Second respondents demand that he comply with, which are provided for in the Health Professions Act 56 of 1974, the Regulations and the adopted policy framework.

BACKGROUND

[2] Dr Stevens obtained his Bachelor of Medicines and Bachelor of Surgery degree from the University College, London on 15 July 1997. He was admitted as a member of the Royal College of Obstetricians and Gynaecologists, London on 23 May 2008. He practised in Great Britain as a medical practitioner and since August 1999 as a specialist obstetrician and gynaecologist in London. He moved to South Africa where he was granted permanent residency on 6 February 2007 and he was later issued with a green bar-coded South African Identity Document on 27 June 2008.

[3] He begun communicating with the First and Second respondents during August 2009 regarding his intention to register as a specialist

health practitioner in the independent sector in South Africa . In April 2010 he was offered a position at the Linksfield Hospital in Johannesburg by Dr J Bassin, Specialist Obstetrician and Gynaecologist. On 18 June 2010 he received an e-mail from the manager, Professional Boards of the Council which required the following to be submitted as a first step:

• A duly completed and signed Form 21; (an instruction form was attached to the email);

• Notarised certificate of his specialist qualifications

• Curriculum Vitae;

• Proof of registration as a specialist from the country where the qualification was obtained;

The instruction form itemised a " Job offer from Department of Health" as one of the documents he was required to submit. He assumed that this requirement did not relate to him because he had informed them of his intention to work in the independent sector. During July 2010 he forwarded his application and annexed proof of his qualifications; a certification of full registration as a general practitioner by the General Medical Council of Great Britain; a certification of his specialist qualification and membership of I registration with the Royal College of Obstetricians and Gynaecologists and a certified copy of his South African Identity Document.

[4] On 3 November 2010 the First respondent informed him that his application served before the relevant sub-committee dealing with

registrations and that his application as specialist in Obstetrics and Gynaecology " in the category Public Service" was not agreed to because he had to " submit ajob offer and provide proof of registration as a specialist from where he obtained his specialist qualification".

Dr Stevens contended that this response presented three difficulties to him. First, he had applied for registration as a specialist in the Independent Sector and not the Public Service; secondly he had never been informed to submit a job offer and, thirdly he had provided proof of his registration as a specialist from the Royal College of Obstetricians. Ms Linda Bossert, the Hospital Manager of Netcare Linksfiled Hospital submitted a job offer on his behalf. He obtained a letter from Mr Heuwen Morgan, Consultant Obstetrics and Gynaecology Sub-dean, UCL Medical School, University College, London, as proof of registration as a specialist. On 1 March 2011 the applicant was informed that the Subcommittee had resolved not to accept the job offer by Ms Linda Bossert for Netcare, which was a private institution and that he was still required to be registered as a public service specialist.

[5] In reply to a follow up letter of 4 April 2011 from his attorneys, Shaban Clark Coetzee Attorneys, he was informed on 19 April 2011 that he had not submitted a job offer from the Department of Health and that the application was considered in light of the First respondent's " regulations relating to the registration of persons whose qualifications were not prescribed for registration which were promulgated in 2009". Despite the First and Second respondent being informed that the application was by a permanent resident of South Africa and that the regulations expressly recognized his qualification, the applicant was referred to form 176 which catered for foreigners who wished to practice in South Africa.

[6] On 23 May 2012 he submitted a Foreign Work Management Programme application to the Department of Health. It was confirmed by the Director for Workforce Management, on 20 July 2012, that it was not necessary as a permanent resident to seek endorsement by the Department of Health, subject to him complying with the statutory and other requirements of the First respondent. Dr Stevens appointed new attorneys, Werksmans Attorneys, who on 28 September 2012 sent a letter of demand for a decision was forwarded to the First and Second respondent and details of documents and all the steps taken by him in seeking registration were given. On 17 October 2012 the First respondent reiterated its previous position.

[7] There were further communications by letter and telephone between the parties:

• Letter of 23 November 2012 from the First respondent that it "has no jurisdiction over the standards of education and training which was done outside South Africa. The HPCSA will recognize such education and training if ii is also recognized by the General Medical Council from the United Kingdom".

Dr Stevens was again referred to Regulation 2 of the 2009 regulations which required 'endorsement by the Department of Health and confirming employability in the public sector'. Furthermore, that if he wished to apply for exemption from spending time in the public service he needed to send a motivation to

the Directorate Workforce Management in the National Health Department.

• Letter of 2 January 2013 stating that Regulation 3 of the Foreign of the Qualifications Regulations was the one relevant to Dr Stevens and giving an explanation of the different registration systems in the UK and South Africa and reasons why Dr Stevens never registered with the General Medical Council in the UK.

• Letter of 24 April 2013 from the first and second respondent where it was pointed out for the first time that in terms of the HPCSA regulation 590 the applicant had to be registered as a public service specialist. Furthermore, that the Sub­ committee had resolved that he apply for registration in that category and to do the University exit examination for Independent Practice.

• On 21 May 2013 a call from Dr Mbhele of the Second respondent confirming that Dr Stevens was being treated as a South African, but that he was still required to submit proof of registration by the General Medical Council in London and that the only avenue open was for him to be registered in the public sector for a minimum period of one year.

[8] Dr Stevens contended that Dr Mbhele's advice failed to accord with the law. He had complied with the statutory and regulatory

requirements for registration in the independent sector. His qualification and speciality were expressly recognized by the rules

and he was therefore not required to write any 'exit examinations'. By virtue of his permanent residence status, his employment was not restricted to those within the public sector. He contended that the respondents' policy documents were not only contradictory among themselves but in conflict with the law in as far as the respondents wished to deal with his application as if he were a 'foreign health professional' seeking registration. The respondents refusal to register him undermined his rights as enshrined in sections 9, 10 and 22 of the Constitution. In the second supplementary affidavit Dr Stevens contends that the policy document annexed by the First respondent to the Rule 53 record was not a policy document officially and properly adopted by the First respondent. The policy was not brought to his attention and it was not before the subcommittee when the impunged decisions were taken. Although Mr Mbhele had referred to a number of policy documents only one according to him dealing with regulation of the registration of 'Foreign Qualified Specialists was considered. He contended that the policy document conflicted with the regulations promulgated in terms of the Act.

[9] Professor Barend Gerhardus Lindique ("Prof. Lindique") deposed to the answering affidavit. He is a professor of Obstetrics

and Gynaecology at the University of Pretoria. He is the chairperson of the Postgraduate Education and Training (Medical), a standing sub­ committee of the Medical and Dental Board ("the Board"), which was established in terms of section 15(1) of the Health Professions Act, 56 of 1974 ("the Act"). As a member of this sub­ committee he attended all the meetings when the impugned decisions were taken.

[10] Prof. Lindique averred that Dr Stevens application was considered under the category Public Service because of the applicable policy and requirements for registration of persons in his position. Dr Stevens application did not state in his application that he wished to be "considered for registration in the category independent practice (specialist) or public service (specialist)". In the covering letter annexed to the Form 21, he merely stated that he wished to be 'considered for registration 'as a specialist Obstetrician and Gynaecologisf' . In Form 21 he stated the speciality/sub-speciality for registration as " Obstertrics & Gynaecology". Again, the affidavit of Ms Linda Bossert did not state that the registration applied for was in the independent category.

[11] According to Prof Lindique, the letter from Dr Stevens attorneys of 4 April 2011 was the first indication that the application was for registration in the category independent practice specialist. The First respondent disputed the view that a qualification as a member of the Royal College of Obstetrics and Gynaecologists, constituted sufficient proof of registration as a specialist in the United Kingdom. The Royal College of Obstetricians and Gynaecology was concerned with 'examination and not statutory registrations'.

Registration as required by legislation in South Africa was proof of registration of Dr Stevens as a specialist obstetrician and

gynaecologist, by the General Medical Council, in the United Kingdom. The latter body was equivalent in status to that of the First Respondent in South Africa. In terms of the legislative and policy framework the First respondents reasons for refusal to register Dr Stevens were based on the following:

• practitioners in his position were required to serve in the public service for twelve months before applying for registration in the category of independent practice specialist; the job offer was not sufficient;

• he has not proved that he was registered as a specialist by the General Medical Council in the United Kingdom; he first had to comply with requirements set by

the Board; there was a distinction between the function of an examining authority (Royal College of Obstetricians and Gynaecologists) and a registering authority (General Medical Council); membership alone did not on its own make him eligible for entry onto the specialist register;

• the requirements set by the Board were rational and did not infringe the rights of Dr Stevens as entrenched in section 22 of the Constitution and if there was any infringement, which is denied, it was justified under section 36 of the Constitution;

• that Dr Stevens application submitted in July 2010 was for registration in the category of independent practice specialist 'was not borne out by the facts; the sub-committee dealing with registrations was entitled to assume that it was for registration in the public service 'because that was what Dr Stevens could be considered for registration for a period of 12 months'.

• Registration was regulated by Regulation 8(1) and 8(2) of GNR.590 of 20 June 2001 read with section 25 of the Act; and Regulation 3 of GN R101 published in GG31859 of 6 February 2009. The policy framework was meant to have uniform standards for registration. In the public service monitoring and supervision is provided for during the one year period of probation. The endorsement of Dr Stevens by the Department of Health did not 'override the policy that he should first serve in the Public Service' before consideration for registration in the independent practice(specialist). In respect of a foreign qualified professional there was need to evaluate the quality of training, to ensure that the required skill and professional competence is present, to guide the professions and for the protection of the public. In terms of the policy adopted in November 2009 a two track process of registration was provided for and the non-examination tract was applicable to Dr Stevens.

THE ISSUES

[12] It is required that the Act, Regulations and Policy be interpreted. It is submitted that the First respondent is obliged to accept the qualification of Dr Stevens as provided in section 35(1) and (2) of the Act The decision not to register Dr Stevens in the independent specialist sector was unlawful and should be set aside. It was sought that the decision not to register him be substituted by the court or referred back to the First respondent for reconsideration. The requirement that he work for six to twelve months in the public service before his application for registration as specialist in the independent specialist sector is considered, was unlawful. The First Respondent did not initially disclose the applicable policy to him, it was therefore not proper to use it in the determination of his application. On the other hand, even if the policy had been disclosed, its application to him was unlawfully rigid.

INTERPRETATION AND APPLICATION OF THE LEGISLATIVE FRAMEWORK

[13] It was common cause between the parties that the First respondent, t.he professional boards and the sub-committee established in terms of the Act had the power in terms of section 15 to make policy. The policy established in terms of section 15A of the Act, among others related to 'all matters affecting the education and training of persons ...in any health profession falling within the ambit of the professional board'. In terms of section 158(2) 'any decision of a professional board relating to a matter falling entirely within its ambit shall not be subject to ratification by the council and the council shall, for this purpose, determine whether a matter falls entirely within the ambit of a professional board.'

[14] Section 17 of the Act requires all health professionals, be they South African citizens, permanent residents or foreign nationals, to register a qualification and a category of practice with the First respondent before practising within the Republic. Registration

is not confined to the registration of a primary degree or a primary qualification in a field prescribed or not prescribed in the

regulations, it is also expected that additional qualifications and specialities be registered. The Act and regulations also provide for the registration of persons who wish to conduct a general practice as a medical practitioner or dentist, or of persons who wish to practice in the Public Service or who wish to practice in the independent sector as a specialist. Registrations of qualifications, specialities and subspecialities and the classification of categories are therefore subject to compliance with sections 24, 25 and 35 of the Act together with the applicable regulations.

[15] The South African system of registrations of health professionals differs with that which is applicable in the United Kingdom. Dr Stevens was registered first as a medical practitioner by the General Medical Council which is the registering authority and not the examining authority. He was requested to give proof of his registration as a specialist in the United Kingdom. He explained that it was only those specialists who intended to work as consultants on a permanent basis in the public sector who were registered by the General Medical Council. It was therefore not a prerequisite that the speciality be registered with the General Medical Council.

I shall first deal with the Act and its regulations before dealing with the policy of the first respondent.

[16] Section 24 provides for the registration of prescribed qualifications of doctors who quali fied from South African institutions.

"24. Qualifications prescribed for registration.-The Minister ma y on recommendation of the council. prescribe the qualifications obtained by virtue of examinations conducted by an accredited universit y, or other educational institution or examining authorit y in the Republic. which, when held singly or conjointly with any other qualification, shall entitle any holder thereof to registration in a registration category in terms of this Act if he or she has, before or in connection with or after acquisition of the qualification in question, complied with such conditions or requirements as ma y be prescribed." (my underlining)

" 24A. Community service. - Notwithstanding section 24, any person registering for the first time in a category of registration listed in the regulations made in terms of this Act shall perform remunerated community service in health care for a period of one year in terms of the regulations contemplated in of such service, be entitled to practice the profession."

The qualifications under this section are prescribed and they relate to qualifications obtained from an institution within the Republic.

Both counsel are in agreement that this route does not affect Dr Stevens. Para 95 p30617

[17] Registration of persons who holds foreign qualifications not prescribed for registration.

"25. Registration of persons who hold qualification not prescribed for registration.-( 1) The Minister may, after consultation with the council by regulation provide that any person who holds a qualification which the council may accept by virtue of the fact that such qualification, in the opinion of the council, indicates a satisfactory standard of professional education and training, may be registered in terms of this section in the applicable prescribed registration category, and thereupon the relevant professional board ma y in its discretion, but subject to any regulations and national health and international protocols which the Minister may make or be subject to register such person. (my underlining)

(2) A professional board may require a person who holds a qualification referred to in subsection (11 and who applies for registration in terms of this section, to pass to the satisfaction of the professional board, on a date and at a place determined by the professional board, on a date and at a place determined by the professional board, an evaluation contemplated in subsection 131 before persons appointed b y the professional board. for the purpose of determining whether such person possesses adequate professional knowledge. skill and competence and whether he or she is proficient in any of the official languages of the Republic....(my underlining)

(3A) (a) Despite section 24A, no person with a foreign qualification may be registered in the category independent practice unless he or she is a South African citizen or has attained permanent residence status in terms of the Immigration Act 2002 (Act No. 13 of 2002)." (my underlining)

Registration in terms of this section is related to qualifications which were not acquired within the Republic, and, which qualifications have not been prescribed by regulation. Registration is at the discretion of the professional board which has to satisfy itself that the applicant is possessed of the adequate 'professional knowledge, skill and competence.'

17.1 A person who holds a foreign qualification may be required to comply with certain requirements contained in the regulations in terms of section 25, Regulations GNR.101 of 6 February 2009 Regulation 2(2) provides:

" The registrar may register a foreign qualified person in the category public service 1n any of the professions registered under the Act if such a person holds a foreign qualification the education and training standard and the duration of study which is accepted by the council as equivalent to the education and training standard and duration of study of a similar qualification awarded by accredited South African educational institutions: Regulation 3 (3) provides:

" The Registrar may register a foreign qualified person in the category of independent practice in any of the professions registered under the Act to which independent practice applies if such a person has:

(a) Complied with the qualifications requirements for registration referred to in regulation 2(2);

(b) (1) complied with the requirements of section 25(3A) of the Act;

(ii) in the case of a foreign qualified South African citizen, performed community service in terms of section 24A of the Act in respect of a profession to which community service applies;

(c) Passed the applicable examination as determined by the board for registration in the category independent practice; and

(d) Complied with such other requirements as may be determined by the professional board concerned for registration in the category of independent practice;

[18] Registration and use of additional qualifications, registration of specialist ....

"35. Registration and use of additional qualification, registration of specialists, persons in subspecialities, professional categories and additional professional categories. -( 1) A person who desires to have a qualification registered, other than the qualification b y virtue of which he or she has in the first instance been registered or to be registered as a specialist or in a subspecia/ity, professional category or additional professional category recognized b y a professional board shall, upon pa yment of a prescribed fee and sub ject to the provisions of subsection (2). be entitled to registered as a specialist or in a professional category or additional professional category or to have such additional qualification entered in the register: (my underlining)

(1A) where a person fails in respect of any provision of a regulation made under section 61(1)( f) and applies to be registered as a specialist or in a professional category or an additional professional category in terms of this section, the relevant professional board may require him or her to pass to the satisfaction of the professional board, on a date and at a place determined by the professional board, an examination prescribed under subsection (1B) before examiners appointed by the professional board, for the purpose of determining whether his or her professional knowledge, skills and competence in the discipline of his or speciality or field of his or her professional category is sufficiently adequate to enable him or her to practise a a specialist or to be registered in that professional category or additional professional category;

(1B) The Minister may on the recommendation of the council, and ........

(2) Only such additional and specialist qualification, specialities and subspecialities, professional categories or additional professional categories as may be prescribed shall be registrable under this section."

18.1 Section 61(1)(f) of the Act provides.·

"Regulations,-( 1) The Minister may, after consultation with the council make regulations relating to-

(f) (I) the registration in terms of section 35 of the specialities or subspecialities or professional categories or additional professional categories of health professions;

(ii) the requirements to be satisfied, including the education and training to be obtained, the nature and the duration of the education and training to be undergone and the qualifications to be held by persons before any person may be registered as a specialist or in any subspeciality, professional category or additional professional category;

(iii) the circumstances under which any applicant for registration as a specialist shall be exempted from any such requirements;

(iv) conditions in respect of the practising of a specialist ....has been registered ....

18.2 Regulation GNR 590 29 June 2001 gives the following definitions: (18.2; 18.3; 18.4)

"general practitioner'' means a medical practitioner or dentist not registered as a specialist;"

"specialist" means a medical practitioner or a dentist who has been registered as a specialist in a speciality or related speciality and subspeciality (if any) recognized in terms of these Regulations and who confines his or her practice to such speciality or related specialities and subspecialities (if any);" "speciality" means one of the disciplines of medicine or dentistry recognized in regulation 2"

Regulation 2 lists the specialities recognized and prescribed in terms of section 35 (2) of the Act

18.3 Regulation 6 provides for the registration of a medical practitioner in the category independent practice (specialist)

"(1) A medical practioner who holds registration in the category independent practice (general practitioner) and who wishes to be registered in the category independent practice (specialist) in terms of the Act shall-

(a) shall submit proof to the board that she or she has obtained a specialist

qualification in the relevant speciality in medicine which is accredited by and the standard of which shall be acceptable to the board;

(b)........

(c).......... (d)......

(2) Apart from the requirements in subregulation ( 1) the following shall apply to the specialities listed

(a). . .

(c) In the case if the speciality Obstetrics and Gynaecology, education and training as referred to in paragraph (a), shall include a minimum of twelve months education and training in each of Obstetrics and Gynaecology in a teaching hospital.

18.4 Any person who holds a qualification as a medical practitioner or dentist not registered as a specialist , and any person who enjoys recognition as a specialist in any country except for South Africa;

" 8(1) (a) (I) may apply to the board for -

registration in the category independent practice (specialist); or

(ii) . registration in the category public service (specialist)

(2) Such foreign qualified medical practitioner or dentist who wishes to obtain registration in the category independent practice (specialist), may apply to the board for such registration only after having complied with all the requirements for registration in the category independent practice (general practitioner) as specified in the Regulations published in terms of section 25 of the Act and having registered as such

(3) Subsequent to having complied with the requirements referred to in subregulation (2), such medical practitioner or dentist shall submit documentary proof to the board-

(a) that he or she had obtained a specialist qualification in a speciality recognized in terms of regulation 2 and that that qualification was accredited or otherwise recognized by and the standard thereof acceptable to the registering or other appropriate authority in medicine or dentistry in the country concerned

(b) (c)..

(d) that the applicant had been registered as a medical practitioner or dentist with the relevant registering authority for

the full duration of his or her specialist education and training;

18.5 Regulations/Rules/8N 35 of 31 March 1999, Registration by Medical Practitioners of additional qualifications.

This regulation gives a list of additional qualifications which may be registered in terms of section 24 or accepted in terms of section 25 of the Act, and additional foreign qualifications. As I see it, this list does not mention any primary qualification in respect of any applicant who qualified in a South African institution or, in a foreign institution.

18.6 Section 35 provides first for the registration of an additional

qualification, a qualification other than the one already on the register; registration of specialities, or additional professional

categories etc. Form 21 is self explanatory, it requires information of the speciality or sub-speciality sought to be registered and information of a qualification already registered with the board, as I see it, registration of qualifications under sections 24 and 25 already on the register and as stated in section 2(a) and (b) of the regulations mentioned under 17.2 above. In Dr Stevens case there was no qualification already appearing on the register, however, his additional qualification as a member of the Royal College of the Royal College of Obstetricians and Gynaecologists was stated.

[19] Ms Steinberg argued that despite the fact that Dr Stevens had a prescribed speciality the first respondent was rerouting Dr Stevens to section 25 which catered for those who held qualifications which were not prescribed and that such application of the regulations was invalid. She contended that registrations under sections 25 and 35 were distinct and that the first respondent's interpretation of the regulations undermined the distinction between prescribed and not prescribed which the Act provided for. Mr Maenetje disagreed and contended that they served different purposes and I tend to agree with this submission. As I see it, sections 24 and 25 provide for instances where an applicant seeks registration for the first time and as required by section 17 of the Act. Section 24 is not applicable to Dr Stevens. We must ask the question, in order for him to qualify for registration in terms of section 35 what is required. Section 35 requires of a medical practitioners referred to in sections 24 and 25 to be placed on the register as a medical practitioner in 'independent practice (general practitioner) before he or she is allowed to register an additional qualification or speciality. Section 35 provides for the registration and use of an additional qualification other than that which is registered under sections 24 and 25; for registration of specialists, persons in sub-specialities, professional categories etc, this type of registration is also required by section 17 of the Act. It is first what is provided in sections 24 and 25 that is of importance in that they identify:

- qualifications obtained from South African institutions and those obtained from foreign institutions;

-which qualifications are prescribed and which are not prescribed;

-what further requirements over and above the qualifications sought to be registered must be complied with before registration as medical practitioners under the Act;

[20] Ms Steinberg argued that all that was required of Dr Stevens was to prove his first level qualification and of importance was that the second level of qualification that is, the additional qualification was recognized by the regulations. She compiled a table of compliance in her heads of argument, in which she stated that Dr Stevens had complied with Regulation 2(2) in that both his Bachelor of Medicine degree and specialization in Obstetrics and Gynaecology were recognized by the respondents because qualifications from the Royal College of General Practitioners and the Royal College of Obstetricians and Gynaecologists were recognized in the regulations to section 35 (Additional Qualifications Regulation). This would mean that section 25 and its regulations were not applicable to Dr Stevens. Having regard to the founding affidavit, the curriculum vitae and the certificates annexed to the founding affidavit Dr Stevens is not a Fellow of the Royal College of General Practitioners. What is recognized is his additional qualification as a member of the Royal College of Obstetricians and Gynaecologists.

[21] Before dealing with the regulations and policy and since I am required to interpret the Act, it is important first to establish

what Dr Stevens was considered to be in terms of the Act when he submitted his application to the First respondent. In July 2010 he completed two forms, Form 21 (Application for Registration Specialist I Subspecialist) and Form 19 (Application for Registration of an Additional Qualification). He listed Obstetrics and Gynaecology as

the speciality and additional qualification for registration. It was however not stated into which category he wished to be registered

for, either in the 'category independent practice (specialist) or public service (specialist) It was required in Form 21 that he mention the 'qualifications already registered with the board' and none were mentioned. This is in line with section 35 which provides for the registration of an additional qualification other than the one which has already been registered.

[22] The Act defines a medical practitioner and dentist as persons registered as such under the Act. Regulations GNR 590 of 29 June 2001 defines general practitioner as a medical practitioner not registered as a specialist. Dr Stevens speciality is registrable as an additional qualification of a medical practitioner in terms of Regulations/Rules/ BN 35 of 31 and his speciality is recognized and prescribed in terms of Regulations GNR 590. March 1999. We however know that when he so applied he had not been registered under the Act as a medical practitioner in South Africa. Although he is registered as a medical practitioner by the General Medical Council in the United Kingdom, his primary degree as a medical practitioner is not listed in the regulations as registrable or as a speciality.

[23] Before approaching the First respondent for registration Dr Stevens was given permanent residency in South Africa in February 2007 and he obtained his identity document during 2008. At the time he was still practicing as a specialist at the Whitting Hospital in the United Kingdom. This is seen from his curriculum vitae. In terms of Regulation 8 (1) (i), Dr Stevens, who enjoyed recognition as a specialist in the United Kingdom could register in the category 'independent practice (specialist). Regulation 8 (2) allowed him to apply only after complying with the requirements for registration 'in the category independent practice (general practitioner) as specified in terms of section 25 of the Act. This requirement endorses the stipulation in section 35 that registration in terms of this section is subject to the acquisition of a qualification already registered under the Act. Regulation 8 (3) requires documentary proof to the Board of the speciality recognized in terms of Regulation 2 of GNR 590 by the registering or appropriate authority in medicine in the country concerned.

[24] In response to an enquiry by the First respondent, Ms Anne Duncan replied:

" We are not able to verify any of the documents you have supplied for entry onto the specialist register without assessing a full application from the doctor. You mention that Dr Stevens was admitted as a member of the Royal College of Obstetricians and Gynaecologists on 28 May 2008. This membership does not mean Dr Stevens would have been eligible to gain entry onto the specialist register. We would have required documentary evidence of his speciality qualification, where and when this was obtained, and the start and end of his training. We would a/so have needed a completed application form for consideration before accepting his application for entry onto the specialist register. The specialist register was introduced on 1 January 2007.....all doctors taking up a post as a substantive, fixed term or honorary consultant in the national health service in the UK, are required to be on the Specialist Register."

We know that this response was not helpful to Dr Stevens because he never intended working in the National Health Service in the United Kingdom. The General Medical Council could not confirm that the membership of the Royal College of Obstetricians and Gynaecologists

entitled Dr Stevens to registration as a specialist without the a full assessment as to his education in that field when and where it was obtained and his training. Consequently it would be a futile exercise by the First respondent to insist on recognition from that body. What was now required and, Iwill deal with this when the policy is being considered, was for the First respondent to determine how to evaluate Dr Stevens given the fact that it was contended on his behalf that by listing his additional qualification and speciality in the regulations, it was assumed that the respondents have satisfied themselves that such additional qualification was registrable and that his speciality was recognized and prescribed. It was argued by Ms Steinberg that the recognition of the speciality and the acknowledgement of Dr Stevens permanent residence status in South Africa did not restrict his employment within the public sector.

Para 88.3 p 302 p305 para 92

Para 96 p 308

Para 97 p310

[25] According to Dr Lindique, Dr Stevens case had to be evaluated in respect of other requirements determined by the Board in terms of Regulation 3(d) read with section 25 of the Act and that was where the policy of November 2009 was also applied. It was argued by Ms Steinberg

16.3 Ms Steinberg argued that all that was required of Dr Stevens was to prove his first level qualification and of importance was that the second level of qualification that is the additional qualification was recognized by the regulations. She compiled a table of compliance in her heads of argument, in which she stated that Dr Stevens had complied with Regulation 2(2) in that both his Bachelor of Medicine degree and specialization in Obstetrics and Gynaecology were recognized by the respondents because qualifications from the Royal College of General Practitioners and the Royal College of Obstetricians and Gynaecologists were recognized in the regulations to section 35 (Additional Qualifications Regulation). This would mean that section 25 and its regulations were not applicable to Dr Stevens. Having regard to the founding affidavit, the curriculum vitae and the certificates annexed to the founding affidavit Dr Stevens is not a Fellow of the Royal College of General Practitioners. What is recognized is his additional qualification as a member of the Royal College of Obstetricians and Gynaecology.

ORDER:

1. The decision of the First and Second Respondent to refuse the applicant's application is reviewed and set aside;

2. The Applicant is ordered to place before the First and Second Respondents comprehensive information of his education, training and practice as a medical practitioner at the hospitals on the list attached to his application form 21 dating August 1997 to May 2009;

3. The Applicant is ordered to place before the First and Second Respondents comprehensive information of his education, training and practice in Obstetrics and Gynaecology and comprehensive information on his education, training and practice as a specialist in the United Kingdom;

4. The Applicant is ordered to complete a fresh application containing the relevant information in 2 and 3 above and to submit such application and information to the First and Second Respondents within 60 days of this order;

5. The First and Second Respondents are ordered to convene a meeting to re-consider the Applicant's application in terms of the following:

The Health Professions Act 56 of 1974, and applicable regulations and the adopted policy framework within 30 days of its receipt of the application;

6. It is ordered that each party pay its own costs in this application.

_____________________

TLHAPI VV

(JUDGE OF THE HIGH COURT)

ATTORNEYS FOR THE APPLICANT

: WERKSMANS ATT

C/O EDELSTEIN­ BOSMAN INC

ATTORNEYS FOR THE 1st & 2nd RESPONDENTS : GELDENHUYS MALATJI

ATTORNEYS FOR THE 3rd RESPONDENTS : THE STATE ATT