Tebeila Institute of Leadership Education, Government and Training v Limpopo College of Nursing and Another (1173/2014) [2014] ZALMPPHC 1 (27 August 2014)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, POLOKWANE

(functioning as Limpopo Local Division, POLOKWANE)

CASE NO: 1173/2014

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED

DATE: 8/9/2014

SIGNATURE:

In the matter between:

TEBEILA INSTITUTE OF LEADERSHIP

APPLICANT

EDUCATION, GOVERNMENT AND TRAINING

And

LIMPOPO COLLEGE OF NURSING

1ST RESPONDENT

MEMBER OF THE EXECUTIVE COUNCIL,

DEPARTMENT OF HEALTH, LIMPOPO PROVINCE 2ND RESPONDENT

JUDGMENT

MAKGOBA,J

[1] At the heart of this application is the question of the constitutionality and validity of the First Respondent's admission policy which excludes from admission those applicants who obtained their matriculation certificates more than three years ago.

[2] The Applicant brought an application against the Respondents for an order in the following terms:

2.1. That the admission policy of the First Respondent which requires that the applicants for admission to study at the First Respondent "must have obtained a senior certificate or national senior certificate not more than three years ago" be declared unconstitutional and invalid.

2.2. That this Court issue an order extending the closing date of the applications for admission to study at the First Respondent to 26 September 2014 in order to give an opportunity to those who have been excluded from applying to submit their applications for admission at the First Respondent.

2.3. Ordering the First Respondent to pay the costs of the application and the Second Respondent to pay costs only in the event of opposing this application.

[3] The application is opposed by the First and Second Respondents.

[4] As this matter was brought on urgent basis, on the 27 August 2014 and upon hearing arguments by the parties I gave an order in the following terms and indicated that my reasons for judgment would follow in due course:

4.1. The admission policy of the First Respondent which requires that applicants for admission to study at the First Respondent must have obtained a Senior Certificate or National Senior Certificate not more than three years ago in order to be admitted to study at the First Respondent is hereby declared unconstitutional and invalid.

4.2. Each party shall pay its own costs.

[5] What follows are my reasons for judgment for the order I granted on 27 August 2014.

[6] The Applicant is Tebeila Institute of Leadership, Education, Governance and Training ("TILEGT") a non-profit voluntary organization with its offices at Ga-Nchabeleng, Sekhukhune District, Limpopo Province.

TILEGT is actively involved in organizing career exhibitions in the Community in order to ensure that learners become aware of the

opportunities that may be available for them post matric. It has interest in ensuring access to further education by children from

poor communities throughout South Africa. This is, according to the applicant, what persuaded the Applicant to bring this application to legally challenge the exclusionary policy of the Respondents that affects the training of nurses in Limpopo Province.

[7] In the circumstances the Applicant has locas standi to bring this application as provided for in terms of section 38 (c) and (d) of the Constitution of the Republic of South Africa, 1996 in that it acts as (1) a member of or in the interest of, a group or class of persons, and (2) in the public interest.

[8] The First Respondent is the Limpopo College of Nursing, an educational and/or training instutition established in terms of Section 2 of the Northern Province College of Nursing Act, 1996 (Act No 3 of 1996) and situated at Polokwane. The College comprises of three campuses namely Giyani, Thohoyandou and Sovenga.

[9] In terms of Section 6 of the Act, the objects of the College shall be-

(a) To assist in the promotion of the nursing standards in the Province;

(b) To control and exercise authority in respect of all matters affecting the education and training of nurses;

(c) To promote liaison of the education and training of nurses in the Province and elsewhere in other Provinces; and

(d) To promote and maintain the standards of such education and training pursued by the campuses.

[10] The Second Respondent has been cited herein in so far as it may have an interest in the matter in as much as it is the organ of State responsible for the administration of health services as well as the training and employment of nurses in Limpopo Province.

[11] It is appropriate to state, from the onset, that although this application is opposed and the Respondents have filed opposing affidavits, nothing has come out of such opposing papers.

Voluminous annexures numbering nine in all and making a total of hundred pages have been annexed to the Respondents' affidavit. Such annexures contain mostly irrelevant issues not related to the case before me. Even the contents of the opposing affidavit do not deal with or traverse the allegations in the applicant's founding affidavit. Suffice it to say that the respondents' opposing papers have not been helpful to me in coming to a decision in this matter.

[12] Coming to the crux of the matter before me, I refer to the contents of a document (which forms part of the papers in this matter) entitled:

LIMPOPO COLLEGE OF NURSING POLICY GUIDELINES ON ADMISSION REQUIREMENTS

(STUDENT ADMINISTRATION)

This document sets out the admission requirements policy guidelines of the First Respondent as at October 2013.

Paragraph 1 of the document sets out the General Admission Requirements and in particular paragraph 1.5 thereof provides as follows:

"Applicants must have obtained a Senior Certificate not more than three years ago, excluding Enrolled Nurse Auxiliary and Enrolled Nurse Candidates"

Furthermore another document which appears to be the First Respondent's "Prospectus" provides the following under the heading: IMPORTANT NOTICES FOR ALL APPLICANTS-

"11. Applicants must have obtained a senior certificate or national senior certificate not more than three years ago"

[13] It can be deducted from the aforementioned documents that it is clearly the admission policy of the First Respondent that all applicants who have obtained their matriculation pass more than three years ago are disqualified from application for admission at the First Respondent. For this reason the Applicant has brought this application before this court to declare the said policy unconstitutional and invalid.

[14] As already stated above, the Respondent's opposing papers have not been helpful in this matter. During argument I invited Counsel for the Respondents to provide the rationale for such policy and the justification for the policy, if any. I posed this question several times to Counsel but I have not been favoured with satisfactory answer. At the end of the day I have only the version of the Applicant to consider in coming to a decision in this matter.

[15] The issue for determination in this matter is the constitutionality of the First Respondent's admission policy as outlined above.

[16] The Applicant contends that the First Respondent's admission policy is inconsistent with the equality clause in Section 9 of the Constitution and further that it has an impact on the right to further education enshrined in section 29 (1) (b) of the Constitution.

[17] Section 9 of the Constitution provides:

"(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair"

[18] In terms of section 9 (1) everyone is equal before the law and has the right to equal protection and benefit of the Law. Section 9 (3) and (5) prohibits the State from unfairly discriminating anyone directly or indirectly on one or more listed grounds. The listed grounds are not exhaustive. The use of the word "including" before making mention of the grounds of discrimination is an indication that other grounds of discrimination can be added to the listed grounds of discrimination as contained in section 9 (3).

[19] The admission policy of the First Respondent excludes other applicants on the ground that they obtained their matriculation certificate more than three years ago. In my view this is a discrimination of a particular group of persons or class of persons. Therefore the State unjustifiably fails to protect those who obtained their matric certificates more than three years ago and also deny them equal benefits afforded to those who obtained their matric certificates less than three years ago.

A differentiation between applicants for admission to study at the First Respondent exists despite the fact that all applicants meet the minimum requirements for admission to the First Respondent.

This discrimination is unfair and unjustifiable since it is only based on the applicants belonging to a certain group or class of persons.

See: Larbi-Odam and others v. Member of the Executive Council for Education

(North-West Province) and another 1997 (12) BCLR 1655 (cc)

[20] Section 7 (2) of the Constitution provides that the State must respect, protect, promote and fulfil the rights in the Bill of Rights.

The Applicant's Counsel submitted that by giving effect to its admission policy of excluding other applicants on the basis of the years on which they obtained their matric certificates, the First Respondent fails to respect, protect and promote the right to education. I agree.

[21] Section 29 (1) (b) of the Constitution provides:

"Everyone has the right-(b) to further education, which the State, through reasonable measures, must make progressively available and accessible"

The South African Constitutional order jealousy protects the right of an individual to basic education and the right to further education. The admission policy of the First Respondent clearly and unjustifiably excludes eligible people from acquiring further education they are entitled to in terms of section 29 (1) (b) of the Constitution.

[22] It may be necessary to differentiate between people and groups of people in society by classification in order for the State to allocate rights, duties, immunities, privileges, benefits and to provide efficient delivery of social services. However, those classifications must satisfy the constitutional requirement of reasonableness.

See: Khosa and others v. Minister of Social Development and others, Mahlaule and another v. Minister of Social Development [2004] ZACC 11; 2004 (6) SA 505 (cc) at para [49]

[23] In the present case the First Respondent differentiates between those who obtained their matriculation certificates more than three years ago and those who obtained theirs less than three years ago. In my view for this differentiation to pass Constitutional muster it must not be arbitrary or irrational. Nor must it manifest a naked preference. There must be a rational connection between the First Respondent's differentiation and the legitimate government purpose it is designed to achieve. Needless to say that in casu the Respondents dismally failed to bring forth any rationale for the admission policy or the purpose for such policy in their opposing

papers and in oral argument by their counsel.

[24] The Court takes judicial notice of the fact that there is a vast shortage of nurses in South Africa. The admission policy of the Respondent which continues to exclude certain members of the community to pursue a career in nursing cannot be regarded as reasonable moreso that they are being excluded merely because they obtained their matric certificates more than three years ago.

[25] It is trite that the rights in the Bill of Rights may be limited on justifiable and reasonable grounds.

Section 36 of the Constitution provides:

(1) "The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights".

[26] On the papers and in argument the First Respondent's Counsel did not establish any justification and reasonableness of the limitation of the rights of the excluded applicants to acquire further education. Furthermore the purpose of the limitation of the right to further education by the exclusionary admission policy of the First Respondent has not been established.

Accordingly the discrimination practised by the First Respondent is ruled to be unfair discrimination.

[27] Accordingly the Applicant has made out a proper case for the order I granted on the 27 August 2014.

[28] The Court declined to accede. to the Applicant's request that the closing date of the 29 August 2014 be extended to 26 September 2014 to enable the previously excluded applicants to submit their applications. In my view that would have amounted to undue interference with the administrative machinery of the First Respondents and disturbance with their academic programme already in place.

[29] The case before me does not warrant an award of costs against the unsuccessful party in that the issues raised in this matter are of a constitutional nature. Hence I ordered that each party is to pay its own costs.

EM MAKGOBA

JUDGE OF THE HIGH COURT

Heard on: 27 August 2014

For Applicant : Mr SS Tebeile

Instructed by : Obi Matlala Attorneys

For Respondents : Ms R. Mudau

Instructed by : State Attorney

GAUTENG DIVISION, PRETORIA

(Functioning as LIMPOPO DIVISION, POLOKWANE)

DATE: 27 AUGUST 2014

BEFORE THE HONOURABLE JUDGE MAKGOBA

CIn the matter between:

TEBEILA INSTITUTE OF LEADERSHIP,

APPLICANT

EDUCATION, GOVERNANCE, AND TRAlNING

LIMPOPO COLLEGE OF NURSING

1ST RESPONDENT

MEMBER OF THE EXECUTIVE COUNCIL

COURT ORDER

HAVING heard counsel(s) for the party(ies) and having read the documents filed of record and considered the matter:

IT IS ORDER THAT:

1. The admission policy of the First Respondent which requires that applicants for admission to study at the First Respondent must have obtained a senior certificate or National senior certificate not more than three years ago in order to be admitted to study at the First Respondent is hereby declared unconstitutional and invalid.