Lunghile Nursing School v The Chairperson of the Appeal Committee of SANC and Others (56892/21) [2022] ZAGPPHC 466 (20 June 2022)

REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION PRETORIA

CASE NO: 56892/21 DATE SIGNATURE In the matter between: LUNGHILE NURSING SCHOOL AND

APPLICANT THE CHAIRPERSON OF THE APPEAL COMMITTEE OF SANC 1st RESPONDENT THE SOUTH AFRICAN NURSING COUNCIL THE REGISTRAR: SANC 2ND RESPONDENT 3RD RESPONDENT

Judgment

CEYLON ,AJ A. INTRODUCTION:

[1] This application consists of two parts. In part A, the Applicant prays for an order in the following terms: 1. that this matter be heard on an urgent basis and the normal rules relating to forms and services be dispensed with; 2. that the orders of the Appeal Committee contained in sub-paragraphs 1.1, 1.2 and 1.3 of the Ruling by the Appeal Committee be suspended pending the final determination of Part B of this application; 3. that the 2nd and 3rd Respondents be interdicted from implementing the aforesaid orders pending the final determination of Part B of this application; 4. that the 2nd and 3rd Respondents be ordered to release the results of all the students which are currently withheld by the 3rd Respondent; 5. that cost be awarded against any Respondent who opposes the application.

[2] The relief sought by the Applicant in Part Bis irrelevant for purposes of this application. It will therefore not be dealt with at this stage. B. FACTUAL BACKGROUND/MATRIX:

[3] Around July 2018 the Applicant sent a list of student names to the 2nd Respondent (SANC) for registration as the 2nd intake for 2018, with enclosed proof of payment of registration fees.

[4] In August 2018, the 2nd Respondent returned the registration forms in relation to the said students ("the June 2018 group") and advised that a resolution has been taken that the Applicant have been barred from taking further students in. Around February 2019 the Applicant lodged an internal appeal against this decision in terms of section 57 of the Nursing Act.

[5] In May 2019, after the appeal was not heard, due hereto that no appeal committee was appointed, the Applicant approached this Court and an Order to compel was granted. On application for leave to appeal the latter decision, the latter application was dismissed, after which the 2nd Respondent petitioned the SCA.

[6] In October 2019, the Applicant submitted to the 2nd Respondent the relevant records in compliance with the order of Sardiwalla J, whereafter the 2nd Respondent registered seventy-one (71) students of the June 2018 group, except for 2 of these students, who by then went to other schools, to write the November 2019 examinations.

[7] In November 2019, the Applicant was instructed to complete and submit a certain form/template which related to the June 2018 group.

[8] Around August 2020, the 2nd Respondent withdrew the SCA appeal and tendered the wasted costs.

[9] On 15th July 2020 the Applicant received correspondence form the 2nd Respondent, to the effect that, with regards to the information it received by way of the said form/template, submitted by the Applicant and clinical facilities, that the information received was falsified, and that the 2nd Respondent's Exco has taken 2 resolutions: (i) that the June 2018 group who wrote their examinations in November 2019 have to repeat one thousand (1000) clinical hours and that the clinical facilities used for clinical placement should keep proper records of the process; (ii) that the Applicant make written submissions within thirty (30) days on why it should not be de-accredited, due to the fact that it had submitted falsified information and there was no proof of proper clinical education and training.

[10] On 13 August 2020, the Applicant directed correspondence to the 2nd Respondent requesting an opportunity to study the discrepancies and remedy the issue.

[11] Around October 2020, the 2nd Respondent advised the Applicant by letter that it (2nd Respondent) had restored the de-accredit it as a nursing education institution due to non submission of the reasons why it should not be de-accredited. The Applicant, through its attorneys, requested an urgent meeting with the 2nd Respondent to discuss the issues, whereupon the 2nd Respondent's attorney requested clarity on the issues to be discussed at such meeting.

[12] On 03 November 2020, the Applicant's attorneys forwarded a letter to the 2nd Respondent's attorneys seeking an undertaking, inter alia, on the following:

(i) that the de-accreditation be suspended with immediate effect, pending the filing of an internal appeal; and (ii) that the trainee nurses be allowed to write their exams on 18th and 20th November 2020. [13) The Applicant then brought an urgent application (under case no: 57264/20) in this Court, and an Order was granted on 16 November 2020 (per Mokose J) in terms of which the students were permitted to write the exams and that the decision to de-accredit was suspended pending that the internal appeal process be lodged within thirty (30) days of this said Order.

[14] On 18 November 2020 the 2nd Respondent disallowed twenty-four (24) of the ninety four (94) students of the June 2018 group from writing the examinations. The Applicant then again approached this Court on an urgent basis, and was ordered by Harms J to allow the students to write the exams on 20 November 2020 and also that a special examination be convened for those who missed the exams of 18 November 2020. [15) In January 2021 the Applicant released some of the results of the students who wrote the October 2020 exams, but not the results of the June 2018 group who wrote exams on the same dates. Further, the 2nd Respondent released results of certain students who wrote the November 2020 exams, but excluded the results of the students of the June 2018 group who wrote as a result of the order of Mokose J. [16) · In December 2020 the Applicant was allowed an extension to file their internal appeal by 15 January 2020, but a further extension was refused by the 3rd Respondent. [17) The internal·appeal was lodged on 23 February 2021 and an appeal committee was appointed April 2021. Around April 2021 the 2nd Respondent advised the Applicant that its papers for the internal appeal was submitted out of time. [18) The Applicant again approached this Court on an urgent basis, seeking to set aside the decision to implement the appealed decision, but this application was dismissed due to a lack of urgency by Mokose J. [19) The appeal was heard on 28 September 2021 and the appeal committee delivered its report (decision) on 08 November 2021.

[20] On 11 November 2021, the Applicant approached this Court, again on an urgent basis, and it was removed from the Roll of 22 November 2021, as it was not compliant with the directives and was directed to the Judge President's office for a special allocation (per Baloyi-Mere AJ).

(21] The Applicant is now challenging the decision of the 1st Respondent (of 08 November 2021) in this current application, also on an ·urgent basis. C. ISSUES TO BE DETERMINED (22] It is common cause between the parties that the following are the issues for determination by this Court: (a) urgency in respect of the interim interdict; (b) whether the Applicant met the requirements for an interim interdict and a final interdict (in respect of prayer 4 which relate to the relea.se of the results of the students). (23] In the Applicant's papers as well as the hearing, the Applicant's attorneys persisted that the matter is urgent and it should therefore proceeded on a urgent basis before this Court on the hearing date [refer to para 5, Applicant's new Heads of Argument, on pg 046-6 of Caselines]. The 2nd and 3rd Respondent's opposed the urgency of the application and fully sets out their grounds of opposition in the Heads of Argument under the heading "No urgency", from paragraph 3 onwards, and also in their Answering affidavit, under "No Urgency", pg 030-6 and further.

[24] This Court entertained the said urgent application and dismissed ii with costs, agreeing largely with the grounds raised by the 2nd and 3rd Respondents. The Court then proceeded with the hearing on the merits on the same date. D. THE APPLICANT'S CONTENTIONS:

[25] The Applicant contended that, in order to succeed with the relief of an interim interdict, it must show the following: (a) a prima facie right though open to some doubt; (b) a reasonable apprehension of irreparable harm or imminent harm; (c) the balance of convenience; and (d) no alternative remedy.

[26] With regards to the prima facie right, the Applicant made the following submissions:

- that the de-accreditation directly threatens the existence and livelihood of the Applicant and its employees; the Applicant's constitutional rights to do a trade of its choice and the Applicant's student's rights to education is threatened and they have all been subjected to serious psychological and financial stress as a result hereof. The Applicant submitted that ii has prospects of success in relation to the review application contemplated in part B of their application.

[27] With regard to Reasonable apprehension of harm, the Applicant submitted as .follows: - the Applicant will suffer complete financial ruin of the school and its asset base, since some of the assets are subject to financial obligations. - the school, having built its brand over many years, locally and internationally, will suffer serious reputational damage which may not be restored again. - the school will loose qualified staff members who will leave with institutional memory and experience. - students whose results have been withheld are suffering from various problems, including psychological stress, loss of job opportunities and financial ruin. - the above indicate serious harm to the school and its students and the school may not be able to recover by the time the reviews is heard.

[28] In terms of the balance of convenience the following submissions were made: - that the balance of convenience favour the Applicant; - the Appeals Committee gave contradictory decisions and refused to adhere to the audi alteram partem rule; - the 2nd and 3rd Respondents will not suffer any prejudice if the interim interdict is g~anted whereas the Applicant and its students will suffer great and irreparable harm; - it is important that the legislative scheme of the Nursing Act and its Regulations be tested for compliance with the Constitution and the review will benefit all stakeholders, and bring certainty to the profession and the rule of law if the Constitution is complied with in practice.

[29] With regard to the requirement of no alternative remedy, the Applicant's contentions were the following: - all internal remedies available to the Applicant have been exhausted;

- the review is the only available, legal remedy available to the Applicant and its students in the circumstances.

[30] At the hearing, Mr Maake for the Applicant, also submitted as follows: - prima facie right: - that the Appeal Committee did not comply with the provisions of the Court Orders of Sardiwala and Mokose JJ. - the Chairperson of the Appeals Committee was biased in favour of the Respondents. He relied on Sasson v Hugo. - the Appeals Committee did not provide reasons for its decision. the Applicant was not advised or warned of the inspection in loco by the Respondents and their officials. - the recommendation made by the Committee did not refer to any de-accreditation. - the Applicant did not receive a fair appeal process in terms of the requirements set out in the Sasson decision, supra. - with regards to the decision to de-accredit the Applicant (letter of 15 July 2020) - there is no basis for this decision in the Committee's Report. The de-accreditation is a punitive measure, not a corrective one. - with regards to the contention by the Respondents that this appeal was a wide one, this is not correct. The process of appeals is determined by the chairperson/presiding officer of the Committee, not by anyone else or the parties. - regarding harm/apprehension of harm: - the result of ninety-seven (97) students are still being withheld by the Applicant, and this is an infringement of their Constitutional rights. - the Applicant as a school have been in existence for over 20 years with no problems or issues. Even the Report of the Committee does not mention any previous harm, difficulties or trouble to anyone by the Applicant. - the Respondents does not suffer any harm by its conduct, only the Applicant and its students. - the effects of Covid 19 impacted negatively: nurses were needed to assist in the treatment of Covid patients and the Respondents prevented them from doing so. Most of the students are from impoverished communities and sponsored by their employers and government to get training at the Applicant's school, and are now frustrated by the de-accreditation. - there is definite prejudice suffered by the Applicant and its students. - balance of convenience:

a mixture of factors were raised, including the facts of this case, the conduct of the Appeals Committee and so on. These factors indicate that balance of convenience favours the Applicant. - alternative remedy: the Applicant lodged the appeal, which was finalised by the Appeals Committee. There is no other remedy available. The Court is the only remedy available to the Applicant. - The Applicant submits that costs should follow the result, but requested costs de bonis propriis against the Chairperson of the Appeals Committee and normal costs against the other Respondents.

[31] In his reply at the hearing Mr Maake made the following submissions: - there is no training and education provided by the Applicant since the Order of Mokose J. The school is currently deserted. - the Act does not state that the appeal is a wide process (Section 57 (5)], and to do so is not a correct interpretation thereof. Section 57 (6) states that the Chairperson must determine the process and communicate this to the parties; it is therefore not a wide process, but a strict one. - students are not a party to the proceedings and the Applicant has no locus standi to act on their behalf: this is an incorrect viewpoint. In terms of Section 28 or 29 of the Constitution, any party can act on behalf of another. Even the judgments of Sadiwala and Mokose JJ had no issues with this representation. - courts should be slow to interfere with statutory/administrative powers: this is not a correct interpretation. The courts may interfere in certain circumstances. - unfair procedure followed: adverse action was taken, decision made and only thereafter allowed Applicant to request reasons. This is not fair process. Respondents had statutory obligations to follow fair processes [Sasson decision, supra]. - audi alteram partem rule: it must be applied in all stages of the investigation and process, which was not done throughout the process. - court interference with Regulations: court needs to make a pronouncement on the Regulations as the validity of the Regulations are being challenged. - costs: if the Order is granted, but not prayers 4,5 and 6, then the Applicant will return to Court for relief. It will be in the interest of justice for those prayers also to be granted. - Applicant made out proper case and the Orders should be granted.

E. THE RESPONDENT'S CONTENTIONS: [32] - prima facie right: The Respondents submitted that the Applicant failed to show a prima facie right to provide training and education to nursing students for the following reasons: (i) the Applicant must show a legal right, which is being infringed or which ii apprehends will be infringed, and if ii fails to do so, its application must fail - relying on CB Prest: The Law & Practice of Interdicts at pg 52; Coolair Ventilator Co (SA) (Pty) Ltd v Liebenberg 1976

(1) SA 686 (W). (ii) the Applicant seeks to protect the rights to train nursing students, which right is strictly regulated by the Act and Regulations for good reasons. Nurses do an extremely important job that requires knowledge, experience and integrity, as they work with the lives of people, wide powers and responsibilities have therefore been given to the Nursing Council in the Act and the promulgated Regulations in which the details of the requirements for training of nurses are outlined. The right in question has therefor been limited for very good reasons. (iii) when complaints of inadequate training provided are received, the Council, as watchdog over the quality of training and education of nurses, is enjoined by the Act and Regulations to investigate. This is what the Council did in terms of section 4 (2)(k) of the Act, upon receipt the information provided by the Applicant in the template provided and the comparison ii made with information received from the clinical facilities, and, it appeared that the information provided was falsified and that the evidence of clinical training was totally inadequate. (iv) in order to be entitled to the right to train nurses, the Applicant must have evidence of quality control mechanisms over the clinical education and training of student nurses as required by Regulation 2(2)(d) of R.173. The evidence provided in the template by the Applicant regarding the mechanisms ii utilised over the clinical education and training was falsified and indicated that some students never attended any clinical training. (v) the Applicant failed to show that the allegations of dishonesty and incompetence, which are probably the most serious allegations the Applicant could face, are not true, despite all the information available to it. The Applicant therefor failed to comply with Regulation 2(2)(d) of R.173, which is a requirement for accreditation. - irreparable harm/prejudice: