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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO: 051/2004

PARTIES: F MALEKA

and

THE HEALTH PROFESSIONS COUNCIL

OF SA & ANOTHER

REFERENCE NUMBERS:

• Registrar: 1291/03

DATE HEARD: 15 OCTOBER 2004

DATE DELIVERED: 28 OCTOBER 2004

JUDGE(S): JONES J

LEGAL REPRESENTATIVES –

Appearances:

• for the State/Applicant(s)Appellant(s): EAS FORD SC

• for the accused/respondent(s): NH MAENETJE

Instructing attorneys:

• Applicant(s)/Appellant(s): WHEELDON RUSHMERE & COLE

• Respondent(s): NEVILLE BORMAN & BOTHA

CASE INFORMATION –

• Nature of proceedings: Judicial review of the removal of an entry in the register kept by the Health Council – register in the category of independent practice (general practitioners) – whether the court of the situs of the register (TPD) has exclusive jurisdiction – whether correction of an entry made as a result of a computer error by removing the entry to the register in the category publick service (general practitioners), which confers a more restricted right to practice, is administrative action within the meeting of the Promotion of Administrative Justice Act No 3 of 2000.

Reportable

In the High Court of South Africa

(Eastern Cape Division) Case No: 1291/03

Delivered:

In the matter between

FRANCIS MALEKA Applicant

and

THE HEALTH PROFESSIONS COUNCIL

OF SOUTH AFRICA 1^st Respondent

MEMBER OF EXECUTIVE COUNCIL FOR HEALTH FOR

THE DEPARTMENT OF HEALTH OF THE EASTERN

CAPE PROVINCE 2^nd Respondent

SUMMARY:. Judicial review of the removal of an entry in the register kept by the Health Professions Council – register in the category of independent practice (general practitioners) – whether the court of the situs of the register (TPD) has exclusive jurisdiction – whether correction of an entry made as a result of a computer error by removing the entry to the register in the category public service (general practitioners), which confers a more restricted right to practice, is administrative action within the meaning of the Promotion of Administrative Justice Act No 3 of 2000.

JUDGMENT

JONES J:

[1] The applicant describes himself as a medical practitioner who presently resides a 5 Wapadsberg Road, Queenstown, Province of the Eastern Cape, South Africa. He was formerly employed by the Ciskeian Department of Health, and thereafter by the Umtata City Council. He then purchased a medical practice in Queenstown and practiced there as a general practitioner in independent private practice. He had been issued with cards indicating that he was a registered medical practitioner in the category independent practice (general practitioner) for the periods 1 January 2001 to 31 March 2002 and 1 January 2002 to 31 March 2003, signed by the registrar and the assistant registrar of the Medical and Dental Professions Board, one of the professional boards of the Health Professions Board which is the first respondent herein. He was also in possession of a certificate of status issued on 9 May 2002 and signed by the registrar of the Medical and Dental Professions Board, which certifies that he is registered as a medical practitioner in the category independent practice – general practitioner (15 September 1995), that he is not disqualified from practising his profession, and that no steps relating to professional conduct are pending against him.

[2] On 15 November 2002 the registrar addressed a letter to him which contained the following notification:

‘You were registered in the category Independent Practice (General Practitioner) by error as a result of a faulty IT-system action.

In view of the above and the letter dated 11 August 1999, a copy of which is attached, I have to advise you that your erroneous registration is cancelled with immediate effect. Your registration in the category Public Service (General Practice) is re-activated with effect from the date hereof.’

The letter of 11 August 1999 related to the extension of his previous registration as public service general practitioner which was re-activated. The applicant did not receive it. It pre-dated the issue of the practice cards.

[3] It is common cause that the applicant was given no prior notice of the intention to cancel his registration and to re-register him as a public service general practitioner, and that he was given no hearing before this was done. He now seeks to review and set aside that decision on the ground that it was unfair administrative action in terms of the Promotion of Administrative Justice Act No 3 of 2000.

[4] The first respondent resists this relief. It does so on the basis that this court has no jurisdiction, and that the Promotion of Administrative Justice Act does not apply because the decision to alter the register was merely a correction of a computer error, and did not in the circumstances amount to administrative action in terms of the Act. No relief was sought against the second respondent and he abides the decision of the court.

[5] The applicant has no South African qualifications. He was awarded the degrees of MB ChB by the Makerere University in Uganda in 1990. In 1992 he obtained a further qualification – the degree of Master of Public Health – at Leeds University in the United Kingdom. In 1992 he came to South Africa to seek employment. He was offered two positions. The first was with the Transkei Health Services, subject to his registration with the Transkeian Medical and Dental Council. He obtained the necessary registration in order to place him in a position to accept this offer. It appears to be common cause that the entry of his name on the Transkei register then entitled him to practice as a general practitioner in Transkei without any restrictions. Once on the register, he could have gone into private practice as a general practitioner if he had chosen. He was also offered a position in Ciskei and also had his name placed on the Ciskeian register of general practitioners. This registration was restricted to practice in the public service in Ciskei. The applicant elected to accept the Ciskeian post. He was still so employed, and presumably still on both registers, in 1994 when the then homeland states were re-incorporated as part of the Rebublic of South Africa. The re-incorporation process involved registering Ciskeian and Transkeian medical practitioners in South Africa. Because of his de facto employment in Ciskei under restricted registration his name was placed in the South African register for public service practitioners, which required renewal after 3 years, instead of in the register for independent practitioners (general practice) in terms of his registration with the Transkei Medical and Dental Council. In 1996 his restricted registration was renewed for a further 3 years. On 1 June 1997 he took up employment as a medical officer of health with the Umtata Municipality (which was formerly part of the Transkeian homeland). During 1996 he made attempts to become registered without restriction on the strength of his Transkeian registration. He argued that his Ciskeian registration had been used, probably in error and to his disadvantage, because that is where he was employed in 1994 when the changes were made. But he feared that he might have been de-registered in Transkei because he had not kept up his payments. He made his argument in numerous telephone conversations with various officials employed by the first respondent during the period 1996 to 1999. The further renewal of his current registration again became imminent during mid-1999. He wrote letters of application for renewal to the first respondent on 31 May 1999 and 29 June 1999 and he also he expressly raised the question of his Transkeian registration. Thus the letter of 29 June 1999 concluded with the following request: ‘. . . I did have a full Transkeian registration which I am now told would have earned me a full HPCSA [Health Professions Council of South Africa] registration. Can this now be done?’ The first respondent’s reply, dated 28 July, raised certain matters which had be to attended to for renewal of the current registration and ended with the following undertaking: ‘Regarding your registration with the Transkei Medical Council, if your name did appear on the register, which Council received, your application will receive attention’. The council renewed the existing registration, but it would seem from the contents of the applicant’s file that it did not investigate the Transkei register. It did not take up the matter of the Transkeian registration further with applicant in correspondence. The next thing that happened was that the first respondent sent the applicant the cards showing he had the right to practice as a private practitioner, which is what he had asked for. He assumed that his application for full registration had been granted. He telephoned the first respondent’s office and was given confirmation that his name was on the register of independent practitioners. In due course he applied for and was given the certificate of status annexed to the papers. As a result he decided to leave the public service, to buy a medical practice in Queenstown, and to go into private practice. He continued in private practice until the end of January 2003 when he was made aware of the contents of the letter of 15 November 2002 advising him of the cancellation of his registration as a private practitioner. He had not received this letter in the ordinary course because it had been sent to his Umtata address.

[6] I do not believe that any of the above facts are properly in dispute. They emerge from all the affidavits and from the correspondence and contents of the applicant’s file which was produced as the first respondent’s record of the proceedings and which, in turn, are confirmed in the affidavits. The facts which are not specifically admitted cannot realistically be contradicted. There is nevertheless a difficulty about the facts. Some of the allegations made by the first respondent in its opposing papers are based upon a misunderstanding of the applicant’s case in general and also a misunderstanding of specific facts which he alleges in his papers, which caused the first respondent to draw inferences about the applicant’s case that are not justified by the facts and that the applicant finds objectionable. They have led to an application to strike out, in which the objectionable passages in the record are specified. The general tenor of these passages is the allegation that the applicant has known all along that he was not entitled to be on the register of private practitioners, that he is seeking to exploit what he knows must be a mistake, and that he is acting mala fide in bringing this application. These allegations are not allegations of fact and when the applicant denies them, they do not produce a dispute of fact. They are inferences drawn by the first respondent’s deponents which are based upon a misinterpretation of the facts and hence should not have been drawn. Because they are inferences they are inadmissible opinion which can have no bearing on the outcome of this application. I do not believe, however, that it is necessary to strike them out. This is because they cause no prejudice in the conduct of the application or, since they must be ignored, in the process of its determination. As it is, their presence in the papers explains the deponent’s attitude to the application and the papers would perhaps be incomplete and less intelligible without them.

[7] The most probable inference from the known facts is that when the applicant received the first card showing that he had been registered as a private practitioner he reasonably and bona fide believed that the first respondent had accepted his application to base his registration on his previous Transkei registration, his own doubts based upon his failure to make payments notwithstanding. It was argued before me that non-payment would have been insufficient for deregistration without a decision by the board, and that his previous Transkei registration was indeed proper justification for an unrestricted registration. But I do not have to consider these arguments for present purposes. The facts show as a matter of probability that the applicant reasonably and bona fide believed that he could now regulate his future on the basis that he could practice as a private practitioner, which he did by entering private practice. This in turn gave him a legitimate expectation that he would be given notice of any problem with his registration so that he could raise objection to its cancellation or alteration.

[8] This brings me to the first respondent’s case on the merits. It is that one of the functions of the registrar of the first respondent, in terms of s 18(1) and (2) of the Health Professions Act No 74 of 1974, is to keep the register of medical practitioners correctly, which implies the duty to correct inaccuracies. The registrar’s case is that that is all that was done: he changed the entries when he realised that there had been a computer error. This, he argues, was not administrative action. It was akin to correcting a clerical slip. Administrative action within the meaning of the Promotion of Administrative Justice Act would only be done, in relation to the case such as the present, once the board had applied its mind to change the registration of a medical practitioner whose name was on the register following an application for its entry which had been considered by the board. Here the applicant’s name had not been placed on the register of independent private practitioners as result of an application to the board which had been considered. It had got there by computer error. It could therefore be taken off by clerical correction of the error.

[9] I have a number of difficulties with this argument. In the first place there is no evidence that what happened here was akin a clerical slip. The bald allegation is made that the applicant was registered in the category independent practice (general practitioner) by error as a result of a faulty IT-system action. There is no explanation of what he faulty IT-system action was. Did the computer spit out wrong information because of a faulty programme? Did somebody who operated the computer give it incorrect information with the result it placed practitioners on the wrong list? Were practitioners other than the applicant placed on the wrong register as a result of the computer error? Is this error also a co-incidence? The applicant, who had asked to put on the register of private practitioners, was indeed put on that register. How did this all really happen? The first respondent, through its officials, is the only person who can explain what really happened. It does not do so.

[10] More fundamental, there is a distinction between a clerical error which occurs in house and is corrected in house before anybody’s rights are affected. This is clearly not such a case. Here, let us assume (because the applicant does not concede it although he cannot really dispute it) that the error, whatever it may have been, occurred and resulted in a change to the register. As a result of the error the applicant was sent a card entitling him to practice as a private general practitioner, not merely for the first year but for a second year as well. The first respondent, through one of its employees, confirmed that this was correct. And the registrar himself, who is also the deponent to the opposing affidavit, issued and signed the certificate of status confirming the applicant’s right to practice as a private practitioner. This is to be seen against the backdrop of an application by the applicant to be given the status of a private practitioner. I have no doubt whatever that in these circumstances the decision to cancel the applicant’s registration as a private practitioner and to re-instate his registration as a public service general practitioner was administrative action. This, to use the language of the Act, means any decision taken by a juristic person when exercising a public power or performing a public function in terms of an empowering provision of a statute which adversely affects the rights of any person. The first respondent is a juristic person exercising a public power in keeping the registers of medical practitioners and here its chief executive official took a decision which took away the right of the applicant to practice as a private practitioner, which he had previous enjoyed by reason of the entry of his name on the register of private practitioners.

[11] It does not matter that the applicant may not in fact have a right to be on the register because of his previous Transkei registration or that his name may have been placed on the register as the result of a computer error and not the result of a considered decision of the board to place his name on the register. As I have said, I do not have to determine the substantive rights of the applicant in this application, which concerns the process by which an alleged right was taken away. The facts show that he has a legitimate expectation to notice and a hearing, and the legislation specifically provides for notice.¹ The registrar here acted unilaterally, which he could not do in the circumstances. Section 18(5)² and section 19(1(f)³ provide that in these circumstances, where a person’s name is placed on the register in error, the board, not the registrar, should decide on the question of its removal, and, before that can be done, the procedure laid down by section 19 must be followed. It is common cause that that procedure was not followed. In the result, the conclusion is inevitable that the removal of the applicant’s registration from the register of private practitioners and its transfer back to the register of general practitioners in the public service was not only administrative action; it was unfair administrative action. This means that I am required to allow the application for review, if I have the jurisdiction to do so.

[12] I take the view that this court has jurisdiction. The first respondent’s objection is based on the decision in Jasat v Interim Medical and Dental Council⁴ which held that at common law the court of the applicant’s residence cannot entertain an application for review of the removal of an entry from the register of medical practitioners because jurisdiction vests in the court of the situs of the register. Jasat’s case distinguishes the principles laid down by the Appellate Division in Estate Agents Board v Lek.⁵ I am not sure of the justification for the distinction,⁶ and I am in any event of the view that the same distinction cannot be made in this case. Furthermore, Jasat’s case pre-dates the Promotion of Administration Act which is thought to overrule its effect.⁷ The Act says in section 6 that a court may review administrative action on the grounds set out in the Act. Section 1 defines the court which may do so, inter alia, as a high court within whose area of jurisdiction the administrative action occurred or the administrator has his principal place of administration or the party whose rights have been affected is domiciled or ordinarily resident or the adverse effect of the administrative action was, is or will be experienced. This court is a high court within whose area of jurisdiction the party whose rights have been affected is ordinarily resident and the court within whose area of jurisdiction the effect of the administrative action was, is and will be experienced. The plain meaning of the words in the Act gives it jurisdiction, whatever its jurisdiction may have been at common law.

[13] The argument on behalf of the first respondent is that the Promotion of Administrative Act is no more than a codification of the common law, that it does not intend to extend the common law, and that its provisions should be interpreted in harmony with the common law. Hence, I should interpret its provisions relating to jurisdiction so as to be in line with the common law decisions on jurisdiction. If I do that I must interpret the definition of ‘court’ in section 1 restrictively by reading into the definition a proviso to the effect that a court with jurisdiction is a court of ordinary residence or a court where the effect of the administrative is experienced, provided that there is also a common law ratio for jurisdiction. I cannot believe that such an interpretation is permissible. It is not part of the wording and does not arise from it by necessary implication. In my view the intention of the Act is to give wide, not restricted, protection against unfair administrative action, which implies greater, not more restricted, jurisdiction. What is the object of giving a court of ordinary residence jurisdiction if that is not enough for jurisdiction? When the Act was passed the legislature was surely aware of the decision in Jasat’s case. If so, the conclusion is inevitable that it intended by its wording of the definition of court to give jurisdiction where Jasat’s case had previously denied it.

[14] In the result the application for review must succeed with costs, with the result that the cancellation of the applicant’s registration in the register of private practitioners is of no force and effect. There will be the following order:

1. The decision of the first respondent of 15 November 2002 cancelling the applicant’s registration as an independent general practitioner is reviewed and set aside.

2. The first respondent is ordered to pay the costs of this application.

RJW JONES

Judge of the High Court

22 October 2004

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