Lunt v University of Cape Town and Another

• Jurisdiction: South Africa
• Judge: Howie J
• Judgment Date: 23 February 1988
• Court: Cape Provincial Division

Howie J:

This is an application on review for an order setting aside two decisions made on behalf of first respondent, the University of Cape Town, and one decision by second respondent, the Vice-Chancellor.

G The first decision refused applicant re-registration as a post-graduate student for 1987. The second decision, on appeal to the Vice-Chancellor, in effect confirmed the first decision. The third decision refused him re-registration for the 1988 academic year.

Applicant is a registered medical practitioner and was at the relevant times a post-graduate student pursuing a course of specialist study for H the degree Master of Medicine in Forensic Pathology at the university. He commenced this course of study in January 1984 and at the same time, to coincide with his course, obtained an appointment as registrar in forensic medicine, in which position he was an employee of the State Department of Health.

On 30 August 1986 the Director-General of the Department of I Health addressed applicant by letter containing the following:

'Your career in the Department of National Health and Population Development commenced on 1 January 1984 when you were appointed as registrar in forensic medicine.

Since that time it has become apparent that your suitability for a career as a Forensic Pathologist is questionable. This Department has, as a result, to inform you that it considers you to have shown J certain shortcomings for such a career.

Howie J

1.

A Your academic progress after two years and nine months has not been satisfactory. You have written two examinations during that period, ie histopathology (January 1985) which you failed, having spent 21 months in the Department of Histopathology. You passed the examination in Microbiology in July 1986 but did not on this occasion once more attempt B the histopathology examination. You are, I understand, unwilling to accept the results of the histopathology examination of January 1986.

2.

It appears from evidence available to me that your conduct in general in some of the various departments of pathology through which you have rotated is such that some of the Heads of Departments in the Medical School of the University of Cape Town are unwilling to accept you back in their departments in future.

You will, no doubt, realise that as a registrar in forensic medicine, your career in this Department can be seriously jeopardised if C the University is unwilling to accept you as a student in future.

3.

Certain medical evidence which you gave in court also puts a question mark against your suitability as a registrar in forensic medicine. I do realise that you are not a qualified specialist pathologist. Registrars in forensic pathology are, however, expected to give reliable and responsible evidence where they have D conducted autopsies on cases before the courts.

4.

Your attitude as a post-graduate student towards your academic responsibilities has been unsatisfactory according to my information. Your full co-operation and participation in the academic activities of the Department of Forensic Medicine is an important and vital part of your training at the University.

5.

E From the evidence at my disposal it would appear, furthermore, that you are lacking in the necessary degree of insight. You will realise that insight in all its various manifestations is an essential requirement for a specialist in forensic medicine and indeed for any senior official's career in this Department.

In view of the above I must request you to let me have your comment in writing as soon as possible on the various matters raised in this letter to you.'

F By letter dated 23 September 1986 the Dean of the Faculty of Medicine wrote to the Director of Regional Laboratory Services of the Department of Health in Cape Town formally advising that applicant would not be accepted as a post-graduate student in forensic medicine in 1987. This G decision was not, however, communicated to applicant until much later, as will appear.

On 4 October applicant replied to the letter of the Director-General and indicated that he appreciated having had brought to his attention the allegations made against him and for having the opportunity to reply. This opportunity he employed to set out various views at length and he indicated that if there were further details that were required from him he would be able to supply them. He also indicated that he H did not consider that the accusations against him were sufficiently particularised. Nonetheless, as I have said, he took the advantage of replying at length to the Director-General.

On 8 December 1986 the Director-General of Health wrote to applicant in these terms:

I 'Seeing that the University of Cape Town has formally decided not to re-register you as a post-graduate student in 1987 the merits of your representation as set out in your letter dated 4 October 1986 have not been considered and it has been approved that your probationary appointment be terminated with effect from 1 March 1987 in terms of s 12(4)(a) of the Public Service Act 1984. Your last day J of service will, therefore, be 28 February 1987.'

Howie J

A On 19 December 1986 the Dean of Medicine advised applicant in person that the Division of Pathology did not consider him suitable material for training as a forensic medicine specialist and at the same time he informed applicant that he would not be eligible for re-registration for the 1987 academic year. This was the first intimation applicant had received directly from the university that re-registration would B be denied him.

On 7 January 1987, when applicant attempted to re-register for the 1987 academic year, he was informed by the faculty secretary that he could not do so because he did not hold a departmental appointment. On personal approach to the Dean of Medicine, however, the latter C repeated his earlier intimation that the reason was that applicant had been considered unsuitable for training in forensic medicine.

Then followed a letter to the applicant from the Dean dated 13 January 1987 in which he conveyed the following:

D 'As indicated to you at our last discussion on 7 January 1987, acting on behalf of the Faculty of Medicine of the University of Cape Town, I, as Dean, have decided that you are not eligible for re-registration as a post-graduate student in forensic medicine. You will therefore not be re-registered as from the commencement of 1987. Acting on advice from Heads of Departments in the Division of Pathology the conclusion has been reached that you are not suitable E for training in the discipline of Forensic Medicine. I am not prepared to elucidate on this statement any further.'

On 27 March 1987 applicant interviewed the Vice-Chancellor in an attempt to have the Dean's decision reversed. The result of this approach was a letter from the Vice-Chancellor reading:

F 'Thank you for coming to see me on 27 March. I have now been into the matter very thoroughly and I do not see my way clear to supporting any change in the decisions made by the Dean of the Faculty of Medicine and the relevant heads of departments in the faculty.

You have claimed that you are unaware of any of the reasons for the decisions taken. I would suggest that you might gain some insight into G this matter if you refer to the letter addressed to you by the Director-General of the Department of Health and Welfare.'

The letter thus drawn to applicant's attention was the letter from the Director-General which I have already quoted.

H Applicant alleges that he thereafter took various steps to attempt to remedy his predicament but when none of these had borne fruit by October 1987 he caused his attorneys to write to the University's attorneys. The letter which they wrote in this connection, after setting out relevant matters of history that are pertinent in this case, called upon the University to permit applicant to register as a post-graduate student I in the Department of Forensic Medicine for the 1988 academic year, to furnish applicant with reasons for the refusal to register him for the 1987 academic year and to afford applicant an adequate and proper opportunity to answer allegations of misconduct or criticism against him J which might have motivated the decision relevant to the 1987 year which I have referred to as the first decision. The letter concluded:

Howie J

A 'In the event of your deciding not to permit our client to register as aforesaid we formally request reasons for such refusal so as to enable us to advise him in regard to his rights to take whatever appropriate action he might legally be entitled to pursue consequent upon such decision.'

This letter elicited the following response from the University's attorneys:

'We refer to your letter dated 26 October 1987. We have now had the B opportunity of taking instructions from our client regarding the various matters raised therein.

At the outset, we record that our client does not intend responding to each and every allegation contained in your letter under reply and its failure to do so should not be construed as an admission of the correctness thereof.

Your client has called upon our client to permit his registration as C a post-graduate student in the Department of Forensic...