South African Nursing Council v Khanyisa Nursing School (Pty) Ltd and another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Dambuza ADP, Gorven JA, Meyer JA, Daffue AJA and Unterhalter AJA
• Judgment Date: 02 June 2023
• Citation: 2023 JDR 1900 (SCA)
• Hearing Date: 02 May 2023
• Docket Number: 835/2022
• Court: Supreme Court of Appeal

Unterhalter AJA (Dambuza ADP, Gorven and Meyer JJA and Daffue AJA concurring):

Introduction:

[1]

The first respondent, Khanyisa Nursing School (Pty) Ltd (Khanyisa), has for many years been accredited to train nurses. Khanyisa does so from its main campus in Johannesburg, and from campuses in other parts of the country. The appellant, the South African Nursing Council (the Council), was established in 1978. It derives its statutory powers from the Nursing Act 33 of 2005 (the Act). The Council's objects include the establishment of standards for nursing education and training within the ambit of the Act.

[2]

Khanyisa applied to the Council for accreditation to offer two nursing programmes: a diploma in nursing in the category 'general nurse'; and a higher certificate in nursing in the category 'auxiliary nurse' (the programmes). The

2023 JDR 1900 p4

Unterhalter AJA (Dambuza ADP, Gorven and Meyer JJA and Daffue AJA concurring)

approval of these applications was long delayed. On 26 April 2022, following a decision of the Council taken at its meeting on 30-31 March 2022, the Council notified Khanyisa that it had granted Khanyisa full accreditation to offer the programmes at four of its campuses. The letters of accreditation sent by the Council reflected the date of accreditation as 30-31 March 2022. This was made subject to a stipulation, framed as follows: 'the commencement date of the approved programme should be at the beginning of the academic year 2023 . . .'. I shall refer to this as the contested stipulation.

[3]

The contested stipulation was not acceptable to Khanyisa. If Khanyisa could have admitted students for the accredited programmes in May 2022, this would have allowed sufficient time to permit students admitted to these programmes to complete the programmes prior to the May 2023 board examinations. If Khanyisa was not permitted to do so, and was required to commence the programmes at the beginning of the following year, in 2023, this would be financially detrimental to it. Khanyisa's attorneys wrote to the Council. Khanyisa complained that the contested stipulation was unlawful. It sought urgent confirmation that it could commence its first intake in May 2022, failing which, Khanyisa would approach the courts on an urgent basis.

[4]

The Council was unmoved. It replied that the Council could not accede to Khanyisa's request because the Council was functus officio. Khanyisa then brought an urgent application in the Gauteng Division of the High Court, Pretoria (the high court) to review and set aside the accreditations, and, in essence, to order the Council to grant Khanyisa the accreditations, shorn of the contested stipulation. The review was predicated upon the proposition that the Council lacked the power to impose the contested stipulation, but if it did not, the contested stipulation was in any event an imposition that is arbitrary, capricious and unlawful.

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Unterhalter AJA (Dambuza ADP, Gorven and Meyer JJA and Daffue AJA concurring)

[5]

The high court (per Ndlokovane AJ) found that, in terms of the regulations promulgated under the Act, the accreditation of the programmes required that 44 weeks of training must be completed within an academic year, which is defined to mean within a calendar year. A calendar year means 'a conventional calendar year', that is from January to December. This, the high court decided, did not conclude the matter. The high court held that as the Council had on previous occasions granted accreditation for programmes to commence in the middle of the year, Khanyisa had a legitimate expectation that the Council would accredit Khanyisa's programmes to commence on or before 4 July 2022. The Council, the high court reasoned, had unreasonably delayed the accreditation of Khanyisa's programmes. The high court declared that Khanyisa was permitted to commence the programmes on or before 4 July 2022, and ordered the Council to give full accreditation to Khanyisa to offer the programmes on this basis. The high court also ordered the Council to pay Khanyisa's costs, including the costs of two counsel, on the scale as between attorney and client. The high court considered that the Council's dilatory conduct in accrediting the programmes, when access to education is of such importance to the health care system, warranted the imposition of a punitive costs order. Aggrieved by the decision, the Council sought leave to appeal, which the high court granted.

Issues:

[6]

The appeal turns on two issues. First, under the regulations that are of application to the accreditation of the programmes, an academic year is defined by reference to 'any calendar year'. The question therefore is this: Does any calendar year mean a year from 1 January to 31 December? And if it does, was the Council required to attach the contested stipulation to its accreditation of the programmes? If the Council was so required, then the contested stipulation was lawful. That conclusion would then give rise to a second issue. Did Khanyisa nevertheless enjoy

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Unterhalter AJA (Dambuza ADP, Gorven and Meyer JJA and Daffue AJA concurring)

a legitimate expectation to commence the programmes by the middle of 2022, given the past conduct of the Council, which had permitted accreditation of like programmes on the basis of commencement by the middle of a given year. This issue engages legal questions of no small complexity. In particular, whether an unlawful or ultra vires representation can found the basis of a substantive legitimate expectation. I need only engage this second issue if the first issue is resolved in favour of the Council.

The regulations: what is an academic year?

[7]

Section 42 of the Act sets out the requirements for an institution, such as Khanyisa, to conduct a nursing education and training programme. Khanyisa was required to apply in writing to the Council for accreditation of the programmes. To obtain accreditation, it had to submit information of the education and training programmes to be provided, and indicate how it would meet the prescribed standards and conditions for...