South African Veterinary Council and Another v Szymanski

• Jurisdiction: South Africa
• Judge: Howie P, Olivier JA, Streicher JA, Cameron JA and Lewis JA
• Judgment Date: 14 March 2003
• Citation: 2003 (4) SA 42 (SCA)
• Docket Number: 79/2001
• Hearing Date: 25 February 2003
• Counsel: B C Scoop for the appellant. J P van den Berg for the respondent.
• Court: Supreme Court of Appeal

Cameron JA:

[1] This is an appeal against an order of the Pretoria High Court which set aside an examination pass mark decision of the first appellant, the South African Veterinary Council ('the Council') (whose Registrar is the second E appellant), and which ordered the Council to register the respondent, Dr Szymanski, as a veterinary surgeon. The Court of first instance (Motata J) refused leave to appeal, but this Court later granted the necessary leave.

[2] The dispute arose from a special examination the Council conducted in September 1998 to enable South F African citizens or permanent residents with foreign veterinary qualifications to qualify for registration under the South African legislation. [1] Dr Szymanski obtained a veterinary degree in Poland in 1978. He immigrated to South Africa in 1989, becoming a citizen by naturalisation in 1994. He sat the special examination in 1998. After G moderation he was awarded a combined mark of 45,25% for the two component parts (written and oral). This the Council considered a failure, and refused to register him. In September 2000 he launched proceedings in the Pretoria High Court. The relief he sought was an order setting aside the Council's decision that the pass mark H was 50%, and requiring it to register him as a veterinary surgeon.

[3] The case Dr Szymanski made in his founding affidavit wa that he had a legitimate expectation that the requirement for passing the special examination was 40% for each of the oral and written parts (and not 50% for I either or both combined). He claimed the expectation arose from (a) pre-examination letters the Council sent; and (b) coversatins he had in August 1998 with one of its members, Professor Rautenbach,

Cameron JA

who was conducting a preparatory course on behalf of the Council for special examinaton entrants. To see A whether Dr Szymanski made out a case at all, and whether he was entitled to the relief he obtained, it its necessary to set out the details of both aspects of the claimed expectation.

[4] The Council wrote to Dr Szymanski on 13 June 1997 informing him of the special examination. Attached were B two documents - the first headed 'Special Examination Curriculum' and the second 'Special Examination for Registration as a Veterinarian - General Information'. The 'Curriculum' makes it clear that the special examination consists of two parts - a three-hour written examination (consisting of three sections, whose subject-matter is C specified); and a practical/oral examination. At its foot the document states:

'Candidates must obtain a sub-minimum of 40% in both sections of the evaluation procedure and registration will follow on ratification of results by SA Veterinary Council.'

The 'General Information' gives details such as application procedures, venue, enrolment dates and examination fee. Its concluding D section is 'Special examination information':

'7.1

The examination consists of two parts, namely:

a three hour written examination and a practical/oral examination as set out in the Curriculum. E

7.2

A minimum mark of 40% must be obtained in both the written and practical/oral examination.

. . . .'

[5] Dr Szymanski then applied to write the special examination and paid a registration fee. He states in his founding affidavit that he believed on the basis of these letters that he 'needed a minimum of 40% in the written and practical/oral examination in order to F be registered'.

[6] In August 1998 he attended the Council's preparatory course. There he saw a letter of 31 July 1998 the Council had sent to a colleague on the course (he says he received his own copy only later). The letter enclosed the 'venues, dates, times, template, rules and list of procedures' for the upcoming examination. It urged G candidates to contact the Council should they require any further information. The attachments included a document entitled 'SAVC Registration Examination: Administrative Rules'. This stated:

'3.13

A subminimum of 40% is required for each section and the practical/oral examination as well as a final combined mark of H at least 50% in order to pass the examination for registration with the Council.

3.14

Council does not accept responsibility for incorrect information obtained from unauthorised persons on examinations arrangements/or results. All enquiries must be made to the Secretariat.'

[7] Dr Szymanski states that he was 'immediately concerned' to read this document - but considered that it 'must be a I standard form attached to all such notices and aimed at the usual registration examination and not the special examination'. To put his mind at ease, however, he approached Rautenbach and asked him for 'clarification as to the correct position with specific reference to what the pass requirement was, ie J

Cameron JA

either an average of 50% on the specially combined mark or 40% on the A oral/practical and 40% on the written exam'. He states that Rautenbach undertook to approach the Council. The next day Rautenbach reported back that he had discussed the matter with its president, Professor Terblanche, who had informed him that candidates writing the special examination could ignore the 'Administrative Rules', since these had been sent in error to special entrants. Dr Szymanski says he was now convinced that to pass he needed only 40% in each of B the oral/practical and written examinations.

[8] The Council also sent out a letter dated 14 August advising candidates that, having been told in June 1997 that a subminimum of 40% was required in only the written and oral C examinations (as a whole), they should ignore the further suggestion in the July 1998 letter that a subminimum was required in each section of each examination (even though the latter was in accordance with Council policy). Dr Szymanski claimed to have received this letter only after the examination (which the Council disputes). He says it took him 'completely by surprise' and that he could not D believe that the Council could 'send such a notification' after the examination, which he had sat with the aim of obtaining only 40%.

[9] The Council in its opposing depositions strongly denied that, properly interpreted, its letters could mean that the pass mark E was only 40%. Even more emphatically, the Council disputed in detail that in August Rautenbach ever discussed the overall pass mark with special...