South Africa: North Gauteng High Court, Pretoria

[20] In support of its contention that there are exceptional circumstances, De Vries submitted a number of submissions. They can conveniently be grouped in three broad categories. First, that it has been an accredited training institution for 22 years. Second, that the suspension of the order of 30 March 2017 would·certainly' lead to the permanent closure of its business, thus infringing on its right in terms of s 22 of the Constitution[2] to engage in economic activity and to pursue a livelihood. Third, that the suspension of the order would impact negatively on the rights of its students and its employees. With regard to the presence of irreparable harm to it , De Vries relied on the 'certain' closing down of its business , as well as the impact such closure would have on the community it serves, its students, as well as its employees. It further provided statistics and general information of the students trained by it from January 2013 to April 2017. Thus, broadly speaking, De Vries relied on the same grounds for exceptionality as for irreparable harm.

[21] As to the absence of irreparable harm to the appellants, De Vries contended that there was no evidence that the adoption of form 169A would have any positive effect to the regulatory functions of the HPCSA or the community it serves. Furthermore, that it had not been demonstrated that the conceptualization of form 169A was preceded by in -depth comparative studies with regard to the standard of qualification of basic ambulance assistants, and whether such research included stakeholder consultations. Lastly, it was contended there had not been any complaint regarding the competence of De Vries' graduates.

[22] The essence De Vries' contentions (of permanent closure of its business) found favour with the court a quo. In considering whether there are exceptional circumstances, the court a quo accepted that De Vries will have to close down its business. The reasoning for that conclusion is encapsulated in the following excerpt from the court's judgment:

'[20] [T]he predicament that the applicant [De Vrie s ] finds itself, in the event the order of Tolmay J is not made effective, is that it will be forced to shut down the training of basic ambulance assistants or as the first respondent [the board] argued, not be operational for a period of about nine months while it rearranges its operations, which will include the retraining of staff. That the applicant would have to do so after 22 years of uninterrupted service, is out of the ordinary. [I]t is cold comfort ... that the first respondent suggests that the risk that the applicant stands to run is the retraining of its staff which may take approximately nine months, while the said nine months is not even guaranteed. Inherent in the first respondent's reply to the contention that the applicant will have to contemplate closing down, is an unintended acknowledgment that the applicant stands to suffer harm and that such harm, from the first respondent's point of view, can be mitigated.

[21] [T]he fact that in the event the order is not made operational [the] applicant's [De Vries' ] operations will be affected, is a singular most convincing factor for this court to get involved. For it is precisely what the order of ToImay J sought to prevent. I am mindful of the fact that the court should intervene only in the rarest of cases and that whenever it does so, it is after a period of thorough reflection and caution. I am not dismissive of the statutorily conferred powers of the first respondent to regulate the applicant. However, the fact that the first respondent for over six years did not exercise the regulatory function it always could have, during which time the applicant conducted its operations, suggests that harm, on the part of the respondents [the appellants] from a regulatory point of view, is absent. On the flip side, if the order is not suspended, [the] applicant will need to deploy financial and other resources to capacitance [sic] its staff. That this will need to happen and that it has financial implications is not in dispute. That in my view is sufficient to make a finding that exceptional circumstances, on the facts of this case are present.'

[23] In its notice of appeal, the appellants relied on a number of grounds for their argument that the court a quo erred in not suspending the effect of the order of 30 March 2017. However, before us, the main argument advanced on behalf of the appellants was that the court a quo misdirected itself in accepting, as part of the enquiry into the existence of exceptional circumstances, De Vries' argument that its business would close down. It was argued that De Vries had not adduced sufficient evidence for that conclusion. On the other hand, it was argued on behalf of De Vries that the very fact of the mainstream of its business being the training of basic ambulance assistants (which is common cause), was sufficient for that conclusion.

Discussion

[24] Before I consider these arguments, I make two observations from the judgment of the court a quo. First, as correctly argued on behalf of the appellants, what appears to have weighed most heavily with the court a quo, is the fact that the suspension of the order of 30 March 2017 prevented the order from being put into effect. But with respect to the learned judge, that is the default position and a consequence of every pending appeal that the judgment and order being appealed against is suspended.

[25] Second, the court seemingly asked itself the following question: ' Who will be worse off between De Vries and the appellants if the order of 30 March 2017 is not put into operation?' It came to the conclusion that it was De Vries who will be worse off. With respect to the learned judge, that is not the correct approach. It is based on the test laid down in South Cape Corporation, and incorporated into the repealed rule 49(11). But that is no longer the test. The correct test is as set out in Jncubeta, which has been quoted fully in para 17 above.

Exceptional circumstances

[26] The central thesis of the court a quo's reasoning is that if the order of 30 March 2017 was not put into operation, De Vries' business will close down. The court a quo arrived at that conclusion on the acceptance of De Vries' mere-say -so, and the bare conclusion, of that eventuality. It did so as if it was common cause between the parties. It was not. On the contrary, the appellants strenuously argued against that proposition, providing practical steps De Vries could take to militate against the closing down of its business. I shall revert to this aspect later.

[27] As explained in Afriforum para 13, it must be borne in mind that in evaluating the circumstances relied upon by an applicant such as De Vries, ' a court should bear in mind that what is sought is an extraordinary deviation from the norm, which , in turn, requires the existence of truly exceptional circumstances to justify the deviation. 'Furthermore, s 18(3) requires such applicant, in discharging the onus on it, in addition to establishing ' exceptional circumstances' , to also prove, on a balance of probabilities , the presence (for it) and the absence (for the other party), of irreparable harm if the court does not order putting into operation the order. The requirements of s 18(1) and (3), observed the Supreme Court of Appeal at para 10, ' are more onerous than those of the common law', and that s 18(3) has introduced a 'higher threshold'.

[28] It goes without saying therefore, that an applicant in the position of De Vries cannot contend itself with bare conclusions. It must state facts from which it can be deduced whether the conclusions which it seeks to reach are sustainable. There is dearth of information as to how the non-training of the basic ambulance assistants would financially impact on its business. As already stated, all what De Vries stated in its founding affidavit is that ' the consequence of the 30 March 2017 decision as well as the respondents' [the appellants'] decision not to abide by the order, will certainly lead to the permanent closure of the applicant's [De Vries ' ] business. The fact that its mainstream business is that of training basic ambulance assistants, and that the suspension of the order of 30 March 2017 would affect its ability to do so, does not automatically translate into the conclusion that its business would close down. Clearly, this relates to its financial position and strength.

[29] At the risk of repetition, De Vries was required to adduce evidence of its financial sustainability if it was to comply with the new staffing requirements. It was supposed to place evidence before court to demonstrate, for example, what percentage of its income derives from the training of basic ambulance assistants, as opposed to the other aspects of its business. What are its reserves built over its 22 years in business? The fact that compliance with the new staffing requirements would cause it financial hardship, is not of itself ' exceptional' and does not translate to ' irreparable harm'.

[30] In the answering affidavit deposed to on behalf of the appellants, De Vries' bald assertion of the spectre of permanent closure was not only denied, but it was pointed out that it also offered other courses, which it could continue to offer. Also, De Vries could elect to take steps to comply with the requirements of form 169A by among others, enrolling its current teaching staff for a nine months course; by employing temporarily, persons that currently meet the teaching requirements of form 169A.

[31] These suggestions were in effect, a challenge to De Vries to explain how it arrived at its conclusion that its business would close down. In the replying affidavit, the appellants ' contentions were not met head on. De Vries does not adduce any facts or evidence to refute the suggestion that it could employ temporary teaching staff. It also rejects, without facts, the suggestion by the appellants that it could regain accreditation within a period of nine months and without going out of business.

[32] As correctly pointed out by the appellants, but for De Vries, every one of the 37 institutions has taken steps to ensure compliance with the staffing requirements of form 169A. Thus, De Vries is the only training institution that has refused to comply. The appellants further submitted that the requirement in form 169A to comply with a nine-month qualification is not an onerous requirement, as evidenced by all other training institutions having successfully raised the qualification level of their teaching staff. None of the other institutions have complained that compliance with the staffing requirements of form 169A had prejudiced their future sustainability.

[33] As part of the enquiry into the exceptionality, specific facts and context of the case must be considered. In this regard , the historical facts which gave rise to the withdrawal of De Vries ' accreditation as a training institution must be borne in mind. Unlike the court a quo, which did not consider them in any meaningful manner, I have elaborately set them out in paras 3-12 above, from the following can be distilled. It is common cause that De Vries was aware, from June 2011, of the decision on the staffing requirements of form 169A. Between that period and April 2016 it raised no complaint that those requirements would prejudice its sustainability. Instead, it acquiesced in the implementation of those requirements without murmur, by submitting to the periodic evaluation inspections for the years 2012 and 2015.

[34] It only launched its review application at the proverbial eleventh hour in November 2016, before the deadline for the coming into effect of the staffing requirements of form 169A on 31 December 2016. The appellants characterised this as ' opportunistic' .I agree. If De Vries was genuinely concerned with any of the aspects of form 169A, it should have acted promptly to challenge them. It knew, or ought to have known, as early as June 2012, that come 31 December 2016, all its staff members who were employed prior to 1 January 2012 and who did not comply with the educational requirements of form 169A would not be eligible to teach at an accredited institution.

[35] Implicit in that was that any institution whose staff did not meet the requirements, would lose its accreditation. Had De Vries acted promptly by launching an application to challenge the implementation of the requirements of form 169A, it is conceivable that by 31 December 2016 the matter could have been determined by the court. It is therefore impermissible for De Vries to seek reliance on its own inaction as part of establishing 'exceptional circumstance s' .

Irreparable harm to De Vries

[36] De Vries relied on the same grounds to establish exceptional circumstances and irreparable harm. Prominent among them is that its business would permanently close if the order of 30 March 2017 is not implemented. It must be accepted that there will be financial implications for De Vries and that it will suffer harm. But that harm must be ' irreparable'. It could only be irreparable if the non-implementation of the order would lead to the permanent closure of its business. As already stated in the consideration of exceptionality, there is simply no evidence to support that conclusion. De Vries' bald conclusion in this regard falls far short of the threshold set out in s 18(3).

[37] What is more, the very fact that the rest of accredited training institutions have complied with the staffing requirements of form 169A without disastrous financial implications, is an indication that De Vries' contentions lack merit. De Vries does not even attempt to demonstrate what makes its position different to the other training institutions. Put differently, there is no information as to why compliance with the staffing requirements of form 169A would impact De Vries differently than all other training institutions. It follows that De Vries has failed to establish any irreparable harm to it.

Irreparable harm to the respondents

[38] In finding that there was no irreparable harm attendant on the appellants, the court a quo misdirected itself when it stated the following:

·[T]he fact that the first respondent [the board] for over a period of six years did not exercise the regulatory function it always could have, during which time the applicant [De Vries ] conducted its operations, suggests that harm, on the part of the respondents [the appellants] from a regulatory point of view, is absent.'

[39] The court a quo misconstrued the facts by the statement referred to above.

From the exposition of the relevant factual background, it is clear that as early as May 2012, the board made known its intention to implement the staffing requirement s of form 169A. Initially, the deadline for compliance with those requirements was 31 December 2011. After taking into consideration the views and concerns of the stakeholders, including an umbrella organisation representing accredited training institutions, that deadline was extended to 31 December 2016.

[40] It was therefore incorrect for the court a quo to infer that the appellants, in particular the board, had adopted a supine attitude for the past six years, only to withdraw De Vries' accreditation in March 2017. As is clear from the factual background, the board was constantly engaged with De Vries, by among others, conducting evaluation inspections on its operations. It thus exercised its regulatory functions. In the result, the court a quo's reasoning for the conclusion that there is no irreparable harm to the appellants, is premised on an incorrect factual background, and amounts to a misdirection.

[41] As already stated, the appellants exercise a statutory and regulatory function. If the impugned order is implemented, the students who are trained by De Vries and who pass its examination, will be entitled to be registered as practitioners by the HPCSA. As correctly argued on behalf of the appellants, their registration would be irrevocable, even if the appellants were to emerge victorious in the appeal. Those students would have been registered and practiced despite the fact that they would have been trained by lecturers not qualified to do so. The appellants ' statutory and regulatory powers would, under those circumstances, have been irreparably inhibited and harmed , even if the impugned order is set aside.

Summary

[42] In my view, the court a quo failed to observe the judicial pronouncements enunciated in both Jncubeta and Afriforum. It is glaring that nowhere in its judgment did the court a quo refer to Afriforum - the latest authority by the Supreme Court of Appeal on the issue in dispute. Such failure ineluctably led it astray. Its approach was premised on a fundamentally flawed footing. That approach permeated its entire reasoning and led it to the conclusion it arrived at. It also misconstrued the facts, as demonstrated above, in its consideration of whether there was irreparable harm for the appellants. In all considerations, the appeal must therefore succeed.

Costs

[43] Finally, the issue of costs. The general rule that costs follows the event, must apply. The only aspect of costs which requires further consideration is whether costs of three counsel should be allowed. In my view, although the matter is of importance to the parties, I am not persuaded that the issues raised in the appeal warrant the costs of three counsel. In my view, costs of two counsel should suffice.

[44] In the result the following order is made:

1. The appeal is upheld with costs, such costs to include the costs consequent upon employment of two counsel;

2. The order of the court a quo is set aside and the following is substituted for it:

'The application is dismissed with costs, including costs consequent upon employment of two counsel.

_____________________ 

TMMakgoka Judge of the High Court

I agree 

___________________ 

Judge of the High Court 

I agree

____________________

EM Kubushi

APPEARANCES:

For the Appellants: D Berger SC (with T Manchu and T Makgalemele)

Instructed by:

Gildenhuys Malatji Inc., Pretoria

For Respondent: AC Ferreira SC (with SG Gouws)

Instructed by:

Schoeman & Associates, Pretoria