Court name
High Court
Case number
APPEAL 159 of 2008
Title

Itula v Medical and Dental Council of Namibia (APPEAL 159 of 2008) [2011] NAHC 155 (10 June 2011);

Media neutral citation
[2011] NAHC 155













REPUBLIC OF
NAMIBIA



CASE NO.
A159/08



IN THE HIGH
COURT OF NAMIBIA








In the matter
between:








PANDULENI
FILEMON BANGO ITULA
..........................................Applicant








and








THE MEDICAL AND
DENTAL COUNCIL OF NAMIBIA ................Respondent








CORAM:
VAN NIEKERK, J








Heard: 10 February
2010



Delivered: 10 June
2011



___________________________________________________________________________



JUDGMENT



VAN NIEKERK,
J:
[1] The applicant, who works in the dental profession and
resides in the United Kingdom, is also a dentist registered in
Namibia. This application concerns his efforts to secure registration
in Namibia as a specialist in the field of maxillofacial and oral
surgery and to have certain additional qualifications registered in
Namibia. He seeks, by way of an amended notice of motion, an order
with costs in the following terms:



1.1
Reviewing and setting aside the decision taken by the Respondent on
6
th
May 2008 refusing to consider and recognize the qualifications of
Applicant as an Oral and Maxillofacial Surgeon and to register him as
well as to recognize, and to register additional qualifications of
the applicant as applied for.



1.2 Reviewing and setting aside
the decision taken by the Respondent on 27 June 2008 refusing to
recognize the qualifications of the Applicant as an Oral and
Maxillofacial Surgeon and to register him in accordance with the
applicable laws of Namibia at the time when he applied.



1.3 Declaring the decisions by
the Respondent as unfair, unreasonable, unprocedural, discriminatory
and contrary to Articles 10, 18 and 21(1)(j) of the Constitution;
alternatively null and void and in any event of no force and effect.



1.4 Ordering the Respondent to
consider the Applicant’s application as provided for by the
applicable laws and to recognize and to register him as above.”



[2] The applicant
studied in the United Kingdom at the University of Bristol Dental
School where he obtained a qualification in 1994, which led to his
registration as a dentist in that country. After that he obtained
further qualifications from the Royal College of Surgeons of England
in Dental Surgery (1994) and a Master’s of Medical Science in
Oral Surgery from the University of Sheffield (1998).



[3] During April
2001 Dr Itula applied to the then Dental Board of Namibia to be
registered both as a dental practitioner and as a maxillofacial and
oral surgeon. A year later Dr de Chavonnes Vrugt, the secretary and
registrar of the Dental Board of Namibia, directed a letter to the
applicant informing him that his primary qualification as dentist was
acceptable in Namibia and that he could be registered as such. Dr de
Chavonnes Vrugt pointed out that, under the Namibian regulations, a
person cannot be registered as a dentist and a specialist at the same
time. He further stated that the application for registration as
maxillofacial and oral surgeon could not be accepted, as registration
as such requires a minimum period of study and curriculum to be
followed as stipulated in the applicable regulations, of which he
attached a copy. Although the applicant disputes that any regulations
were attached to this letter, it was common cause during oral
argument before me that the regulations referred to were certain
regulations promulgated in 1976.



[4] Eventually on
20 June 2003 the applicant was informed that his full registration as
a dentist with the Dental Board of Namibia had been successful. He
was also informed that his application for registration as a
specialist was not recognised.



[5] In the
meantime since he lodged his initial application in April 2001, the
applicant had continued to gain further qualifications and
successfully completed certain fellowships in the United Kingdom.
These were achieved at the Royal College of Physicians and Surgeons
of Glasgow, where he was elected as Fellow in April 2002, and at the
Royal College of Surgeons of Edinburgh, where he became a Fellow in
June 2002. In April 2005 he obtained a Post Graduate Diploma in
Dentistry (Sedation & Pain Control) at the University of the
Western Cape.



[6] On 10 April
2007 Dr Itula submitted two applications to the respondent. According
to his founding affidavit he applied for his qualifications to be
“recognised and registered.” The application forms he
completed were those of the Interim Health Professions Council of
Namibia. The forms provide for an application “for Registration
of an Additional Qualification, Speciality, Professional Category,
Additional Professional Category” and further provides that an
applicant should cross out or highlight which of the alternatives
he/she is applying for. The applicant did not indicate this clearly
on the two forms. From the respondent’s papers is appears that
the respondent interpreted the one application to be for the
registration of a speciality in maxillofacial and oral surgery and
the other as an application for the registration of an additional
qualification, namely that of the Post Graduate Diploma in Dentistry
(Sedation & Pain Control) at the University of the Western Cape.



[7] Throughout his
papers the applicant averred that his application for registration as
specialist was continuous or on-going since 2001, which was disputed
by the respondent. However, in oral argument applicant’s
counsel conceded that a fresh application for such registration was
made in April 2007. This concession is well founded.



[8] Correspondence
and emails were exchanged between the applicant and staff of the
respondent regarding the contents of the courses he had completed. It
appears that the relationship between the applicant and the
respondent, and/or some of its members, became strained for various
reasons which it is not necessary to set out here in any detail. It
is also not necessary to set out the correspondence in any detail.
What is clear is that the respondent as some stage became of the view
that there were no regulations in existence in Namibia to accommodate
applications for additional qualifications by dentists and for the
registration of specialists. The reason for this view, as I shall
examine in more detail below, is that certain regulations dating from
1976 had allegedly been repealed in the interim. The applicant was
informed of this view at least since September 2007. He was also
informed that draft regulations were being prepared for consideration
by the Minister of Health and Social Services and that his
application for registration as specialist could and would not be
considered by the respondent until such regulations had been
promulgated. In November 2007 the applicant was also forewarned that
the draft regulations contemplated increasing the number of study
years to a four year degree for specialists and that the respondent
would not engage in any further correspondence or communication
regarding the application until the new regulations are in force.



[9] It appears
that the applicant remained of the view that his qualifications and
experience were more than adequate for him to qualify for specialist
registration. During a meeting in January 2008 with Ms Barlow the
idea of him personally making representations to the respondent at a
meeting to explain his position, qualifications and expertise was
discussed. The representations never materialised as the respondent
on 25 February 2008 declined to hear the applicant in person.



[10] On 21 April
2008 the executive committee of the respondent met and discussed the
applicant’s application for registration as specialist. It
noted that his first application for registration as a specialist in
maxillofacial and oral surgery had been declined in 2003; that the
respondent had already before responded that the application could
not be considered in the absence of regulations prescribing for
dental specialization and that he would be informed once the new
regulation have been made. It further noted that Dr Itula had
indicated that he will seek arbitration and instruct his lawyers
accordingly. It noted that the respondent had also obtained a legal
opinion. The committee resolved to reiterate the earlier resolution
by the respondent that the applicant should wait for the new
regulations before his application for registration as a specialist
could be considered. It resolved that the earlier response given to
Dr Itula is “still relevant”. It further resolved that
the respondent should expedite the publication of the new regulations
and that it should then convene a meeting to consider Dr Itula’s
application.



[11] On 6 May 2008
the respondent met and noted the discussion of the executive
committee on 21 April 2008. It resolved that Dr Itula should be
informed to apply for registration of his additional qualifications.
The respondent clearly decided to stand by its earlier decision
regarding the application for registration as specialist. After the
meeting the registrar on 12 May 2008 addressed a letter to the
applicant, the relevant part of which reads as follows:



Kindly
be advised that the Medical and Dental Council of Namibia has
finalised the draft Regulations relating to qualifications that may
be registered as specialities and additional qualifications for
dental practitioners. In this regard, the Council at its meeting held
on 06 May 2008 resolved that the draft Regulations should be
forwarded to the Hon. Minister of Health and Social Services as a
recommendation to enable the Hon. Minister to issue the Regulations
under Section 59 of the Medical and Dental Act, 2004 (Act No. 10 of
2004).



The Council also reaffirmed its
earlier decision, which was communicated to you accordingly, that you
will be notified once the promulgation of the Regulations is
completed and that it is only then that your application for
registration as Specialist: Maxillofacial and Oral Surgery will be
considered while, in the meantime, Council will not entertain
enquiries on the above.



Furthermore, please be informed
that the Ministry of Health and Social Services was recently advised
by the Ministry of Justice that the Regulations relating to the
registration of additional qualifications (R 2275 of December 1976)
are still operational in Namibia. In this regard, Council at the same
meeting resolved to consider your qualifications for recognition as
additional qualifications, should you apply for such recognition.
With the exception of your postgraduate diploma in Sedation and Pain
Control, the Council noted that the records in your file shows that
you had only applied for registration as a Specialist: Maxillofacial
and Oral Surgery on the basis of the qualifications submitted and did
not apply for the recognition of these qualifications as additional
qualifications.



In view of the above, the
Council resolved to approach you to indicate the qualifications you
may wish to be considered for recognition as additional
qualifications and submit an application accordingly.”








[12] From these
developments it is clear that the respondent, since the receipt of
the Ministry of Justice’s opinion, realised that at least as
far as the registration of additional qualifications are concerned,
there were regulations in place dating from 1976.



[13] The applicant
does not say in so many words in his papers that he did or did not
apply as invited by the respondent and there is no copy of such an
application in the review record. He only states in passing in a
different context that there is no advantage to him to have the
additional qualifications registered if they do not lead to
registration as a specialist. Nevertheless there are several
references in the correspondence by the respondent’s staff to
applicant’s subsequent application dated 14 May 2008 for the
registration of his additional qualifications. There is also a letter
by Mr Weyulu of the respondent’s staff mentioning the fact that
the applicant lodged a notice of appeal against the respondent’s
alleged refusal to register same while it had not yet considered the
application. The respondent’s papers point out that the
application was not complete as it was not accompanied by the
requisite application fee and that this was pointed out in
correspondence to the applicant.



[14] it is common
cause that on 30 May 2008 the applicant lodged three notices of
appeal at the registrar’s office: two were notices of appeal
against the respondent’s decisions about certain complaints he
had made against other professional in the field; the third was
against the respondent’s decision on 6 May 2008 about the
applicant’s application for registration of additional
qualifications and registration as specialist in maxillofacial and
oral surgery. However, the appeals never went ahead. There was no
appeal body in place as required by the Act.



[15] Shortly after
these events the long awaited new regulations were promulgated on 18
June 2008. The respondent then went ahead on 27 June 2008 to consider
the applicant’s application for registration as specialist. As
his qualifications did not meet the new 4 year minimum requirement,
his application was refused. His application to register his
additional qualifications was not considered as it was incomplete
despite the fact that he was earlier informed of this fact.



[16] On 20 June
2008 the registrar informed Dr Itula of the outcome of the meeting
and again requested him to pay the prescribed application fee as his
application was still incomplete.



[17] The next step
was the launching of this application, in which the applicant seeks
to have the decisions of 6 May and 27 June reviewed and set aside.
The applicant launches his attack on several grounds. The first main
ground is that the respondent erred in law by declining to exercise
the jurisdiction it had to consider the applicant’s application
for registration as a specialist under the 1976 regulations. The
other grounds cover a wide range including allegations of
irrationality, arbitrariness, capriciousness, unreasonableness,
procedural unfairness, unfair discrimination and bias. On the view I
take of the matter, it is not necessary to deal with all these
grounds. The gist of the matter lies in deciding whether the first
ground holds any water. I therefore turn now to an overview of the
various pieces of legislation which have a bearing on the matter.



[18] At the time
during April 2001 when Dr Itula first applied to be registered as a
specialist the applicable statute governing the dental profession was
the Medical and Dental Professions Act, 1993 (Act 21 of 1993). The
predecessor of this Act was the Medical, Dental and Supplementary
Health Service Professions Act, 1974 (Act 56 of 1974,) of South
Africa. Under Act 56 of 1974 there was a joint governing body for the
medical and dental professions called the South African Medical and
Dental Council.



[19] By virtue of
section 56(2) of Act 21 of 1993, certain regulations made under Act
56 of 1974 and regulating both the medical and the dental profession
were deemed to have been made under Act 21 of 1993. One set of such
regulations was made by the (South African) Minister of Health, on
the recommendation of the South African Medical and Dental Council
under (South African) Government Notice R. 2276 of 3 December 1976,
namely “Regulations relating to the registration of the
specialities of medical practitioners and dentists, the requirements
to be satisfied before their specialities can be registered, the
circumstances in which any applicant for registration shall be
exempted from such requirements and the conditions in respect of the
practice of medical practitioners and dentists whose specialities
have been registered.”



[20] It is common
cause that these were the regulations which governed the applicant’s
first application in 2001 for registration as a specialist and that
these regulations continued to apply at least until 29 October 1999.
It is the respondent’s case that these regulations were
repealed on that date, while it is the applicant’s case that
they continued in existence until their repeal on 18 June 2008.



[21] Another set
of regulations which were deemed to have been made under Act 21 of
1993 were Regulations relating to the registration of additional
qualifications
made under (South African) Government Notice R2275
of 3 December 1976. It is common cause that these regulations were
repealed on 18 June 2008.



[22] Under section
2 of Act 21 of 1993 there was no longer a joint council for the
medical and dental profession as was previously the case. Instead,
there was a separate professional board for each, namely the Medical
Board and the Dental Board. Each of these Boards was endowed with
certain powers under Act 21 of 1993, but only with respect to the
profession for which it was established. One such power was granted
by section 18(1) of Act 21 of 1993, namely to make recommendations to
the Minister to prescribe the qualifications which, when held singly
or conjointly with any other qualification, shall entitle the holder
thereof to registration as a medical practitioner or a dentist under
the Act. Clearly each Board was authorised to act only within the
sphere of the profession for which it was established. Another power
was contained in section 50(1) of Act 21 of 1993, namely to make
recommendations to the Minister to make regulations on a wide range
of matters. Of relevance here is the powers under section
50(1)(j)(i)-(iv) to make regulations concerning the registration of
specialities under section 24 of the Act.



[23] On 29 October
1999 the Namibian Minister of Health and Social Services made, on the
recommendation of the Medical Board, certain regulations in two
government notices. In Government Notice 237 certain regulations were
made relating to qualifications entitling medical practitioners to
registration. Regulation 3 of this Notice reads as follows: “The
regulations published under Government Notice No. 2273 of 3 December
1976 are repealed.” (Although the reference is to Government
Notice “No. 2273”, it is clear that the reference should
have been to “No. R 2273”). On the face of it regulation
3 repealed regulations that dealt with medical practitioners as well
as dentists. However, while other qualifications were prescribed for
medical practitioners in place of the repealed qualifications, none
were prescribed for dentists.



[24] Similarly, in
Government Notice 238 new regulations were made relating to the
registration of medical practitioners, specialities and medical
interns. It is common cause that none of the regulations in this
Notice deal with the dental profession. Moreover, regulation 24 of GN
238 repealed Government Notices R. 2271, 2272, 2274, and 2276 of 3
December 1976. For purposes of this judgment I shall deal only with
the repeal of GN R. 2276. The effect of regulation 24, on the face of
it, was that there were new regulations governing the registration of
specialities in the medical profession, but no regulations governing
the registration of specialities in the dental profession.



[25] It is
respondent’s case that initially its part-predecessor, the
Dental Board of Namibia, unaware of the implications of the purported
repeal of the said regulations, continued to apply them after 29
October 1999, as is evidenced by the records of the Dental Board and
its registers. Only after Act 21 of 1993 was repealed on 1 October
2004 by the Medical and Dental Act, 2004 (Act 10 of 2004), and the
respondent was established as a new joint governing body for both
professions, was it “realized” that there allegedly were
no regulations prescribing qualifications for dentists or regulations
for the registration of specialities in the dental profession. In
this regard the respondent relies on the alleged repeal by regulation
24 in GN 237. After the opinion of the Ministry of Justice mentioned
above in paras. [11] and [12] was received, the respondent changed
its view on the existence of regulations relating to the registration
of additional qualifications.



[26] The
respondent proceeded to draft new regulations and these were
promulgated in Government Notice No. 155 by the Minister of Health
and Social Services on the recommendation of the respondent on 18
June 2008 as “Regulations relating to registration of
dentists; Qualifications that may be registered as specialities and
additional qualifications; Maintaining of registers of dentists and
restoration of name to register”.
Of interest is that in
paragraph (b) of the Notice the Minister repeals “the
regulations made under Government Notices Nos. R2269, 2273, 2274,
2275, 2276, 2277 and 2278 of 3 December 1976, and No. R 1829 of 16
September 1977, insofar as they apply to dentists”.



[27] Mr Borgström
on behalf of the applicant submitted that the 1976 regulations under
GN R. 2276 in so far as they related to dentists were not in fact
repealed in 1999, but continued to apply until 18 June 2008 by virtue
of section 65(2) of Act 10 of 2004, which reads as follows:



(2)
Unless otherwise provided in this Act, any notice, regulation, rule,
authorisation or order issued, made or granted, or any removal from
the register or appointment made, or any other act done, or regarded
to have been so issued, made, granted or done in terms of a provision
of any of the laws repealed by subsection (1), must be regarded as
having been issued, made, granted or done in terms of the
corresponding provision of this Act, and continues to have force and
effect-



(a) unless it is inconsistent
with this Act; or



(b) until such time as it is
set aside or repealed.”



[28] Mr Barnard
on behalf of the respondent, on the other hand, submitted that
section 65(2)(b) finds application here, as the regulations were
expressly and clearly already repealed in 1999. He submitted that the
words used in the 1999 regulations were clear and unambiguous, their
effect being that all the regulations, including those in GN R. 2267
that deal with dentists, were repealed. He submitted that the
applicant’s argument that the repeal of these regulations
insofar as they relate to the dental profession amounted to an error
cannot be entertained without the Minister being joined as a party.
Furthermore, he submitted, even if the Minister had made a mistake,
which the respondent does not admit is the case, the mistake cannot
be corrected by means of interpretation.



[29] Counsel
referred to the general rule that the words of a statute must be
given their ordinary, grammatical meaning unless doing so would lead
to an absurdity so glaring that it could never have been intended by
the lawmaker, or where it would lead to a result contrary to the
intention of the lawmaker, as shown by the context or by such other
considerations as the court is justified in taking into account. (In
this regard he referred to Summit Industrial Corporation v Jade
Transporter
1987 (2) SA 583 AD at 596G and Engels v Allied
Chemical Manufacturers (Pty) Ltd
1992 NR 372 HC at 382F and
further). He submitted that the mere fact that the 1999 regulations
caused a repeal of regulations relating to dentists without providing
alternative regulations does not lead to a glaring absurdity or a
result contrary to the intention of the Minister.



[30] I do not
agree with counsel’s submissions in this regard. To my mind the
context of the words used in regulation 24 cannot be divorced from
the introductory words of the notice which clearly state that the
Minister has “under section 50(1) of the Medical and Dental
Professions Act, 1993 ........ and on recommendation of the Medical
Board, made the regulations set out in the Schedule.”
The
Minister is clearly of the intention to act lawfully in terms of
section 50(1), which permits him only to make regulations on the
recommendation of the relevant Board, which in turn can only make
recommendations pertaining to the medical profession. To hold
otherwise would mean that the Minister intended to unlawfully repeal
the 1976 regulations insofar as they relate to dentists. Read
properly in context the words in regulation 24 intended to convey and
should be interpreted to mean that the 1976 regulations are repealed
only insofar as they relate to the medical profession.



[31] In the
alternative, it seems to me that Mr Barnard’s
submissions lose sight of the fact that any repeal of the 1976
regulations by the Minister without the recommendation of the Dental
Board at the time would have been ultra vires and of no
effect. Clearly the Minister could only act on the recommendation of
the Dental Board, which was not involved in the making of the 1999
regulations or the purported repeal. Furthermore, the purported
recommendation by the Medical Board to the Minister to repeal the
1976 regulations in their totality and not just those relating to the
medical profession would have been unlawful and invalid and therefore
ineffective. There is a presumption that the lawmaker does not intend
to make any ineffective provision (Steyn, Die Uitleg van Wette
(4th ed) p124 a.f.). Furthermore, in the case of
sub-ordinate legislation, such as regulations, the presumption finds
application in that the Court, when interpreting a regulation has a
duty to avoid, if possible, an interpretation which renders the
provision lawful and valid, rather than giving it a meaning which
renders it invalid (R v Vayi 1946 NPD 792; R v Pretoria
Timber Co. (Pty) Ltd
1950 (3) SA 163 (A) 170). To the extent that
it may be said that the words in regulation 24, by not expressly
limiting the ambit of the repeal, creates ambiguity as to their
extent and meaning and thereby cause uncertainty as to their
applicability to dentists, they must be interpreted in a manner which
would uphold their efficacy and validity.



[32] I therefore
agree with the submissions made on behalf of the applicant that his
application for registration of a speciality should have been
considered under the 1976 regulations as these were still in force at
the time, until they were repealed on 18 June 2008.



[33] It is common
cause that the applicant’s qualifications did not comply with
the requirements set at the time in regulation 5 which reads as
follows:



5. A
dentist who desires to have his speciality entered into the register,
and who was not practicing such speciality prior to the promulgation
of these regulations, shall be required to hold a degree or diploma
indicating to the satisfaction of the council a standard of
professional education related to the speciality concerned higher
than that prescribed for registration as a dentist, and to submit
documentary proof to the council as follows:




  1. That he has held a registrable
    qualification for a period of at least five years; and



  2. that he has spent at least two
    of these years in general practice or in lieu thereof has obtained
    such other experience as the council may from time to time
    determine; and



  3. that he has spent either three
    years’ full-time, or a longer part-time period covering the
    same prescribed course, in a recognised university, dental school,
    hospital or similar institution or department which provides
    satisfactory opportunity for the study of the particular
    speciality.”




[34] As I
understand it, the problem was that the applicant did not comply with
the requirements of regulation 5(3) in that the study period for any
of his qualifications relating to the speciality did not exceed two
years full time. However, the applicant relies on the provisions
contained in regulation 6 of GN R.2276 which state:



6.
Notwithstanding anything to the contrary in these regulations
contained, it shall be lawful for the council to register the
speciality of the .... dentist who has substantially complied with
the requirements of these regulations and who in the opinion of the
council is competent to practice as a specialist.”



[35] The applicant
submits that the combination of his qualifications, competence and
experience is sufficient for the respondent to conclude that he
substantially complies with the requirements of the 1976 regulations.
Ms Barlow has expressed the contrary view in her affidavits. In my
view this is a decision which the respondent itself should make,
properly and fairly taking all relevant aspects into consideration.
The respondent, because it mistakenly held the view that it was not
empowered to consider the application in the light of the 1976
regulations, has not yet applied its mind to this question.



[36] In his notice
of motion the applicant prays that the respondent should be ordered
to consider the application and “to recognize and register”
him as a specialist in maxillofacial and oral surgery. During the
hearing before me counsel for the applicant submitted that the Court
had enough information before it to direct the respondent to register
the applicant as such a specialist and requested the Court to do so.
I do not think that the Court should accede to this request. It does
not have the necessary expertise or information before it to take
such a step. The process under regulation 6 entails an evaluation and
review of the content of the various qualifications and the
competence of the particular dentist which is best left to the
respondent to undertake.



[37] As I
understand it, Mr Barnard submitted that it would serve no
purpose to refer the application back to the respondent, because the
application is in any event incomplete. I do not find an indication
in the papers that the application for registration as specialist is
incomplete. This application should therefore be considered by the
respondent in the light of the 1976 regulations. It is only the
application for registration of the additional qualifications that
was incomplete as the applicant had not paid the prescribed fee. As
far as this application is concerned, I do not think I need to make
any order.



[38] The result is
then that the application succeeds in the main, subject to some
adjustments to the order prayed for. The following order is made:



  1. The
    decision of the respondent taken on 6 May 2008 refusing to consider
    the applicant’s application for registration as a specialist
    in maxillofacial and oral surgery is reviewed and set aside.


  2. The
    decision of the respondent taken on 27 June 2008 refusing the
    applicant’s application for registration as a specialist in
    maxillofacial and oral surgery is reviewed and set aside.


  3. The
    respondent is ordered to consider the applicant’s application
    for registration as a specialist in maxillofacial and oral surgery
    on the basis of the requirements of the regulations made under
    Government Notice R. 2276 of 3 December 1976.


  4. The
    respondent shall pay the costs of the application.












______________________



VAN NIEKERK, J








Appearance for
the parties



For the applicant:
Adv D Borgström



Instr. by Conradie
& Damaseb








For the
respondent: Adv P Barnard



Instr. by Metcalfe
Legal Practitioners