Hospital Association of South Africa v Head of Department, Kwazulu-Natal Department of Health and Others (9148/2021P) [2022] ZAKZPHC 7; [2022] 2 All SA 831 (KZP) (10 March 2022)

Key Facts

Issues

• Whether the applicant should be granted condonation in terms of section 9 of the Promotion of Administrative Justice Act (PAJA) for its failure to institute proceedings within the 180-day period prescribed in section 7 of PAJA, considering the extensive prior engagements with the Department and the public interest in resolving the matter.
• Whether the first respondent's failure and refusal to issue Letters of Support to the applicant's members should be reviewed and set aside, and whether such failure should be substituted with an order directing the issuance of Letters of Support in terms of the relevant regulations and circulars, despite the Department's claims of a surfeit of qualified nurses.

Holdings

• The first respondent's refusal to issue Letters of Support to the applicant's members was reviewed and set aside, as it was found to be unreasonable, irrational, and in direct contravention of the Constitution's right to access healthcare services under section 27.
• The first respondent was ordered to issue Letters of Support to the applicant's members within 10 days, in accordance with the Regulations Relating to the Accreditation of Institutions as Nursing Education Institutions (GN R173, GG 36234, 8 March 2013) and the National Department of Health Circular 1 of 2018, as the failure to do so hindered nurse training critical for public health.
• The applicant was granted an extension of time and condonation under section 9 of PAJA for its failure to institute proceedings within the 180-day period prescribed in section 7 of PAJA, as the delay was justified by extensive engagements with the Department to resolve the matter amicably and the public interest in addressing nurse shortages.
• The first and second respondents were ordered to pay the costs of the application, including the costs of two counsel, due to the court's determination that the issues raised by HASA were of significant public importance and the respondents' unreasonable conduct in opposing the application.

Remedies

• The applicant is granted, in the interest of justice, an extension of time and condonation, in terms of section 9 of the Promotion of Administrative Justice Act 3 of 2000 ('PAJA') for its failure to institute proceedings within the period prescribed in section 7 of PAJA.
• The first respondent's failure and/or refusal to issue Letters of Support to the applicant's members is substituted with an order directing the first respondent to, within ten (10) days from service of this order, issue Letters of Support to the applicant's members in terms of the Regulations Relating to the Accreditation of Institutions as Nursing Education Institutions (GN R173, GG 36234, 8 March 2013) read with the National Department of Health Circular 1 of 2018 issued on 23 November 2018.
• The first respondent's failure and/or refusal to issue Letters of Support to the applicant's members is hereby reviewed and set aside.
• The first and second respondents are ordered to pay the costs of this application, such costs to include the costs of two (2) counsel.

Legal Principles

• The court applied judicial review principles under the Promotion of Administrative Justice Act (PAJA) to grant condonation for HASA's delay in instituting proceedings. Section 7 of PAJA requires actions to be taken within 180 days, but section 9 allows extension if the interests of justice require it. The judge emphasized that the delay was justified by extensive pre-litigation engagement and the public interest in resolving the nursing shortage crisis.
• The court substituted the Department's decision to issue Letters of Support as an 'exceptional case' under PAJA section 8(1)(c)(ii)(aa). This was justified due to the urgency of the nursing crisis and the impracticality of remitting the matter for reassessment, given the Department's history of unresponsiveness and the public interest in expediting nurse training.
• The Department of Health's refusal to issue Letters of Support was found unreasonable and irrational, violating section 33 of the Constitution which mandates lawful, reasonable, and procedurally fair administrative action. The judge highlighted the lack of evidence for the Department's claims of a nursing surplus and the adverse impact on healthcare access in KwaZulu-Natal.

Precedent Name

• Camps Bay Ratepayers' and Residents' Association and another v Harrison and another
• Commissioner, Competition Commission v General Council of the Bar of South Africa and others
• Tasima (Pty) Ltd v Department of Transport
• Aurecon South Africa (Pty) Ltd v City of Cape Town
• Oudekraal Estates (Pty) Ltd v City of Cape Town and others
• Minister of Environmental Affairs and Tourism and others v Phambili Fisheries (Pty) Ltd
• Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited and another
• Ras Behari Lal and others v the King Emperor

Cited Statute

• Nursing Act 33 of 2005
• Promotion of Administrative Justice Act 3 of 2000
• National Department of Health Circular 1 of 2018

Judge Name

Passage Text

• HASA has accounted fully for the delay in bringing these proceedings. In all the circumstances, I am of the view that HASA has conducted itself most appropriately throughout. Regrettably, the same cannot be said for the HOD and the Department. Accordingly, I am satisfied that a proper case for condonation has been made and it is in the public interest that such condonation be granted.
• I consider that the Department must know that without the Letters of Support, HASA members will just not be able to train nurses in various disciplines, and where there are critical shortages in such disciplines, HASA members will not be able to provide access to the health care services in those identified disciplines. By failing to accede to HASA's ongoing requests for such Letters of Support, it is clear on the papers that the Department is behaving unreasonably. It is also clear that the Department is limiting the public's right to access to health care services in the Province in direct contravention of the provisions of section 27 of the Constitution.
• The first respondent's failure and/or refusal to issue Letters of Support to the applicant's members is substituted with an order directing the first respondent to, within ten (10) days from service of this order, issue Letters of Support to the applicant's members in terms of the Regulations Relating to the Accreditation of Institutions as Nursing Education Institutions (GN R173, GG 36234, 8 March 2013) read with the National Department of Health Circular 1 of 2018 issued on 23 November 2018.