THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 20556/2014

In the matter between:

THE SOUTH AFRICAN DENTAL ASSOCIATION NPC
APPELLANT

And

THE MINISTER OF HEALTH
FIRST RESPONDENT
THE HEALTH PROFESSIONS COUNCIL
OF SOUTH AFRICA
SECOND RESPONDENT
THE CHAIRPERSON OF THE PROFESSIONAL
BOARD FOR DENTAL THERAPY AND ORAL
HYGIENE
THIRD RESPONDENT
THE DENTAL ASSISTANTS ASSOCIATION
OF SOUTH AFRICA
FOURTH RESPONDENT
Neutral citation:
South African Dental Association v Minister of Health
(20556/2014) [2015] ZASCA 163 (24 November 2015)

Coram:
Navsa, Shongwe, Willis, Swain and Zondi JJA

Heard:
2 November 2015

Delivered:
24 November 2015

Summary:
Health Professions Act 56 of 1974 – discussion of steps
required to establish a new regulated health profession in terms of that Act –

challenge to Regulations by Minister setting up regulatory regime in respect of dental
assistants – challenge time-barred in terms of s 7(1) of the Promotion of
Administrative Justice Act 3 of 2000 in respect of most of the regulations – challenge
in respect of remaining regulations defining scope of the profession as contemplated
in s 33 of that Act rejected – exception to general rule relating to costs in
constitutional matters applied due to the manner in which litigation conducted.

_

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Ismail J sitting as
court of first instance).

The following order is made:
The appeal is dismissed with costs, including the costs of two counsel where
employed by each of the respondents.

___

JUDGMENT

Navsa and Swain JJA (Shongwe and Zondi JJA concurring):

[1] In this appeal, as in the court below, the appellant, the South African Dental
Association (SADA), an association incorporated in terms of section 21 of the
Companies Act 61 of 1973 read with the Companies Act 71 of 2008 and which
represents a sizeable majority of dentists in South Africa, sought to set aside
regulations promulgated by the first respondent, the Minister of Health (the Minister),
purportedly made under the Health Professions Act 56 of 1974 (the Act), in terms of
which he recognised dental assistants as professionals, set qualifications to enable
their registration, and defined the scope of the profession. The appeal will deal with

the power of the Minister in terms of the Act to make regulations establishing and
regulating a profession, more particularly in relation to the recognition of dental
assistants as health professionals and represents, in juxtaposition, the interests of
dentists and those of dental assistants and involves the role of the Minister in
regulating health-related professions.

[2] If the fourth respondent, the Dental Assistants Association of South Africa
(DAASA), an advocate for the protection and promotion of the rights of dental
assistants, is to be believed, the appellant has been nothing but obstructive and has
steadfastly resisted their struggle, since 1995, to be recognised as professionals in
terms of the Act. Furthermore, DAASA contended that the real and underlying
objection of SADA to the recognition and regulation by the Minister of dental
assistants as professionals is the economic impact it might have on individual
dentists who are accustomed to their dental assistants‟ low wages. In short, DAASA
adopted the attitude that SADA is motivated purely by self-interest. Conversely, if
SADA, which represents a sizeable majority of the country‟s dentists, is to be
believed, they are particularly concerned about the welfare of dental assistants and
the interests of the public and were motivated in the litigation leading up to the
present appeal by their concerns that the requirement of registration for dental
assistants coupled with prescribed minimum qualifications would result, on pain of
criminal sanction, to a gross shortage of dental assistants. In addition it was
contended before us that SADA was intent on ensuring that the Minister adhered to
the principle of legality and that in its view, the Minister, in promulgating the
regulations in question, had acted beyond his powers. SADA complained that years
of representations made by it had not been taken into account by the Minister and
that in promulgating the regulations the Minister acted irrationally in that he did not
consider the consequences, particularly criminal sanctions that would attend upon
dentists and dental assistants who failed to meet the criteria for the recognition and
registration set out in the regulations. They were emphatic that the existing long
established practice of on-the-job-training conducted by dentists for dental
assistants, had adequately served the dental profession.

[3] The second respondent, the Health Professions Council of South Africa
(HPCSA) was established in terms of s 2 of the Act and has among its objectives the
coordination of the activities of professional boards and the promotion and regulation
of inter-professional liaisons between health professions, in the interest of the public
and the promotion of the health of the citizens of the country.1 The third respondent
is the Chairperson of the Professional Board for Dental Therapy & Oral Hygiene (the
Chairperson of the Board), established in terms of s 15 the Act.

[4] SADA applied to the Gauteng Division of the High Court, Pretoria, for an
order setting aside a series of regulations made by the first respondent, the Minister
of Health, in terms of which he purported to establish a professional board for dental
assistants, set qualifications to enable their registration, and defined the scope of the
profession. The court below (Ismail J), dismissed the application and granted leave
to appeal to this court. As in the court below, the respondents are united in their
opposition to SADA. Even though this appeal is to be decided within a narrow
compass it is nevertheless necessary, for reasons that will become apparent, to set
out the detailed background which follows.

[5] It is common cause that over the years dental assistants have assisted
dentists with dental procedures that require contact with patients. DAASA was
founded in 1983 with the stated objective of protecting and advancing the interests of
dental assistants nationally. DAASA‟s membership is comprised almost entirely of
women, a large percentage of whom are also Black. It is clear that dental assistants
is a group representative mostly of people who have been previously disadvantaged
and discriminated against. Since 1995, as stated above, DAASA has been
advocating for the statutory recognition and regulation of the work of dental
assistants. It contended that this was to be achieved, inter alia, by formal and on-
going job training to ensure a minimum quality of service by dental assistants. In
its

1 See especially ss 3(a), (b) and (e) of the Act.

opposition to the relief sought by SADA, DAASA stated that statutory professional
recognition would have the following results: first, it would provide dental assistants
with recognition for the value of their work and it would protect them in the
workplace; second, quality minimum training and regulation would ensure the best
possible service to the public and create a mechanism for redress. The parameters
within which they were to be recognised would be determined by the scope of their
work which the Minister would define.

[6] For approximately two decades DAASA has been in communication with the
HPSCA and the Boards for Dental Therapy and Oral Hygiene regarding the
professional recognition of dental assistants and in that regard submissions were
made to the Minister. DAASA was emphatic in its support for the Minister in his
attempts to recognise and regulate dental assistants within professional boundaries.
Before us it became apparent, for reasons that will be discussed in due course, that
the only regulations that remained in dispute were those relating to the scope of work
of dental assistants. DAASA described the type of work that they are accustomed to
doing which includes:
(i)
Preparation and clinical maintenance of the dental surgery;
(ii)
Application, adherence and observance of universal infection control
procedures;
(iii)
Assisting dental practitioners in clinical procedures where appropriate;
(iv)
Mixing and handling of dental materials;
(v)
Performance of administrative functions in practice management;
(vi)
Application of knowledge of radiographic examinations and processing of
radiographs;
(vii)
Application of the necessary measures to assist during emergencies in the
dental surgery;
(viii)
Implementation of occupational health and safety procedures;
(ix)
The promotion of oral health; and
(x)
Understanding and application of judicial and ethical aspects associated with
dentistry in South African including patient confidentiality.

[7] It appears to us, to be incontrovertible that dental treatment is invasive and
involves body fluids such as saliva and blood and that individuals living with blood-
borne diseases will on occasion be patients and/or dental health care practitioners.
This would mean that both patients and dental health care practitioners may be
exposed to a variety of microorganisms which include:
 Cytomegalovirus;
 Hepatitis B Virus (HBV);
 Hepatitis C Virus (HCV);
 Herpes Simplex Virus Types 1 and 2;
 Human Immunodeficiency Virus (HIV);
 Mycobacterium Tuberculosis;
 Streptococci; and
 Other viruses and bacteria: specifically, those that infect the upper respiratory
tract.

[8] It cannot be contested that in a dental practice infections may be transmitted
in a number of ways, including the following:
(i)
direct contact with blood;
(ii)
oral fluids; or
(iii)
other secretions;
(iv)
indirect contact with contaminated instruments;
(v)
operatory equipment, or environmental surfaces; or
(vi)
contact with airborne contaminants present either in droplet spatter or
aerosols of oral and respiratory fluids.

[9] The assertion by SADA that it is the dentist, and not dental assistant who is
at the forefront of infection control in a dental practice, is not the whole truth. If
regard is had to the type of work they do, set out in para 6 above, it is clear that,
working alongside dentists, they too are exposed to the dangers of communicable
diseases and, more importantly, they play a significant role in the prevention of such
diseases.

[10] It is necessary to record that DAASA, was not originally a party to the
litigation initiated by SADA. It only later became a party after the Minister had taken
the point that DAASA‟s exclusion was a material non-joinder, and DAASA then
sought leave to intervene, which SADA opposed, on the basis that the former did not
have locus standi because it lacked the power to sue or be sued. DAASA sought its
own relief in the form of a provisional counter claim, in the event that SADA was
successful in its application. The order sought was as follows:
„6.1
The First Respondent (The Minister of Health) must formally prescribe a professional
category or additional professional category for dental assistants in terms of section
35(2) of the Health Professions Act 59 of 1974 (the Act), or in terms of such other
section/s as may be found to be applicable.
6.2
The First, Second (HPCSA) and Third Respondents are ordered to comply with all
legal prerequisites in order to give lawful effect to paragraph 6.1, more particularly to
comply with the provisions of sections 15(1) to 15(5), section 24, section 33 and all
such other provisions of the Act required to normalise the profession of dental
assistants.
6.3
It is declared that regulations made for the profession of Dental Assistant in terms of
the Act shall be deemed to have been made regularly.‟

[11] According to the Minister, his department had over the years identified the
need to ensure a higher standard of assistance in dental care and was intent on
ensuring that dental assistants, who played a vital role in preparing and sanitising a
patient, and assisting a dentist in providing efficient dental care, were properly
trained. This, according to the Minister, prompted various consultative processes
over an extended period of time, which led to the promulgation of the regulations that
are the subject of the present litigation.

[12] As stated earlier, SADA challenged the adequacy of the consultation
processes, insisting that its many written representations over a number of years,
stretching from 2001, were ignored and not considered by the Minister and
contended that, in any event, he had no statutory power to promulgate the
regulations at the heart of the present dispute. In short, the basis of SADA‟s case
was first, that the Minister had no statutory power to make the regulations in

question. Second, he failed to have regard to the representations by SADA. Third,
that his actions in promulgating the impugned regulations were irrational in that he
failed to take into account that while there are currently 4 200 practicing dentists in
South Africa, there are only approximately 2 500 dental assistant who meet the
qualification and registration requirements and are registered. The consequence of
the impugned regulations would thus be, so the argument went, that around half of
all persons currently employed as dental assistants could no longer practise as such
and that the disproportion between dentists and dental assistants would be
maintained or worsen. In addition, dental assistants as well as the dentists
employing them would be liable to criminal prosecution since their employment
would be unlawful. We will, in due course, deal with the Minister‟s statutory powers
and the nature and extent of the representations by SADA and consider whether
they were taken into account by the Minister. We will also deal with the contention
that dental assistants and dentists would be liable to criminal sanctions in the event
of the remaining regulations remaining extant.

[13] The affidavits filed by the HPCSA and the Chairperson of the Board, in
opposition to the relief sought by SADA, provide a comprehensive account of the
fifteen year history leading to the formulation and promulgation of the regulations in
question 2  and set out the details of what they considered to be an extensive
consultative process. A description is also provided of the statutory structure of
regulation of health related services during the pre-democracy era and of the
evolution of the statutory regime since then, culminating in the Act in its present
form. During the apartheid years and the existence of the then South African Medical
and Dental Council (SAMDC), the Professional Board for Dental Therapy and the
Professional Board for Oral Hygiene were two distinct professional boards.
According to the HPCSA and the Chairperson of the Board the struggle to establish
the Professional Board for Dental Therapy as part of the erstwhile SAMDC was a

2 This appears to be borne out by the plethora of underlying regulations.

long and bruising one. Simply put, it appears that dental therapists faced a struggle
similar to the one alleged by DAASA. During the existence of the SAMDC the
„Council‟ was constituted overwhelmingly or solely of medical and dental
professionals.3 During that period the SAMDC consisted of 34 counsellors4, all of
whom came from medical and dental professions

[14] A sea change occurred with the advent of democracy in South Africa. As
part of the general transformation process an interim SAMDC was created with a
transformative agenda. As a result, ultimately, the Act in its present form came into
being following a number of significant amendments. It transformed the Council and
the professional boards making them more representative, transparent, accessible
and accountable to the greater interest of public health and safety. We will, in due
course, deal in some detail with the legislative evolution.

[15] At this stage it is necessary to consider more closely SADA‟s case, as
presented in its founding affidavit, and to explore more fully several representations it
made to the Minister. At the outset, in attacking the regulations made by the Minister,
SADA categorised the promulgation of those regulations as administrative action and
sought to have them set aside on the basis that, inter alia, the Minister had acted
beyond his powers in making them. It is necessary to set out verbatim their assertion
in this regard:
„[T]he actions of the HPCSA, the Minister and the Board are susceptible to review in terms of
section 33 of the Constitution and provisions of sections 6(2)(a)(i), (b), (c), (d), (e)(i), (e)(iii),
(e)(v), (e)(vi), (f), (h) and (i) of the PAJA [Promotion of Administrative Justice Act 3 of 2000].‟

[16] The series of regulations that were challenged by SADA is set out hereafter:

3 See s 5(1) of the Act in un-amended form.  Note that at the time, the short title of the Act was the
„Medical, Dental and Supplementary Health Service Professions Act'.  It was later changed to the
current „Health Professions Act‟.
4 See the title on „The Medical Profession and Medical Practice‟ by D J McQuoid-Mason and S A
Strauss in 17 Lawsa 1 ed (1983) para 176.

(a)
Regulations relating to the qualifications for registration of dental assistants,
GN R338, GG 27464, as amended by GN R580, GG 31084, 30 May 2008 (the
Original Qualification Regulations). These regulations make provision for the
qualifications required for registration as a dental assistant. Regulation 2(2) provides
that any person who has worked as a dental assistant for a minimum period of five
years prior to 31 March 2002 may apply to the Professional Board for Dental
Therapy and Oral Hygiene (the Board) for registration as a dental assistant and the
board in its discretion may exempt such person from the qualification requirements.
These regulations were then amended on 30 May 2008, to extend the registration
period for those who had previously worked as dental assistants, for a further three
month period from the date of publication of the amendment.
(b)
Regulations relating to the constitution of the Professional Board for Dental
Therapy and Oral Hygiene, GN R1255, GG 31633, 28 November 2008 (the Board
Regulations). These regulations established the Board consisting of 13 members,
two of whom were dental assistants appointed by the Minister.
(c)
Regulations relating to the qualifications for registration of dental assistants:
Amendment, GN R120, GG 35045, 14 February 2012 (the Revised Qualification
Regulations). These regulations again provided that any person who had worked as
a dental assistant for a period of five years prior to the date of these regulations,
without being registered as such, may apply to the board for registration as a dental
assistant and the board could exempt such person from the qualification
requirements. These amended regulations simply extended the period within which
practising dental assistants could be exempted from the qualification requirements.
(d)
Regulations relating to the registration of student dental assistants:
Amendment, GN R395, GG 35363, 21 May 2012 (the Student Qualification
Regulations). These regulations amended previously promulgated regulations
concerning student dental assistants (GN R581, GG 31084, 30 May 2008) with the
effect that persons who had worked as dental assistants for a period of less than five
years, prior to the publication of this amendment, could apply for registration as
student dental assistants within four months of the date of the publication of this
amendment.

(e)
Regulations defining the scope of the profession of dental assistants, GN
R396, GG 35364, 21 May 2012 (the Scope Regulations). These regulations
specified the acts which would be deemed to be acts pertaining to the profession of
dental assistants and thereby defined the scope of work of the profession. While
largely in line with the work DAASA ascribed to dental assistants they are more
extensive and detailed.5

[17] A careful examination of the founding affidavit on behalf of SADA and a
consideration alongside it, of the heads of argument as well as the oral submissions
before us, demonstrates confused thinking on its part. In the affidavit of the principal
deponent on behalf of SADA it sets out what it considers to be the architecture of the
Act. It asserts that in terms of s 17(1) a prerequisite for practising as a health
professional is registration with the HPCSA. In paragraph 20 of the affidavit of the
principle deponent of SADA, the following appears:
„20. Therefore, the [Act] creates a legislative system in terms of which –

5 The acts specified in the Regulations are as follows:
(1) Preparing and managing the dental clinical environment before, during and after patient care;
(2) Sterilising instruments, and disinfecting surfaces and equipment in the dental environment;
(3) Monitoring infection control, sterilisation processes, biological, medical and/or bio hazardous waste
management within the dental environment;
(4) Preparing dental materials and instruments (including dental hand pieces) for use in clinical
procedures performed by the oral health practitioner;
(5) Assisting with the patient‟s needs and comfort during dental treatment;
(6) Providing clinical assistance using four handed dentistry which includes instrument transfer, high
speed suctioning and debridement techniques in procedures that are performed by an oral health
practitioner;
(7) Recording patient data gathered during patient interview, oral assessment of the hard and soft
tissues and oral assessment of other oral structures and during the treatment of the patient;
(8) Processing dental radiographs;
(9) Caring for and maintaining equipment used in the dental clinical environment; and
(10) Assisting the oral health practitioner in the event of a medical emergency in the dental
environment and applying the necessary measures during clinical emergencies.

20.1
a person may only practice certain professions if he or she is registered with the
HPCSA in terms of the [Act] to practice such a profession;
20.2
only those professions recognised in terms of the HPA by the Minister, pursuant to
a decision in terms of section 15(1), attract the obligation of registration by persons
intending to practice those professions; and
20.3
a professional board may only be established in respect of a health profession
which is registrable.‟
In this paragraph SADA has sketched a chicken and egg situation, namely, a
situation in which it is impossible to say which of the two things have to exist first and
which causes the other.6 However, in SADA‟s heads of argument and in submissions
before us, the following was stated:

„The primary challenge to the impugned regulations in this case is a legality one.
The appellant contends that the regulations are ultra vires the [Act] because that Act
provides for a logical sequence in which the creation of a new health profession must
proceed. To the extent that the [Act] permitted of the establishment of a new profession at
all, a register for the new profession must first be created, then a board must be constituted
and finally qualifications must be prescribed. The regulations challenged in this application
did not follow that order and are consequently invalid.‟
As can be seen, the latter contention is that the first step for the recognition and
regulation of a profession is the establishment of a register. As best as can be
discerned, the argument on behalf of SADA from there developed along the following
lines: Although the register for the new profession must be opened as the first step in
the process, there is no express provision in the Act in terms of which a register for
any profession must be opened. Thus, it was argued, there is a lacuna in the Act
and, following on the principle of legality, because of the absence of a provision in
the Act of the first step of registration, the Minister, was precluded from establishing
a profession, setting qualification parameters and otherwise regulating the
profession. Thus, according to SADA, the Minister, in promulgating the series of

6 Defined as „a situation in which it is impossible to say which of two things existed first and which
caused
the
other‟.
„A
chicken
and
egg
situation‟
The
Free
Dictionary
at
http://idioms.thefreedictionary.com/a+chicken+and+egg+situation, accessed on 4 November 2015.

regulations referred to above, acted beyond his powers. The logical consequence of
this contention is that, as things presently stand, no new health profession may be
established at all.

[18] At this stage the chronology of events is important. It is necessary to record
that in March 2000 the Board resolved and recommended to the HPCSA that a
register for dental assistants be established in terms of s 18 of the Act to fall under
the auspices of the Board. In April 2000 the HPCSA resolved that recommendations
by the Board be agreed to. The decision by the council was published in a newsletter
during August 2000 in which the following appears:
„The Professional Board for Dental Therapy and Oral Hygiene recommended and Council
resolved to establish a register for dental assistants in terms of section 18 of the Act, to fall
under the auspices of the Professional Board for Dental Therapy and Oral Hygiene. The said
Professional Board believes that registering dental assistants would in the interest of the
patient, because dental assistants do perform professional dental acts and should therefore
be properly regulated.‟

[19] Before us, counsel on behalf of SADA submitted that although its primary
contention was that there was no statutory power to establish a register, there was in
any event no evidence provided by the respondents that a register had in fact been
established and that the best that they could show was that there was an „in
principle‟ decision to initiate a register for dental assistants. That submission is
fallacious. Counsel on behalf of the Minister, the HPCSA and SADA all pointed to the
statement in the answering affidavit by the National President of DAASA that the
registration of dental assistants began formally in 2006 and that a register continues
to exist. She stated further that there were approximately 2522 dental assistants
registered with the HPCSA and that at least that many dental assistants were
complying with and benefiting from the statutory regime created by the Minister.
Furthermore, in a supplementary replying affidavit, in response to supplementary
answering affidavits, the following two paragraphs on behalf of SADA are relevant:
„86.
However, no register for dental assistants was, in fact, created prior to the
promulgation of the Qualification Regulations. In terms of paragraph 22 of the Minister‟s
further affidavit, the [HPCSA and the Board] allegedly resolved to establish a register for

dental assistants in April 2000. On the second and third respondents‟ own version, however,
in terms of annexure “TEM7” to the HPCSA affidavit, as at 9 April 2001, the establishment of
a register for dental assistants had been approved only in principle and only by the Council.
87.
There is no evidence in the Minister‟s further affidavit or any other affidavit filed by
the respondents and DAASA in this matter, that, prior to the promulgation of the impugned
Regulations –
87.1
dental assisting was a registrable profession;
87.2
a professional board regulating dental assistants had been constituted; or
87.3
registration in respect of dental assisting was a requirement.‟

[20] From what is set out immediately preceding this paragraph, it is clear that
there is an acceptance on behalf of SADA that in fact registration of dental assistants
took place from the time alleged by DAASA, namely 2006. There is in any event no
substantiated challenge by SADA to the assertion on behalf of DAASA in respect of
the dental assistants, that they were in fact being registered from 2006. SADA,
however, maintained its position that any registration that might have taken place
was unlawful, particularly because a register could not be established in terms of the
Act as an empowering provision was lacking.

[21] For completeness, we record that it is clear from an information leaflet,
issued by the Professional Board for Dental Therapy and Oral Hygiene, dated 22
January 2007, encouraging dental assistants to register, that at that time a register
was in existence. The minutes of a meeting of a task team set up to facilitate the
registration and regulation of dental assistants dated 16 April 2007 records that the
actual registration of dental assistants was on-going. The task team was initially set
up as an ad hoc committee during the latter part of 2005 and was initiated by the
Board. It comprised Professor Chikte, Dr Campbell who was at the time the Chief
Executive Officer of SADA, Ms Majake from the Department of Health, Ms Dlamini
and Ms Rhapiri, the President of SADA. The following appears from the minutes of a
meeting of the task team, dated 11 November 2005:
„Noted that the Senior Manager Mr J H Coetzer advised that the Professional Board for
Dental Therapy and Oral Hygiene was approached by the Dental Assistants Association of
South African (DAASA) to initiate the establishment of a register for Dental Assistants. The

Board then started a process of consultation with the relevant stakeholders including
DAASA, the South African Dental Association (SADA) and the Medical and Dental
Professions Board whereafter the regulations relating to the registration of Dental Assistants
were compiled and forwarded to the Minister of Health for promulgation. These regulations
were promulgated on 15 April 2015.‟

[22] In the answering affidavit of the HPCSA and the Chairperson of the Board
the following appears:
„17.7
In appointing this Task Team that was not only led by members of Medical and
Dental Board, but had as one of its members the erstwhile Executive Director of the
Applicant, SADA, the Board hoped to avert any perception that it was not taking the
concerns of dentistry and the private sector employers seriously. Furthermore, the
Board was hopeful that this would minimise any unnecessary delays to the process.
17.[8]
SADA was actively involved in the activities of the Task Team and immediately,
when the unavailability of its Executive Director Dr Campbell begun to slow the
progress of the Task Team, SADA immediately ensured its representation by
replacing Dr Campbell with Dr Tsiu, a qualified dentist and the Vice President of
SADA. A copy of the minutes of the Task Team meeting of 25 November 2005 is
attached hereto and marked Annexure “TEM13”.‟

[23] SADA‟s response, in its replying affidavit, was to deny its active involvement
in the task team. Furthermore, it stated that Dr Campbell and Dr Tsiu did not serve
as representatives of SADA and did not act on its behalf.

[24] The principal deponent on behalf of the Minister was Dr Thamizhanban
Pillay who was the Deputy Director General: Health Regulations and Compliance
Management of the Department of Health. According to him the Minister did have
regard to SADA‟s representations before he finalised the regulations in question. The
Minister was rightly criticised by SADA for not having himself attested to that fact.
However, the Minister subsequently filed an affidavit in which he stated that he
confirmed Dr Pillay‟s assertions. At this stage it is necessary to consider that the
Minister and his department were regrettably slow in providing SADA with the full
record of decision for the purposes of their review application. SADA adopted the

position that the paucity of the record and the absence of any direct written proof that
the Minister had regard to their representations ought to be held against him.

[25] It is also necessary to record that the HPCSA has as one of its professional
boards the Board for the Medical and Dental Profession, which represents the
interests of those two professions. It is axiomatic that a decision of the HPCSA
comprises the view of its constituent boards. This would mean it would comprise the
views of the medical and dental professions.

[26] The chronology in respect of the promulgation of the regulations set out in
paragraph 16 above, spanning the period 15 April 2005 to 21 May 2012, is
significant and ought to be borne in mind not only when the legal issues are
discussed later in this judgment, but when the chronology and nature of submissions
made by SADA to the Minister are dealt with.

[27] We turn now to deal with the representations by SADA and the responses,
or lack thereof. During 2003, 2007 and 2009 a number of proposed regulations by
the Minister were published for general comment. They related to the qualification for
registration of dental assistants and of persons who qualify outside of the Republic
as well as the registration of student dental assistants. SADA participated actively in
commenting on the proposed legislative regime that the Minister intended applying to
dental assistants. SADA was strident in its objections to the creation of such a
legislative regime. It adopted that attitude because of its perspective related to the
task performed by the dental assistants within the scope and ambit of their
employment by dentists. It made its first written representations to the HPCSA on 25
April 2001. We pause to consider the nature and tenor of those representations. In
its first set of representations SADA recorded that although it appreciated the
opportunity to submit comments it placed on record its „disappointment at the fact
that the Board did not see fit to consult with [SADA] as an important stakeholder as
employers of dental assistants . . . prior to circulating the proposals.‟ Significantly –
particularly as SADA has not always been consistent in this – it noted that it
„supports in principle the establishment of a register of dental assistants.‟ SADA then

proceeded to comment on the precision, or otherwise, of the language used in the
proposed regulations. SADA also commented on the substance of the provisions.
The representations consisted of just over three pages and at the end they record a
concern that there may not be sufficient training institutions to train the number of
dental assistants.

[28] SADA is adamant that it received no response to those representations. The
HPCSA, on the other hand, contends that on 11 July 2001 the registrar on behalf of
the Board sent the proposal for the regulation of the profession of dental assistants
to all stakeholders, including SADA. The Board‟s proposed regulations were an
amendment of an earlier draft and incorporated all the comments that had been
received from the stakeholders that had responded. According to the HPCSA and
the Board the letter thanked all stakeholders, including SADA, for the constructive
comments which, according to the Board, served to confirm to the Education
Committee that it was still on the right track with regard to regulating the profession.
SADA denies that it received a response from the HPCSA and points out that no
proof of dispatch or receipt was provided by the HPCSA.

[29] On 10 July 2003 further representations were made by SADA. It recorded,
once again, that it was disappointing that the dental profession had not been
adequately consulted. For the first time SADA records that the Board was not the
correct vehicle to consider applications for registration and conduct examinations of
dental assistants. The following was stated:
„The reconstitution in the name of the proposed Board would be a misnomer in that this
professional board has hitherto been primarily responsible for those auxiliary professions
that carry out limited clinical work which dental assistants do not.‟
SADA records that in its view dental patients are not unduly prejudiced by the
conduct of dental assistants „presently employed‟. It goes on to state that in the
absence of registration requirements and accountability the dentist as employer has
assumed responsibility for the conduct of dental assistants employed by them.

[30] In the representations currently under discussion, SADA reversed its earlier
stance in terms of which it welcomed registration in principle. This time it stated the
following:
„It is not clear whether a dental assistants register is entirely in the interests of the patient.
There is insufficient evidence to suggest that “unregistered” dental assistants have in any
way prejudiced the interests of patients.‟
In these representations SADA adopted a seemingly altruistic stance and submitted
that registration requirements might adversely affect the ability of dental assistants to
find gainful employment „if too many dental assistants are trained at technikons and
enter the marketplace‟. This is in stark contrast to the submissions before us that
there were insufficient training and distance learning institutions to supply the
required number of qualified dental assistants to meet demand. Concern was also
expressed that some dental assistants may leave their employment rather than
comply with registration requirements. SADA submitted that registration would make
dental assistants liable in their own capacity to patients and that insufficient thought
appears to have been given to the implications of vicarious liability for dentists. The
latter representation is difficult to comprehend since it appears self-evident that
presently dentists might in any event be liable vicariously for acts or omissions of the
dental assistants they employ. The following recommendation made at the end of the
representations by SADA also deserves attention:
„Sufficient provision must be made to accommodate the presently employed dental
assistants who are trained by dentists. We suggest a “grandfather clause” be included to
allow trained dental assistants who do not possess “approved qualifications”, to register
within a period of time. This will ensure continuity of employment and retention of acquired
skills, experience and training.‟
SADA received no written response to these representations.

[31] On 19 August 2005 SADA made yet further written representations to the
then Minister of Health, Dr M Tshabalala-Msimang. Right at the outset, SADA
reiterated that the Board had not seen fit to consult with it knowing full well that
dentists were the main employers of dental assistants. It recorded that although the
Board requested its views in 2001 on proposed regulations it had received no further
communications or requests for input until the publication of the regulations in their

final form. It accused the Board of failing to conduct an impartial and analytical
assessment and failing to use objective criteria to develop the proposed registration
regulations. It noted the provisions for compulsory registration of dental assistants
and submitted that:
„[T]hose parts of the regulations that provided for exemption from the qualification
requirements for dental assistants and in particular the minimum period of in-service [on the
job] training of 5 years would cause unintended and undue hardship to both dentists and
dental assistants as employees.‟
SADA proceeded to note that there were limited training institutions for dental
assistants. It also had regard to the provision made:
„for any person who worked as a dental assistant for a minimum period of 5 (five) years prior
to 31 March 2005 to apply for exemption from the qualification requirements and that the
Board may exempt such persons from having to obtain formal qualifications and in its
discretion require applicants to write an examination to test their knowledge.‟
The Board was criticised for its imposition of a five year in-service training period.
SADA submitted that it was arbitrary and capricious. It considered the former
qualification period of one year at training institutions to be excessive, if regard were
to be had to the nature of the work of a dental assistant. No doubt that view would be
seen by DAASA as being patronising and condescending. Once again, SADA stated
that in its view mandatory registration would not lessen the risk of harm to a patient
and stated that it feared for the loss of jobs by dental assistants. In SADA‟s own
representations it recommended that no further mandatory registration be required
until all the implications and consequences were properly considered and a review of
the extent of a grandfather-clause7 in the regulations is undertaken. SADA states
that it received no response on these representations.

7 As noted above, in this context, the grandfather clause refers to recognition being given in the case
of currently practising dental assistants to time spent during on-the-job training in qualifying for
registration as an alternative to acquiring a formal academic qualification.

[32] SADA continued making representations and engaged the HPCSA and the
Minister. On 18 January 2008 SADA made written representations to the Department
of Health regarding regulations relating to the registration of dental assistants and
the qualifications for their registration. Confusingly, this time the following was
recorded:
„We wish to place on record that we accept and support the principle of registering dental
assistants . . . . We have problems however in the detail of how this is to be achieved without
crippling the dental profession.‟
In its replying affidavit SADA was adamant that it „objects to the regulation of dental
assisting at all‟. (My emphasis) Counsel on behalf of SADA‟s attempts, to explain
why SADA should not be considered to be historically schizoid on the basis that the
quotation should be viewed contextually, is without substance. What is demonstrated
above is that SADA vacillated between seemingly expressing support for and
resisting the official registration of dental assistants. In the January 2008
representations, SADA accused the HSCPA of demonstrating „a lack of
understanding of the many practical and logistical problems that have arisen since
the introduction of compulsory registration of dental assistants.‟ It reiterated its
concerns about the paucity of training institutions. SADA recorded its recognition of
the „important role that dental assistants play in increasing the efficiency of a dentist
in delivering quality oral health care‟. It warned, yet again, of the danger of job losses
that would redound in the event of compulsory registration and regulation of dental
assistants. It went on to further accuse the HPCSA of failing to recognise that dental
assistants perform „no clinical services‟ on patients. SADA suggested that the
training time for dental assistants could be severely reduced or compacted. SADA
contended that frequent extensions of grandfather clauses was not the solution. It
was particularly concerned about „the plight of dentists especially in smaller towns
who are unable to find qualified assistants or even assistants with five years or more
training.‟ Lastly, SADA recorded that once proper distance learning opportunities
exist SADA‟s members would be glad to support the grandfather clause.

[33] All, but two, of the written representations referred to above were signed by
Dr N Campbell, mostly in his capacity as Chief Executive Officer of SADA.

[34] SADA insisted that none of their representations referred to were taken into
account by the Minister, the Department of Health or the Board in the drafting and/or
finalisation of the regulations in question. Further representations were made by
SADA on 2 April 2008 and 16 March 2009. The first of these appears to deal in the
main with the auxiliary dental services of dental therapists and oral hygienists, and
displays a resistance to the increasing scope of their professional status. The last, in
the main, contained submissions already made. On 29 November 2010
representations were made to the present Minister of Health in relation to the
registration of dental assistants with the HPCSA. These representations repeat much
of what was contained in prior representations. SADA recorded what it considered to
be problems with the registration process and the problems that might arise upon the
termination of employment contracts of those who were unregistered and stated that
this placed many dentists in an untenable condition in that they would be breaking
the law in that they would be employing unregistered dental assistants. It urged as
an option, retaining the status quo and for a repeal of the regulation regime in its
entirety. As an alternative, it submitted that if the registration for dental assistants
were to be retained, it should be subject to a full review. According to SADA no
response was received to these further representations.

[35] It is necessary at this stage to refer to a letter dated 11 March 2004, by the
Department of Health, addressed to the Board. It dealt with the contemplated
registration of dental assistants, in which the issue of training institutions was raised,
together with hands-on training, and registration compliance being extended by
twelve months. In that letter it was noted that most of these issues „have been
covered in SADA inputs‟. Furthermore, in a letter to the HPCSA dated 24 March
2004, entitled „Regulations relating to the qualifications for registration of dental
assistants and registration of persons qualified outside the republic‟, the Director-
General of the Department of Health enclosed comments received, apparently from
interested parties. The contents of the letter bear repeating:
„Please find enclosed comments.

The major concern raised is that should the regulations be promulgated as they are, most
experienced Dental Assistants would be disadvantaged as the regulations only recognize
formal training. There is no provision made for professionals who received in service training
or who qualified through Distant Learning Institutions.
The Department supports the SAQA policy of Recognition of Prior Learning (RPL) and would
like to draw the Council‟s attention to the fact that the Regulations do not cover this aspect
as far as Dental Assistants with experience but no recognized qualification are concerned.‟

[36] Having sketched the necessary detailed background, we now turn to the
issues for adjudication.

[37] In resisting SADA‟s application, DAASA took a point in limine, namely, that it
was not competent as it had not been brought within the time period prescribed for
review applications under the Promotion of Administrative Justice Act 3 of 2000
(PAJA). Section 7(1)(b) of PAJA provides:
„(1) Any proceedings for judicial review in terms of section 6(1) shall be instituted without
unreasonable delay and not later than 180 days after the date –
. . .
(b)
where no such remedies exist, on which the person concerned was informed of the
administrative action, became aware of the action and the reasons for it or might reasonably
have been expected to have become aware of the action and the reasons.‟

[38] PAJA, does, of course, provide for an application for condonation to extend
the 180 day period. However, despite being alerted by DAASA to the restrictive
provisions of s 7, SADA deliberately chose not to pursue an application for
condonation. It will be recalled that the principal basis for an attack on all the
regulations was that the Minister had acted beyond his power in making them. SADA
classified its review application as one brought in terms of the provisions of PAJA. It
contended that the Minister, in making the regulations, was engaged in
administrative action and it relied expressly on the provisions of s 6(2) which
includes a challenge on the basis that the administrator whose act is being
challenged had acted beyond his or her powers. From the chronology set out in para

16 above, all of the regulations set out in that paragraph, save the Scope
Regulations, are struck by the restrictive provisions of     s 7.

[39] In the court below, Ismail J rejected the submission by counsel on behalf of
SADA that the 180 day restrictive period did not apply when the challenge was
based on the principle of legality as a distinct ground of challenge and as an
alternative to a review brought in terms of s 6 of PAJA. Counsel had submitted that,
properly construed, the challenge was based on that Constitutional principle rather
than on the provisions of PAJA. There is, with respect, no consistent thread in the
judgment of the court below. The following is stated in the four concluding
paragraphs of the judgment of the court below:
„[44]
The time delay aspect has been dealt with above, see Oudekraal Estates (Pty) Ltd v
City of Cape Town and others [par 31] and the New Clicks matter, supra.
[45] I am of the considered view that the prejudice dental assistants would suffer if the
regulations were set aside far outweighs any defects which might exists in the
promulgation of the regulations.
[46] I would recommend that the Minister continues with his regulations in furtherance of
the legislation regarding dental assistants, however, the Minister should afford the
parties a two year moratorium period before the failure to register as dental assistants
would be met with criminal sanctions. This recommendation would equally apply to
hiring dental assistants, by dentists, who are not registered during the moratorium
period.
[47] Accordingly I make the following order:
(1)
The application is dismissed.
(2)
The fourth respondent is joined to this proceedings and its application for
condonation is granted.
(3)
The applicant is ordered to pay the costs of the respondents.‟
It appears then that the application was dismissed on the basis that it was not
brought within the time limits provided for in s 7. However, the court did not deal with
the challenge to the Scope Regulations which was within the time limits provided for
in s 7 of PAJA.

[40] In SADA‟s written heads of argument in this court, it made the following
submissions:
(a)
Although the court a quo dismissed the challenge to the regulations
promulgated in 2008, being the Original Qualifications Regulations and the Board
Regulations, on the delay principle, it is unclear whether the court a quo also
dismissed the challenge to the 2012 regulations, being the Scope Regulations, on
the same basis. If this was the case, it was submitted that the court a quo erred
because the 2012 regulations were promulgated on 21 May 2012 and the application
for their review was instituted on 6 December 2011, within the 180 day period
stipulated in s 7 of PAJA.
(b)
The court a quo ought to have considered the Dental Association‟s challenge
to the 2008 regulations by extending the period in terms of s 9(2) of PAJA as it was
in the interests of justice to do so. It was submitted that there are three reasons for
this proposition:
(i)
The challenge to the 2012 regulations was brought in time and
because these regulations depended in part upon the validity of the
2008 regulations, it was appropriate for the court to also consider the
challenge to the 2008 regulations, despite the delay.
(ii)
The regulations are „qualitatively equivalent to primary legislation‟ to
which the delay rule in PAJA does not apply.
(iii)
Although s 9(2) of PAJA refers to an „application‟ for condonation no
formal application supported by an affidavit is required. It is sufficient
that the request is made informally in the course of the proceedings.

[41] Regarding the argument that the application was brought in terms of the
principle of legality and not PAJA, in oral argument before us, counsel on behalf of
SADA was faced with the decision of this court in City of Tshwane Metropolitan
Municipality v Cable City (Pty) Ltd [2009] ZASCA 87; 2010 (3) SA 589 (SCA), in
which the following was stated (para 10):
„I agree with the appellant‟s contention that the making of regulations by a Minister
constitutes administrative action within the meaning of the Promotion of Administrative

Justice Act 3 of 2000, which must comply with the requirements of this Act in accordance
with the doctrine of legality‟.(footnotes omitted.)
In City of Tshwane, this court followed the decision of the Constitutional Court in
Minister of Health & another NO v New Clicks SA (Pty) Ltd & others (Treatment
Action Campaign & another as Amici Curiae) [2005] ZACC 14; 2006 (2) SA 311 (CC)
para 135, where the following was said:
„It follows that the making of the regulations in the present case by the Minister on the
recommendation of the Pricing Committee was “a decision of an administrative nature”. The
regulations were made “under an empowering provision”. They had a “direct, external legal
effect” and they “adversely” affected the rights of pharmacists and persons in the
pharmaceutical industry. They accordingly constitute administrative action within the
meaning of PAJA.‟ (footnotes omitted.)

[42] Before us, counsel on behalf of SADA was belatedly constrained to concede
that the challenge against the regulations it had brought in the court below fell
properly within the provisions of PAJA and that the application in respect of all the
regulations, save the Scope Regulations, was time-barred. The submission in written
heads of argument that an application for condonation in terms of PAJA did not have
to follow the conventional route was not persisted in. Even though counsel on behalf
of SADA conceded that the only regulations that fell for adjudication were the Scope
Regulations he suggested that without them the remaining structure of the regime
would be unworkable. It appeared that what SADA was intent on doing was to use its
remaining challenge in respect of the Scope Regulations to revisit the challenge it
accepted was time-barred. The primary problem for SADA was that all the
regulations, other than the Scope Regulations, have been in existence since 2008
and continue to exist as a fact until they are set aside.8 Many dentists, dental
assistants and the State must have conducted themselves over many years on the

8 See Oudekraal Estates (Pty) Ltd v City of Cape Town &others [2004] ZASCA 48; 2004 (6) SA 222
(SCA) para 26; and Opposition to Urban Tolling Alliance v South African National roads Agency
Limited [2013] ZASCA 148; [2013] 4 All SA 639 (SCA) para 42.

basis that there was no challenge to the statutory regime9 and would suffer prejudice
if it were now, many years later, to be set aside. However, in dealing with the
challenge to the Scope Regulations, it is necessary to deal with the architecture of
the Act for the purposes of adjudicating the legality of the Scope Regulations, not for
revisiting the regulation in terms of which SADA was time-barred. It is to that task
that we now turn.

[43] In oral argument before us the submission on behalf of SADA was that the
Minister was precluded from putting into effect the Scope Regulations because there
was no provision in the Act that provided for the creation of a register for any
profession. According to SADA, since it must be accepted that one cannot practice a
profession without registration in terms of the Act, dental assistants could not have
their scope of work defined because the Act has no mechanism for a register to be
opened to enable them to be registered. This stance represented a significant shift
from the position adopted in SADA‟s written heads of argument in which it was
contended that no professional board for dental assistants had been lawfully
established and consequently the scope of work of dental assistants could not be
defined. Simply put, the argument now appeared to be that there was no point in
defining the scope of work for a non-existent profession. This shift in tack was
probably prompted because of the time-bar problem faced by SADA.

[44] The long title to the Act reads as follows:
„To establish the Health Professions Council of South Africa and professional boards; to
provide for control over the education, training and registration for and practising of health
professions registered under this Act; and to provide for matter incidental thereto.‟

9 See Harnaker v Minister of the Interior 1965 (1) SA 372 (CPD) at 380B-E dealing with the rationale
for the delay rule at common law in relation to review proceedings.
See also Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaaptstad 1678 (1) SA 13 (A) at 41A-
F.

„Health profession‟ is defined in s 1 of the Act as „any profession for which a
professional board has been established in terms of section 15 and includes any
category or group of persons provided for by such a board‟.

[45] Section 2 established the HPCSA as a juristic person. In terms of s 3 of the
Act the HPCSA has, among its objectives and functions, to „advise the Minister on
any matter falling within the scope of the Act in order to support the universal norms
and values of health professions, with greater emphasis on professional practice,
democracy, transparency, equity, accessibility and community involvement‟. As
stated above, it also has as one of its functions, to co-ordinate the activities of
professional boards in terms of the Act and to act as an advisory and communicatory
body for such professional boards.10 Importantly s 3(c) of the Act provides:
„The objects and functions of the council are –
. . .
(c)
to determine strategic policy in accordance with national health policy as
determined by the Minister, and to make decisions in terms thereof, with regard to the
professional decisions in terms thereof, with regard to the professional boards and the health
professions, for matters such as boards and the health professions, for matters such as
finance, education, training, registration, ethics and professional conduct, disciplinary
procedure, scope of the professions, inter-professional matters and maintenance of
professional competence.‟

[46] Section 4 of the Act sets out the powers of the HPCSA and includes the
power, after consultation with the relevant professional board, to „consider any
matter affecting the health professions registrable under [the] Act and, consistent
with national health policy determined by the Minister, make representations or take
such action in connection therewith as [it] deems necessary.11 It also has the power
to „delegate to any professional board or committee or any person such of its powers

10 See ss 3(a) and (h) of the Act.
11 Section 4(c).

as it may determine‟.12 It also has the wider power to „perform such other functions
as may be prescribed, and do all such things as [it] deems necessary or expedient to
achieve the objects of [the] Act within the framework of national health policy
determined by the Minister‟.13 The HPCSA consists of, inter alia, not more than 16
persons designated by the professional boards.14

[47] Sections 15(1) and (2) of the Act read as follows:
„(1) The Minster shall, on the recommendation of the council, establish a professional board
with regard to any health profession in respect of which a register is kept in terms of this Act,
or with regard to two or more such health professions.
(2)
The Minister may, on the recommendation of the council, reconstitute the
professional boards with regard to the health professions for which the boards have been
established, and establish other boards.‟

[48] Section 15A sets out the objects of a professional board. They are, amongst
others, to consult and liaise with other professional boards on matters affecting them
and to assist in the promotion of the health of the population of the country on a
national basis. It is envisaged that they are enabled to make representations to the
HPCSA, to advise the Minister „on any matter falling within the scope of this Act as it
relates to any health profession falling within the ambit of the professional board in
order to support the universal norms and values of such professional professions
with greater emphasis on professional practice, democracy, transparency, equity,
accessibility and community involvement‟.15 A notable power of a professional board
in performing its regulatory power is set out in s 15B(1)(a), which states:
„A professional board may –

12 Section 4(e).
13 Section 4(f).
14 Section 5(1)(a).
15 Section 15A(e).

(a)
in such circumstances as may be prescribed, or where otherwise authorised by this
Act, remove any name from a register or, upon payment of the prescribed fee, restore
thereto, or suspend a registered person from practising his or her profession pending the
institution of a formal inquiry in terms of section 41; . . . .‟

[49] Section 18 of the Act provides for the keeping of a register. Section 18(1)
provides:
„(1) The registrar shall keep registers in respect of persons registered in terms of this Act,
and must enter in the appropriate register the name, relevant contact details, qualifications,
date of initial registration and such other particulars (including the registration category in
which they hold registration and the name of their speciality, subspeciality, professional
category or categories, if any) as the relevant professional board may determine, of every
person whose application for registration in terms of s 17(2) has been granted.‟

[50] Section 24 of the Act provides that the Minister may on the recommendation
of the HPCSA make provisions for the requisite qualification that entitles a person to
be registered.

[51] Section 33(1), which is particularly pertinent to the issues in dispute, reads:
„(1)
The Minister may, on the recommendation of the council and the relevant
professional board, by regulation define the scope of any health profession registerable in
terms of this Act by specifying the acts which shall for the purposes of the application of this
Act be deemed to be acts pertaining to that profession: Provided that such regulations shall
not be made unless any professional board established in terms of section 15 in respect of
any profession which may in the opinion of the Minister be affected by such regulation, has
been given an opportunity of submitting, through the council, representations as to the
definition of the scope of the profession in question: Provided further that if there is a
difference of opinion between the council and such professional board as to the definition of
the scope of the profession concerned, the council shall mention this fact in its
recommendation.‟

[52] The long title of an Act can serve the purpose of showing the object or
purpose of the Act.16 It is clear from the long title that the object of the Act is to
provide for the regulation of a health profession through the HPCSA and
Professional Boards and to make provision, amongst others, for the registration of
health professionals.

[53] The scheme of the Act is such that the Minister is advised by the HPCSA on
whether to establish a Professional Board with regard to any health profession.17 The
provisions of s 15(1) appear in paragraph 47 above. SADA submitted that a reading
of that subsection leads to the ineluctable conclusion that the establishment of a
register for that profession is a prerequisite to the establishment of a professional
board. We disagree. There would, as a matter of logic, be no point to establish a
register for a profession that has not yet come into being. It is sequentially
incongruent. At best for SADA the decisions could be made simultaneously and the
Board and its register could come into existence at the same time. Section 12, the
provisions of which are referred to above, envisages that a registrar is appointed by
the Minister. In prior incarnations the Act provided for the HPCSA to appoint a
registrar. In terms of s 12(2) the registrar is the accounting officer and secretary of
the HPCSA and of each professional board and is obliged to carry out the functions
and duties imposed by the Act. Section 18, the provisions of which have already
been referred to, obliges the registrar to keep registers in respect of persons
registered in terms of this Act and to enter the name and other relevant details,
including the registration category.

[54] These provisions, all read together purposively, when practically applied,
must mean that a register shall be kept either consequent to or attendant upon a

16 Bhyat v Commissioner for Immigration 1932 AD 125 at 129. See also SA Railways and Harbours v
Edwards 1930 AD 3 and G E Devenish Interpretation of Statutes 1 ed (1992) at 105.
17 Section 15 of the Act.

decision to establish a professional board. In the present case, the Minister
reconstituted the Board to include dental assistants within its ambit and as
demonstrated above a register was kept, certainly at a time before the Scope
Regulations were promulgated. We also know that more than 2000 dental assistants
have already been registered.

[55] There is thus in our view no substance to the submission by SADA that no
provision is made in terms of the Act for the opening of a register for any profession.
In any event, if one were to follow the submission on behalf of SADA, the Act would
be unworkable and no new health profession could be established. This would have
the effect of rendering the Act nugatory. As already alluded to, the establishment of
the board and all the other regulations are beyond review.

[56] The heading of s 33 of the Act, which deals with the powers of the Minister to
create regulations that define the scope of dental assistants, bears the following title:
„Definition of scope of other health professions registrable in terms of this Act and
registration of certain persons.‟
This might have been an additional prompt for the stance adopted by SADA.
However, sequentially it makes sense to first establish a board for a particular
profession and then, if the Minister were to elect to exercise the powers referred to in
s 33, to first define the scope of the profession before the obligation to register kicks
in. The unassailable logic must be that one would have to first consider whether one
falls within the scope of that health profession in order to decide whether one is
obliged to register or not. Put differently, regulation cannot occur and compliance
cannot be ensured until and unless the scope of the profession has been defined.
What now requires to be addressed are two further submissions on behalf of SADA:
that the Minister failed to take into account its written representations which warned
about the possibility of large scale unemployment amongst dental assistants, as well
as the real threat of criminal prosecutions faced by dentists and dental assistants.

[57] As set out in para 35, the inputs of SADA were considered in the draft
regulations. In addition, on 5 April 2005, as SADA expressed its concerns regarding

the draft qualification regulations, the HPCSA in a letter dated 13 June 2005 that
individual dental assistants who had not obtained their qualification from a University
of Technology, will be subjected to an examination set by the Board, alternatively
they would be exempted from sub-regulation (2). In terms of the draft qualification
regulations, it was stipulated that the HPCSA would be an examining authority for
the formal qualification in dental assisting. In addition, in terms of s 25(2) of the Act,
provision was made for a person who applied for registration to pass to the
satisfaction of the Board an evaluation to determine whether such person possessed
adequate professional knowledge, skill and competence to be admitted to
registration as a dental assistant. It is therefore clear that from the outset the Minister
as well as the HPCSA were well aware of the dangers of unemployment and
potential criminal sanctions to be imposed upon unregistered dental assistants and
made adequate provisions in the qualification regulations as well as the Act to cater
for any such eventuality. The fact that solutions were provided for the potential
problem clearly indicates that the Minister considered the issue right from the outset.
Moreover, what should not be lost sight of is that dentists‟ interests nationally are
advanced within the HPCSA, through the Medical and Dental Board. Furthermore,
we take a dim view of the nondisclosure in SADA‟s founding affidavit, of Dr Campbell
and Dr Tsiu‟s involvement in the task team in which the matters currently up for
discussion were debated and supported. In these circumstances to suggest that
SADA‟s views were not considered is disingenuous. As demonstrated above the
threat of criminal sanctions is more imagined than real. Finally, from the evolution of
the statutory regime created by the regulations it is palpably clear that SADA‟s views
had been taken into account. The steps taken by the Minister, the HPCSA and
SADA is in line with a world-wide trend to regulate health related professions in the
public‟s interest.18

18 For example, the World Health Organisation made the following recommendations in 2013: „The
regulation of health professions education must therefore ensure that physicians, nurses, midwives
and other allied health providers receive a quality education that prepares them to provide safe,
competent and ethical care, are certified or licensed upon entry to professional practice and maintain
competency throughout their active clinical careers.‟ See, for example, World Health Organisation

[58] For all the reasons set out above, the appeal must fail. It was submitted on
behalf of SADA that in the event of its failure in this appeal, it was in any event
protected against an adverse costs order in terms of the order by the Constitutional
Court in Biowatch Trust v The Registrar, Genetic Resources & others [2009] ZACC
14; (2009) 6 SA 232 (CC) para 21, where it was noted that „as a general rule in
constitutional litigation, an unsuccessful litigant in proceedings against the State
ought not to be ordered to pay costs‟. However, in that case the Constitutional Court
said the following at para 20:
‟20.
Nevertheless, even allowing for the invaluable role played by public interest groups
in our constitutional democracy, courts should not use costs awards to indicate their
approval or disapproval of the specific work done by or on behalf of particular parties
claiming their constitutional rights. It bears repeating that what matters is not the nature of
the parties or the causes they advance but the character of the litigation and their conduct in
pursuit of it. This means paying due regard to whether it has been undertaken to assert
constitutional rights and whether there has been impropriety in the manner in which the
litigation has been undertaken. Thus, a party seeking to protect its rights should not be
treated unfavourably as a litigant simply because it is armed with a large litigation war-chest,
or asserting commercial, property or privacy rights against poor people or the State. At the
same time public-interest groups should not be tempted to lower their ethical or professional
standards in pursuit of a cause. As the judicial oath of office affirms, judges must administer
justice to all alike, without fear, favour or prejudice.‟ (footnote omitted.)
And further, para 24:

(2013) Transforming and Scaling up Health Professional Education and Training – Policy Brief on
Regulation of Health Professions Education at iv, available at http://www.who.int/hrh/resources/
transf_scaling_hpet/en/, accessed 11 November 2015. With regard to dental assistants specifically, it
is worth noting that in a number of comparable jurisdictions, registration is required and/or the
profession is regulated to a greater or lesser degree. Some examples are as follows. In certain
Australian states, dental assistants who operate dental radiography equipment are required to obtain
a certificate and be registered. In the United Kingdom, a dental nurse (which is comparable to a
dental assistant in South Africa) must be in possession of an approved certificate or diploma and be
registered. In certain American states, dental assistants must be registered and/or must graduate
from an accredited program and pass a state exam. In certain countries within the European Union,
dental assistants are required to complete an accredited training course, thought there is no
registration requirement (eg Austria, the Czech Republic, and Poland).

‟24.
At the same time, however, the general approach of this court to costs in litigation
between private parties and the State, is not unqualified. If an application is frivolous or
vexatious, or in any other way manifestly inappropriate, the applicant should not expect that
the worthiness of its cause will immunise it against an adverse costs award.‟ (footnote
omitted.)

[59] We will bear in mind what was referred to immediately above in dealing with
the facts of this case. As set out earlier in this judgment, SADA adopted an
inconsistent attitude towards the professional regulation of dental assistants. First, it
was equivocal about the envisaged statutory regulation of dental assistants; then
committed in principle to the recognition of dental assistants as professionals; and,
finally, after many years, it assumed an adamant and resistant attitude to the
regulation of dental assistants as professionals. As stated in paras 22 and 23 above,
SADA failed to disclose that high ranking officials within its ranks engaged as
members of the task team with the issues they were concerned about and
apparently in support of a statutory regime. In addition, when alerted to the time-bar
provision of PAJA, SADA nevertheless elected not to pursue an application for
condonation. Faced with the time-bar, SADA contrived an argument in an effort to
revisit decisions that were beyond review. In our view, this conduct in the litigation
leading up to the present appeal should count against it. Throughout the litigation,
SADA also maintained a condescending and patronising attitude with regard to
dental assistants, even adopting the contradictory, if not disingenuous, stance of
claiming to act in their best interests while at the same time failing to cite the largest
organisation representing that profession, and ultimately in fact going so far as to
oppose their intervention as a party in the litigation on the basis that they lacked
locus standi. It is not insignificant that of all the litigant parties, DAASA‟s members
are without doubt the most financially vulnerable. All of these factors have to be seen
against the emphatic assertion by counsel on SADA‟s behalf that it was committed to
democratic principles and against the allegations in its founding affidavit of its
concern for the welfare of dental assistants. SADA‟s attitude to DAASA‟s intervention
is ironic and deplorable. Before us, right at the outset, counsel for SADA was asked
to consider whether the attitude adopted by it did not have the potential for a public
relations disaster. SADA‟s attitude was to reiterate that it was an adherent to the

principle of legality and should be lauded for its efforts rather than criticised. For the
reasons set out earlier in this paragraph, we disagree.

[60] The following order is made:
1. The appeal is dismissed with costs, including the costs of two counsel where
employed by each of the respondents.

M S Navsa

Judge of Appeal

K G B Swain

Judge of Appeal

WILLIS JA:
[61] I have had the privilege of reading the draft judgment prepared my brothers
Navsa and Swain. I agree with the order that they have proposed as well as their
reasoning, except for what appears in paragraph 59. The stance of SADA may have
been unfortunate. Its attitude towards the registration and regulation of dental
assistants may also have been less than astute and even unwise.  This does not
entail that its attitude has been „condescending‟, or „patronising‟ or „disingenuous‟ or
„deplorable‟  to the extent that it deserves moralistic censure from this court.

[62] It needs to be clear that the appellant has failed in this case because the law
is against it and not because judges are, necessarily, inherently enthusiastic
„regulators‟. Our personal views should, ordinarily, be irrelevant. It is not, however,
entirely irrelevant or undeserving of judicial comprehension that the dental profession
has functioned fairly well for decades, if not centuries, without the benefit of the
regulation of the occupation of dental assistants. Teeth have, by and large,
successfully been extracted, drilled, filled, replaced with implants and crowns and so

on, without there being a register of dental assistants. We have survived the
discomforts of the dentist‟s chair with some grins and plenty of forbearance,
unassisted by the regulation of dental assistants.

[63] The notion that SADA should be excused from an award of costs if it lost the
appeal seems to have been an afterthought: it was not even raised in its heads of
argument. When confronted with this by the court, Mr Leech, SADA‟s counsel,
demurely replied that he had never even considered that SADA might lose.

[64] The award of costs in this case requires no judicial fulmination. The
principles relating to the strict application of the 180 day guillotine in respect of
bringing applications for review in terms of PAJA are now trite. The late bringing of
the application has been the unanswerable reason why the SADA cannot succeed,
even though there are other substantive issues that operate against it. It cannot be
said, in the words of Biowatch, that this application was „fresh constitutional terrain
for all‟ or that „all the parties have had to feel their way‟ or that the State has been
shown „to have failed to fulfil its constitutional and statutory obligations‟.19 For this
reason, the ordinary principles relating to the award of costs in litigation should
apply.
_____________________
N P Willis
Judge of Appeal

19See paragraphs 56 to 59 of Biowatch.

APPEARANCES:

For Appellant:
B Leech SC (with K Hofmeyr)

Instructed by:

Werksmans Attorneys, Pretoria

Symington & de Kok, Bloemfontein

For First Respondent:
N H Maenetje SC (with R Tulk)

Instructed by:

The State Attorney, Pretoria

The State Attorney, Bloemfontein

For Second and Third Respondents:
M Sikhakhane

Instructed by:

Moduka Attorneys, Pretoria

Matsepes Inc., Bloemfontein

For Fourth Respondent:
C R Jansen SC (with G Snyman)

Instructed by:

Lawyers for Human Rights, Pretoria

Webbers Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

24 November 2015

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

South African Dental Association v Minister of Health (20556/2014) [2015] ZASCA 163

MEDIA STATEMENT

Today the Supreme Court of Appeal (SCA) dismissed an appeal by the South African Dental
Association (SADA) and upheld the order of the Gauteng Division of the High Court, Pretoria.  In the
result, the SCA confirmed the validity of regulations made by the first respondent, the Minister of
Health, in terms of the Health Professions Act 56 of 1974, inter alia recognising dental assistants as a
profession, and defining the scope of that profession.

SADA challenged the validity of the regulations on a number of grounds, being (i) that the Minister
had no statutory power to make the regulations in question; (ii) the Minister failed to take into account
written representations by SADA; and (iii) the Minister’s actions in promulgating the regulations were
irrational.

SADA’s challenge was opposed by the Health Professions Council of South Africa (the second
respondent), the Professional Board for Dental Therapy and Oral Hygiene (the third respondent) and
the Dental Assistants Association of South Africa (the fourth respondent, DAASA).

SADA’s challenges were all based on the provisions of the Promotion of Administrative Justice Act 3
of 2000 (PAJA).  However, in respect of all but one of the regulations challenged, its application was
instituted significantly outside of the time period required in terms of s 7(1) of PAJA.  As SADA had
not applied for condonation for this failure to comply with the requirements of PAJA, it was time-
barred, and the SCA rejected the challenges to these regulations.

The remaining regulation defined the scope of the profession of dental assistants.  SADA argued that
the Minister was not empowered to make such a regulation, because the Act did not empower him to
open a register for a new health profession, and there could be no definition of the scope of a
profession for which there was no register.  The SCA rejected this argument, as it would make the Act
unworkable and no new health profession could be established. This would have the effect of
rendering the Act nugatory.

The SCA accordingly rejected SADA’s challenges to the regulations promulgated by the Minister, and
dismissed the appeal.  In ordering that SADA pay the costs of the respondents, the SCA explained
that the manner in which SADA had conducted the litigation was open to criticism.  For example,
although claiming to represent the interests of dental assistants, SADA initially failed to join DAASA,
the largest dental assistants’ organisation, and then when DAASA sought leave to intervene, SADA
opposed that application.

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