THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 116/2012
Reportable

In the matter between:

EMERGENCY MEDICAL SUPPLIES AND
TRAINING CC (Trading as EMS)                                        APPELLANT

and

HEALTH PROFESSIONS COUNCIL OF
SOUTH ARICA                                                       FIRST RESPONDENT

PROFESSIONAL BOARD FOR EMERGENCY
CARE PRACTITIONERS                                SECOND RESPONDENT

Neutral citation: EMS v Health Professions Council of SA (116/2012)
[2013] ZASCA 87 (31 May 2013)

Coram:
Mthiyane DP, Maya and Shongwe JJA and Erasmus and
Mbha AJJA

Heard:
9 May 2013
Delivered:
31 May 2013

Summary: The nature of the appeal created by s 20 of the Health Professions Act 56
of 1974 ─ whether it is a wide appeal or a restricted appeal, ie an appeal in the
ordinary sense.

_____________________________________________________________________

ORDER

On appeal from: Western Cape High Court, Cape Town (Hlophe JP and
Zondi J sitting as court of first instance):

The appeal is dismissed with costs including the costs of two counsel.
___________________________________________________________

JUDGMENT

MTHIYANE DP (MAYA, SHONGWE JJA, ERASMUS AND
MBHA AJJA CONCURRING):

[1] This appeal is against a judgment and order of the Western Cape
High Court (Hlophe JP and Zondi J) dismissing the appellant’s appeal in
terms of s 20 of the Health Professions Act 56 of 1974 (the Act) against
the decision of the second respondent, the Professional Board for
Emergency Care Practitioners (the Board), to withdraw the appellant’s
accreditation. With the leave of the high court the appellant appeals to
this court.

[2] The appeal follows an earlier appeal to this court by the
respondents against the judgment and order of the Western Cape High
Court, in which Motala J and Manca AJ had held that an appeal under s
20 of the Act is a wide appeal which is not confined to the record which
served before the Board. The appeal was struck from the roll on the basis
that the matter was not properly before the court. Leave had been granted
on the question whether the s 20 appeal was a wide appeal or a narrow
appeal. In granting leave to appeal the learned judges had left out of

account issues such as the ‘the merits of the appeal itself, the striking out
application, and the contentions as to the record’. The case is reported as
Health Professions Council of South Africa & another v Emergency
Medical Supplies and Training CC t/a EMS 2010 (6) SA 469 (SCA). For
convenience I shall refer to the appeal to this court against the decision of
Motala J and Manca AJ, as ‘the earlier appeal’.

[3] There are two questions that require consideration by the court in
the present appeal. The first is whether this appeal is properly before the
court, given that the earlier appeal on the same issue was struck from the
roll. The second question is whether the appeal created by s 20 of the Act
is a wide appeal or a narrow appeal. If this court concludes that s 20
creates a wide appeal then in that event it should have regard not only to
the merits of the case but to the review grounds relied on by the appellant,
such as bias and conflict of interest on the part of the Board members
when the decision to withdraw its accreditation was made, as well as
other review grounds raised by the appellant. But if on the other hand a
conclusion is reached that s 20 of the Act creates a narrow appeal, ie an
appeal in the ordinary sense, the consideration of the appeal by this court
will be confined to the merits of the appeal. However, it will be limited to
the evidence or information on which the Board’s decision was based.
The only determination will then be whether that decision was right or
wrong.

Factual background
[4] In 1999 the appellant applied to the Board for approval to conduct
training of emergency care practitioners ─ the so called paramedics ─ in
four basic ambulance assistance (BAA) courses, three ambulance
emergency assistance (AEA) courses and subsequently between

November 2002 and February 2003, one critical care assistance (CCA)
course. The appellant’s applications for accreditation were granted. By
the end of 2004 the Board discovered that the appellant conducted
training well beyond its original accreditation. The appellant was now
offering training in 11 BAA courses, five AEA courses and two CCA
courses without having obtained approval from the Board to extend the
scope of its accreditation. The Board conducted an investigation into the
matter and also discovered that the facilities, the equipment and the
standard of the offered training were well below par. In November 2006
the Board conducted an examination of the appellant’s students in the
CCA discipline. The students performed poorly. In the same month the
appellant’s accreditation was withdrawn by the Board. This led to an
appeal to the high court in terms of s 20 of the Act which was then
considered by Motala J and Manca AJ.

Is the appeal properly before this court?
[5] Against the above background I turn to a discussion of the issue
whether the present appeal is properly before this court. Counsel for the
appellant submitted that it is not competent for this court to adjudicate on
the question whether the s 20 appeal is a wide appeal or a narrow appeal
as this issue was disposed of in the earlier appeal. This argument is
clearly without merit. On a proper reading of the judgment it is clear that
the court in the earlier appeal refused to hear the appeal piecemeal, given
that there were outstanding issues which also formed part of the s 20
appeal and which could still come before this court on appeal. Leave to
appeal had been granted by Motala J and Manca AJ only on the question
whether the s 20 appeal is a wide appeal or a narrow appeal. The matter
was struck off the roll and there was therefore no final determination of
the issue which would have entitled the appellant to raise a plea of res

judicata. I conclude therefore that the question is still open for
adjudication and that it is competent for this court to deal with it.

Section 20 appeal: wide or narrow appeal?
[6] I turn now to the question whether the appeal created by s 20 of the
Act is a wide appeal or a narrow appeal, ie an appeal in the ordinary
sense. Before doing so it is necessary to briefly discuss how the two
courts below approached the matter. Motala J and Manca AJ adopted the
view that the appeal under s 20 was a wide appeal and that the court was
therefore not restricted to the information that was before the Board when
it made its decision. Having come to this conclusion the learned judges
concluded that they were entitled to have regard to the review grounds
relied on by the appellant. Hlophe JP and Zondi J aligned themselves
with the view that the s 20 appeal was indeed a wide appeal but refused to
hold that it was wide enough to include consideration by the court of the
review grounds contended for by the appellant. The learned judges
expressed themselves as follows:
‘In our view when Motala, J and Manca, AJ held that an appeal under section 20 is a
wide appeal, they could not have meant an appeal of the nature contended for by the
appellant.’
The judges went on to state that this ─ meaning this case ─ was not a
review but an appeal and therefore the court could only concern itself
with the merits of the matter. They aligned themselves with the remarks
of Cameron JA in Rustenburg Platinum Mines Ltd (Rustenburg Section) v
Commission for Conciliation, Mediation and Arbitration 2007 (1) SA
576 (SCA) where the judge of appeal remarked (para 32) that the merits
may sometimes intrude in review proceedings but that this did not
obliterate the distinction between an appeal and a review. In my view the
judges in the court below were no doubt correct in their finding that there

is a clear distinction between an appeal and a review and therefore cannot
be faultered in that regard. See also Bato Star Fishing (Pty) Ltd v Minister
of Environmental Affairs & others 2004 (4) SA 490 (CC) para 45.
Notwithstanding that stance, however, they proceeded to deal in detail
with the review grounds advanced by the appellant in its appeal under s
20 of the Act, namely, appellant’s contentions that an incorrect body took
a decision to withdraw its accreditation; that the Board was biased in that
it prejudged the issue; and that there was a material conflict on the part of
the members of the Board. It seems to me that the court below having
found that the appeal under s 20 was limited to the merits, the need to
consider the review grounds raised by the appellant fell away.

[7] Section 20 affords a person aggrieved a right of appeal and
provides as follows:
‘20 Right to a appeal
(1) Any person who is aggrieved by any decision of the council, a professional board
or a disciplinary appeal committee, may appeal to the appropriate High Court against
such decision.
(2) Notice of Appeal must be given within one month from the date on which such
decision was given.’

[8] In Health Professions Council of SA v De Bruin [2004] 4 All SA
392 (SCA) para 23, this court authoritatively decided that an appeal to the
high court created by s 20 of the Act was an appeal in the ordinary sense,
ie ‘a rehearing on the merits but limited to the evidence or information on
which the decision under appeal was given, and in which the only
determination is whether the decision was right or wrong’. De Bruin was
followed and applied by this court in De Beer v Raad vir
Gesondheidsberoepe van Suid-Afrika 2007 (2) SA 502 (SCA). In De Beer

the argument that the appeal in s 20 of the Act was a review was rejected
as being clearly wrong (see paras 25-26).

[9] Motala J and Manca AJ refused to follow and apply De Bruin.
They adopted the view that De Bruin was distinguishable on the facts
from this case and advanced two reasons for that conclusion. The first
was that the decision in De Bruin and the cases referred to therein dealt
with an appellant who had sought to appeal against a decision which had
been taken consequent upon a disciplinary hearing. In each case, said the
learned judges, the disciplinary proceedings had been recorded and there
was difficulty in determining what constituted the record of the
proceedings. The second reason was that the decision was taken in the
absence of the interested person. This line of reasoning found favour with
Hlophe JP and Zondi J who said in their judgment, that there was no
reason why they should deviate from the judgment of Motala J and
Manca AJ in regard to the nature of the appeal.

[10] In my view the reasons advanced by Motala J and Manca AJ that
this case is distinguishable from De Bruin do not withstand scrutiny. In
the present matter there was a record which served before the learned
judges when they considered the s 20 appeal. There was, for example
Form 169 on which the appellant applied for accreditation. There was
also correspondence and other documentation relevant to the appellant’s
application. There were furthermore affidavits before the judges
explaining the context in which the documentation had been submitted. I
therefore do not agree that there was no record in this matter on which the
appeal could have been considered on the merits. As to the second ground
relating to the absence of an interested person, it with respect, appears to
be a bit of a red herring. There was no necessity for the parties to appear

in person in the present matter. The appeal was conducted through their
representatives and the documentation filed by the respective parties. In
any event none of the parties in this matter would have been capable of
appearing in person. In my view De Beer and De Bruin were correctly
decided and this court is bound by them. It has not been shown that the
two cases were wrongly decided.

[11] In the view which I take of the matter, namely that an appeal
created by s 20 is a narrow appeal, ie an appeal in the ordinary sense, it is
necessary to consider the grounds advanced by the appellant on the
merits.

The merits
[12] In this regard two main issues require consideration. The first
concerns the correctness or otherwise of the decision of the Board to
cancel the appellant’s accreditation. The second concerns the decision
relating to the November 2006 examination. Regarding the first issue the
essence of the complaint against the appellant was that it offered training
beyond its originally approved accreditation. When the appellant applied
for accreditation in 1999 it indicated on Form 169 that it intended to
conduct training in four BAA courses. On 29 July 1999 the Board caused
the appellant’s premises to be inspected and a pre-accreditation report
was compiled. These were considered by the Board on 27 October 1999
and the appellant was informed by a letter dated 8 November 1999 that its
application for accreditation had been granted.

[13] On 10 November 1999 the appellant applied again for accreditation
for three AEA courses. On 12 and 13 July 2000 the Board’s
representatives inspected the appellant’s premises and thereafter

compiled a pre-accreditation report. After considering the matter, the
Board approved the application for accreditation and conveyed its
decision to the appellant by way of a letter dated 30 October 2000.

[14] Between November 2002 and February 2003 the appellant applied
again on the prescribed Form 169 for accreditation to conduct training in
one CCA course. During May 2003 the premises of the appellant were
inspected and a pre-accreditation report was compiled and handed to the
Board. The appellant was subsequently informed by way of a letter that
its accreditation had been granted, subject to its CCA examinations being
moderated by the Board’s education committee member, Mr Dhai. The
appellant’s accreditation was confirmed on 17 November 2003 at a
meeting of the Board.

[15] By the end of 2004 the appellant was, contrary to its original
accreditation, conducting training in 11 BAA courses, five AEA courses
and two CCA courses. The Board’s complaint was that the appellant
deviated from its original accreditation of four BAA courses, three AEA
courses and one CCA course. This was what the appellant originally had
applied and had been granted accreditation for.

[16] The matter became a subject of various correspondences between
the Board and the appellant from 2005 to 2006 and culminated in the
Board revoking the appellant’s accreditation in all the courses in which it
conducted training. The Board has maintained throughout that the
appellant was conducting training beyond its accreditation and that
despite bringing this to the attention of the appellant, the latter simply
ignored this fact and proceeded with training beyond its accreditation.

[17] In argument on appeal before this court counsel for the appellant
did not dispute that the appellant offered more courses than those for
which it had been granted accreditation. The submission advanced on the
appellant’s behalf was that the letters from the Board granting the
appellant accreditation did not limit the number of courses the appellant
could offer in any of the three disciplines, namely BAA, AEA and CCA.
In my view the submission is without merit. The appellant applied for
accreditation to offer training in a specified number of courses and there
is no reason to think that when accreditation was granted it entitled the
appellant to offer more courses than those applied for. The appellant’s
conduct in conducting training in more courses than those applied for was
contrary to the provisions of s 16(1) of the Act, which reads as follows:
‘(1) Notwithstanding anything to the contrary in any other law contained but subject
to the provisions of the Nursing Act, 1978 (Act 50 of 1978), no person or educational
institution, excluding a university or a technikon, may offer or provide any training
having as its object to qualify any person for the practising of any profession to which
the provisions of this Act apply or for the carrying on of any other activity directed to
the mental or physical examining of any person or to the diagnosis, treatment or
prevention of any mental or physical defect, illness or deficiency in man, unless such
training has been approved by the professional board concerned.’

[18] There were other reasons why the Board decided to withdraw the
appellant’s accreditation, such as insufficient equipment, failure to keep
logbooks and the general poor quality of training. I do not intend to deal
with these reasons, because of the finding in the preceding paragraph that
the appellant’s conduct fell foul of the provisions of s 16(1) of the Act.

[19] This brings me to the November 2006 examination as one of the
reasons which led to a decision to revoke the appellant’s accreditation. I
have already indicated that the Board alleged that the quality of training

offered by the appellant was unacceptable to the Board. In support of this
allegation the Board relied on a number of reports including that of a
Board member Mr James Bowen. His November 2006 report noted that
the students who sat for the November 2006 examinations, which was set
by the Board, lacked a deep understanding of theoretical knowledge and
described the grasp of the subjects by the students as superficial. On 7
November 2006 the Executive Committee passed a resolution authorising
the Chairperson of the Education Committee to appoint examiners to
conduct the examinations of the appellant as and when there was
completion of a particular course which required examination. Ms D
Muhlbauer was appointed as the chief examiner to conduct the
appellant’s CCA final examination. Mr Bowen was appointed as the
moderator.

[20] On 15 November 2006 Ms Muhlbauer obtained the Objective
Structure Clinical Examination (OSCE) sheets intended for use in the
CCA examinations from Dr TH Stevens, the appellant’s medical director
and CCA co-ordinator. Upon perusal thereof, she noted that the OSCE
sheets did not cater for all the examinable skills, with no less than 14
skills missing. When she took this matter up with Dr Stevens, she was
advised that the OSCE sheets forwarded to her were in respect of the
skills that the appellant had decided to examine the students on and the
skills that the students had practised for their finals. Dr Stevens also
indicated that the students had been taught four of the 14 skills that Ms
Muhlbauer considered to be missing from the OSCE sheets, with the rest
of the skills having been taught to the students in their hospital phase and
therefore not examined during the OSCE.

[21] From the above it was clear to the Board that the students were not
taught by the appellant in all the skills that they were required to be
proficient. The upshot of this was that none of the students passed the
long question paper, where the highest mark was 41 per cent and the
lowest mark was 22 per cent. Again in the OSCE assessments none of the
students passed the examinations, the pass mark being 75 per cent.
However four students passed the short question paper, four failed the
oral evaluations and only two students were found to be competent in the
simulations. A conclusion was reached that it would be futile to allow any
of these students a reassessment without proper remedial action. Mr
Bowen in his moderation report repeated much of what Ms Muhlbauer
stated in her report. As already indicated above, he concluded that the
students appeared to lack a deep understanding of the theoretical
knowledge and that there was a superficial grasp of the subjects by the
students but insufficient to deeply explore a subject. He also stated that
there appeared to have been an obvious lack in the teaching of the
program in question, as students were unable to demonstrate a detailed
understanding of certain procedures. Finally, he could not recommend
that any of the students be permitted to be registered with the HPCSA.

[22] In argument before us, counsel for the appellant submitted that the
November 2006 examination was so difficult that even medical
specialists could not have been expected to answer at least one of the
questions in the detail required. Counsel relies for this submission on the
report of Dr Cooke who was invited as an expert on the appellant’s behalf
to consider, assess and evaluate the November 2006 examination papers.
Dr Cooke’s report has been placed before us. That is unfortunately not
how I read the report as set out in his letter of 10 May 2007. Dr Cooke
said that the questions were medically correct but pointed out that there

were minor issues with regards to long questions and short questions. He
then went on to say that the questions could be easily understood and
were very clear in their content of case scenario, exact requirements of
answers and subsections. As to the long questions he stated that they were
not misleading. There was, he continued, some minor sense of ambiguity
or ‘trick questions’ in the multiple choice section. He then went on to
offer comment on the mark allocation and acknowledged that the mark
allocation in the long questions is an area which will always carry some
minor degree of subjectivity. His further comments on the paper do not,
in my view, detract from the fairness of the examination and do not
provide support for the contention that the November 2006 examination
paper was unfair and aimed at failing the appellant’s students. In my view
the submissions by counsel regarding the November 2006 examination
paper are without merit.

[23] It bears mention that the first respondent, the Health Professions
Council of South Africa is the statutory custos morum of the medical
profession and that being mainly composed of members of the profession
who know and appreciate the standards demanded of the profession, it
has considerable advantages over a court in the consideration and
evaluation of standards sought to be maintained (De Bruin para 23).
There can therefore be no question that the Board’s assessment of the
November 2006 examination must carry the day.

[24] In the result the following order is made:
The appeal is dismissed with costs including the costs of two counsel.

__________________
K K MTHIYANE
DEPUTY PRESIDENT

APPEARANCES

For Appellant:
PJ Tredoux (with him C Cutler)
Instructed by:
Gillan & Veldhuizen Inc, Cape Town
Matsepes Inc, Bloemfontein

For Respondents:
DI Burger SC (with him T Manchu)
Instructed by:
Gildenhuys Lessing Malatji, Pretoria
Honey Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
31 May 2013
Status:
Immediate

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

EMS v HEALTH PROFESSIONS COUNCIL OF SA

The Supreme Court of Appeal (SCA) today dismissed an appeal by Emergency Medical
Supplies (EMS) against an order of the Western Cape High Court dismissing its appeal in
terms of s 20 of the Health Professions Act 56 of 1974 (the Act). The s 20 appeal was
against a decision of the Professional Board for Emergency Care Practitioners (the Board)
withdrawing the EMS’s accreditation to provide training in certain emergency care courses.

EMS had applied for and been granted accreditation to provide training in a limited number
of courses. However, it later emerged that EMS was also providing training in courses for
which it had not received accreditation, contrary to section 16(1) of the Act which
prohibited it from doing so. EMS persisted in offering training in those courses despite
being informed of this fact by the Board. It also emerged that EMS’s equipment was
insufficient; that it failed to keep logbooks and that the training it provided was of general
poor quality – EMS’s students lacked a deep understanding of theoretical knowledge, their

grasp of the subjects was superficial and they had performed poorly in the November 2006
examination. It was for these reasons that the Board withdrew EMS’s accreditation. EMS
then unsuccessfully appealed against this decision to the high court. Aggrieved by the order
of the high court, it then appealed to the SCA.

Before the SCA the first issue was whether the s 20 appeal was a wide appeal or a narrow
appeal. If it was a wide appeal, the SCA said, then the court could consider the review
grounds relied on by EMS. However, if it was a narrow appeal the court would be confined
to the merits of the matter and not be entitled to consider the review grounds.  The SCA
held that the s 20 appeal was a narrow appeal and that it was, therefore, confined to the
merits. The second issue related to the November 2006 examination, with EMS contending
that the Board, in setting the question paper, had intended to fail its students. On this issue,
the SCA held that the first respondent, the Health Professions Council of South Africa, is
the moral custodian of the medical profession and that it had considerable advantages over
a court in the consideration and evaluation of standards sought to be maintained. Therefore,
the SCA held, the Board’s assessment of the examination had to carry the day.