REPORTABLE
Case Number: 624 / 98
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter between  :
THE MINISTER OF HEALTH
First Appellant
THE NATIONAL INTERIM MEDICAL AND DENTAL
COUNCIL OF SOUTH AFRICA
Second Appellant
and
A M MALISZEWSKI
First Respondent
SAROLTA KERESZTES
Second Respondent
JAN HENDRIK JOSEF SZCZYGIELSKI
Third Respondent
MARTIN TUPY
Fourth Respondent
DANIELA TUPY
Fifth Respondent
JOVAN MILOVIC
Sixth Respondent
ILIA TODOROV EVREV
Seventh Respondent
RYSZARD GORBASZEWICZ
Eighth Respondent
MALGORZATA RADZIKOWSKA-WASIAK
Ninth Respondent
LEONID GOLDBERG
Tenth Respondent
T MARIUSZ TOMASZ PASZKIEWICZ
Eleventh Respondent
Composition of the Court :
Smalberger, Olivier, Scott, Plewman JJA
and Melunsky AJA
Date of hearing :
11 May 2000
Date of delivery :
30 May 2000
SUMMARY
Registration of medical doctors with foreign qualifications - extension of special
dispensation given in 1991 by SA Medical and Dental Council.   Punitive costs order as
regards unnecessary exhibits.
J U D G M E N T

P J J  OLIVIER JA
OLIVIER  JA
[1] This appeal is against the successful claim by the respondents in the
Transvaal Provincial Division of the High Court that they be granted “full
registration” by the second appellant in terms of the Medical, Dental and
Supplementary Health Service Professions  Act 56 of 1974 (“the Act”).   The
second appellant had refused such registration.   The trial judge, MacArthur
J, ordered the appellants jointly and severally to register the respondents as
medical practitioners without restrictions within seven days from the date of
his order.   He awarded the respondents their costs of action.   The judgment
is reported as Maliszewski and Others v Minister of Health and Another
1999 (2) SA 399 (T).   The appeal is before us with leave of the court a quo.
[2] The appellants are entrusted with the function of administering the
health services in the Republic of South Africa.   The second appellant, which

is the successor to the South African Medical and Dental Council (“the
Council”) is, in terms of the Act, called upon to regulate and control the health
professions, including the registration of medical practitioners.  The first
appellant (“the Minister”) is the member of the executive branch of
government responsible for the administration of the Act.
[3] All the respondents are medical doctors who have passed the
primary medical examinations at certain overseas universities (in Poland,
Hungary, Slovakia, Serbia, Bulgaria and Russia) qualifying them to practise as
general practitioners in these countries.   They then immigrated to South
Africa.   They were given so-called “limited registration” by the Council,
which permitted them to work only in the public service, that is, in government
or provincial hospitals.    They have all worked in that capacity for a number
of years.   They are now all permanent residents and citizens of South Africa.
[4] The bone of contention in the present matter is that the appellants

refused the respondents full registration because they had not passed an
examination known as the examination for full registration (“the EFR”).   It is
a practical, clinical, oral examination similar to the one set for South African
medical students at the end of their final year.   The appellants aver that in
terms of the Act the respondents must sit for and pass the EFR before they
can be granted full registration.   Only then would they be entitled  to  enter
private practice as general practitioners.   In support of their contention the
appellants rely on the provisions of the Act and the regulations as at 29
October 1997 (“the relevant date”), being the date of the institution of the
action.
[5] The respondents contend that on the basis of their qualifications and
experience, they are entitled to equal treatment with South African born
citizens or with foreigners who acquired South African citizenship and who
were able to benefit from the so-called special dispensation granted in 1991

inter alia to doctors in a situation similar to that in which the respondents find
themselves.   In this regard it is common cause that the respondents all
acquired South African citizenship after 31 December 1991.   It was averred
on behalf of the respondents that had they acquired citizenship before that
date, they would have received full registration by special dispensation
because the Council, having adopted the special dispensation, had given full
registration to doctors who before 31 December 1991 had both become South
African citizens and had applied for registration.   The respondents’ case is
that the said cut-off date was arbitrary;  that citizenship has no rational,
reasonable, relevant or justifiable nexus with the criteria for admitting the
respondents to qualify as general practitioners in private practice;  that the
Council has the discretion to grant them full registration on the same basis as
was provided for in the special dispensation, and that the Council’s refusal to
do so was unreasonable, biased and mala fide.

[6] The recognition of foreign medical qualifications in South Africa for
the purpose of the registration of the holder thereof as a medical practitioner
is governed by the Act, which makes provision for the promulgation of
regulations by the Minister.   The relevant provisions are to be found in ss 17,
24, 26, and 28 of the Act as it then read, and two sets of regulations, R2274
of 3 December 1976 and R1243 of 8 June 1990.
[7] Sec 28 of the Act stipulates that doctors like the respondents who
have only limited registration may qualify for full registration provided they
meet the following requirements :
(1)
In terms of s 28 (1) (b) they must have held limited
registration for at least two years.
(2)
In terms of s 28 (1) (c) (i) they must, while so
registered, have practised in South Africa for at
least two years of which at least one year must have

been at a public health facility approved by the
Council.
(3)
In terms of s 28 (1) (c) (ii) they must submit a
certificate by the head of the health facility at which
they practised certifying that they are “competent
and of good character”.
(4)
In terms of s 28 (1) they may then apply to the
Council to sit for the EFR.   In terms of s 28 (2) the
EFR must be an examination designed to ascertain
whether the practitioner,
“(a)
possesses professional knowledge
and skill which is of a standard not
lower than that prescribed in respect
of medical practitioners ... in the

Republic;
(b)
has sufficient knowledge of the laws
of the Republic applying to medical ...
practice ... ; and
(c)
is proficient in at least one of the
official languages of the Republic.”
The EFR can be taken at any South African medical school.
[8] Only after the practitioner has passed the EFR and complied with all
the other requirements, is he or she entitled to full registration (s 28 (4)).
[9] Sec 28 (5) provides that the Council may partially exempt a
practitioner under limited registration from the EFR requirement.   The
Council, however, was not competent to exempt the respondents under this
provision for the following reasons :
(a)
Sec 28 (5) permits the Council to exempt only those practitioners

who have passed an examination which entitled them to limited
registration (“ELR”).   With one exception, none of the
respondents had done the ELR.  They acquired limited
registration during the temporary suspension of the ELR
requirement from 1990 to 1992.   They accordingly did not
qualify for exemption in terms of s 28 (5).
(b)
Sec 28 (5) in any event only permits exemption from part (a) of the
EFR.   It does not permit exemption from parts (b) and (c).   It
accordingly does not avail the respondents because,
S
they refuse to sit for the EFR at all, and
S
they claim full registration without having done so.
(c)
The respondents in any event never applied for exemption under s 28
(5) and did not allege that they had done so.
[10] The respondents approached the Council for full registration during

the period 1995 to 1997.   When the Council refused such registration, they
instituted action for
(1)
An order striking down the aforesaid regulations as
unconstitutional; and / or
(2)
An order in terms of which the Minister and the
Council are jointly and severally compelled to
register them as medical practitioners without
restriction within a period of seven days from the
date of the court order;
(3)
Costs of suit; and / or
(4)
Further and / or alternative relief.
[11] The court a quo did not base its judgment on the invalidity of the
aforesaid regulations, and granted prayers (2) and (3) set out above.   Before
us, the attack on the validity or constitutionality of any provision of the Act or
of the said regulations was abandoned.
[12] Furthermore, it was correctly conceded by Mr Raath, counsel for the

respondents, that if one leaves the so-called special dispensation out of
account, the respondents would not be entitled to full registration because they
have not presented themselves for the prescribed examination.   In order to
establish a cause of action the respondents were constrained to rely on the
special dispensation, the principle of equality and s 4 (g) of the Act.
[13] The special dispensation is a striking illustration of the way in which
bridges were built between the Old and the New South Africa.   The evidence,
inter alia  of Mr Prinsloo, the secretary of the Council, was to the effect that
the special dispensation was introduced in April 1991 in response to the
unique circumstances of that time.   From 2 February 1990  the government
had abandoned its policy of apartheid:   the ban on the liberation movements
was lifted, the armed struggle came to an end, and   South African exiles
returned home.   These exiles included South Africans who had studied and
qualified as medical practitioners abroad, and the special dispensation was

devised to facilitate their return to South Africa by easing the normal
requirements for the recognition of their foreign qualifications.   This
dispensation was however intended and designed to be a once-off concession
in response to the unique circumstances of the time.   It was not intended or
designed to introduce lasting changes to the normal requirements for the
recognition of foreign qualifications.
[14] The special dispensation was introduced in response to representations
made to the Council by a variety of medical and political organisations in
January 1991.   Representatives of those organisations met with representatives
of the Council on 10 January 1991.   The meeting adopted a set of
recommendations which were approved by the executive committee of the
Council in March 1991 and ultimately by the Council itself in April 1991.
These approved recommendations constituted the special dispensation.
[15] The special dispensation applied to all South African citizens who

had qualified from or were enrolled at universities outside South Africa before
the end of 1991.   The appellants’ witnesses, Prinsloo and Dr Becker,
explained that, although the special dispensation was designed to
accommodate South African exiles and their spouses, it was not possible and
in any event not practical to define this class of beneficiary in such a way that
only they qualified for it.   The class was not one that lent itself to a simple
definition capable of ready application, because those who had gone into exile
had done so for such diverse reasons.   That was why a wide definition was
adopted even though it would also include people other than the exiles for
whose benefit the special dispensation was designed.   For this reason, it
applied also to foreigners who were not spouses of South African citizens, but
who had acquired South African citizenship by naturalisation before the cut-
off date.
[16] Those who sought registration under the special dispensation had

to qualify and apply for it before the end of 1991.   The special dispensation
was made subject to a cut-off date because it was intended to be a once-off
concession to returning exiles.   There was no intention to introduce a lasting
change to the normal rules that govern the recognition of foreign qualifications,
nor to introduce a policy to be followed in all future cases, nor to introduce
a general practice.
[17] The main features of the system of registration of practitioners with
foreign qualifications under the special dispensation were the following:
(a)
They had to complete a year’s intern training, if
they had not yet done so.
(b)
They were initially given limited registration which
allowed them to practise at an approved hospital or
training facility.   An effort was made to ensure that
they were placed in departments most suited to their
training needs.  Their heads of department also had
to ensure that they were familiarised with local legal
and ethical norms.

(c)
Their performance was monitored during the year.
Their heads of department had to render interim
reports on their performance to ensure that
corrective action was taken if they were not
performing satisfactorily.
(d)
At the end of the year, their heads of department
had to report on their professional competence.
Only those candidates who were certified to be
sufficiently competent for full registration were
granted full registration.   Those who were not
certified to be sufficiently competent for full
registration, had their limited registration extended
for another year.   If after the second year the head
of the department again did not certify the candidate
sufficiently competent for full registration, the latter
was required to pass a final year medical
examination at a South African university.
[18] The special rules in other words departed from the normal rules that
govern the recognition of foreign qualifications in the following respects:

(a)
Candidates were not required to do the ELR before
they were granted limited registration.
(b)
They were carefully assisted and monitored during
their period of practice under limited registration.
(c)
They could qualify for full registration after one
year of practice under limited registration .
(d)
They were not required to do the EFR but only if
their heads of department certified them to be
sufficiently competent for full registration.
[19] The complaint of the respondents, and their cause of action, is
based on certain features of the special dispensation.   They do not contend
that it was unreasonable for the Council to exempt returning South African
exiles from the normal rules.
[20] They complain that those who qualified for full registration without an
EFR under the special dispensation, were not limited to returning exiles;  they
included immigrants who differed from the respondents themselves only in that

they had acquired citizenship before the cut-off date at the end of 1991:  an
immigrant who had obtained his or her medical academic qualifications at any
one of the universities at which the respondents also qualified, was given full
registration by virtue of the special dispensation if he or she had obtained
South African citizenship before 31 December 1999.   But a person in a similar
situation who acquired South African citizenship on 2 January 1992 would not
qualify for the dispensation and would have to write the EFR.   This includes
the respondents, all of whom acquired South African citizenship after 31
December 1991.
[21] The complaint of the respondents then is that they have been and
are being unfairly discriminated against by the Council : the date 31 December
1991 was arbitrarily decided upon; had it been fixed for a later date - say the
end of 1996 or 1997 - they would have qualified for the special dispensation
and would have been absolved from taking and passing the EFR.  They

therefore seek equal treatment with those of their fellow countrymen who
benefitted from the special dispensation.   Hence the prayer aimed at
compelling the Council to grant them full registration.
[22] The court a quo upheld the respondents’ claims at common law.   It
found as follows:
(a)
The Council’s refusal to exempt the respondents
from the EFR requirement for full registration was
held to be administrative in nature and accordingly
subject to review at common law under the rules
applicable to the exercise of an administrative
discretion.
(b)
The only basis on which the Council distinguished
between some of the practitioners who were
granted full registration under the special
dispensation without having to do the EFR and the
respondents who were refused full registration
because they had not done the EFR was that the
former had acquired South African citizenship by

the cut-off date at the end of 1991 while the latter
had not.   This distinction was held to be entirely
arbitrary and the Council was held to have
unreasonably discriminated against the respondents.
(c)
The Council was held to have failed to take into
account the particular circumstances of the
respondents.
[23] One cannot but have sympathy for the respondents.   They hold
degrees from internationally recognized universities, which required a course
of study of at least six years and a year of clinical practice thereafter.   Their
practical experience and competence in public health institutions in South
Africa have never been challenged.   Most of them are also required to teach
South African students, interns and registrars, i.e. medical doctors qualifying
for their specialisation, and lead them to successful completion of their
examinations.   It was not contested that the working conditions of
practitioners in the public health sector are exceptionally demanding and

perhaps even more onerous than the conditions in private practice.   They all
have held limited registration for longer than the two year period required as
one of the requirements for full registration.   As limited registration relates to
registration as a general practitioner, it follows that the Council regarded the
respondents as suitably qualified as general practitioners to be employed in the
public health sector.  Their personal commitment to South Africa has been
proved by their acceptance of citizenship.
[24] However, the relief sought in this action, i.e. a mandamus against the
Council compelling the latter to give the respondents full registration without
having to do the EFR, can be granted only if this Court can lawfully compel
the Council to do so.   Considerations ad misericordiam cannot dictate the
outcome of the action.
[25] As stated above, the respondents abandoned their attack on the
invalidity or unconstitutionality of any provision of the Act or the regulations.

On their behalf it was also, correctly, conceded that they are not entitled to
full registration (and to the relief sought) merely by relying on the provisions
of the Act and the regulations.   In fact, having regard only to these provisions,
the respondents are not entitled to full registration.   The successful
participation by each candidate in the EFR is a valid condition for full
registration (s 28 (4)).   The respondents have not complied with that
requirement.
[26] The respondents were driven to rely on the special dispensation, the
principle of equality and the discretion of the Council under s 4 (g) of the Act.
Sec 4 (g) reads as follows :
“The council may -
(a) to (f) .......
(g)
upon application of any person, recognize any
qualifications held by him (whether such
qualifications have been obtained in the
Republic or elsewhere) as being equal, either

wholly or in part, to any prescribed
qualifications, whereupon such person shall, to
the extent to which the qualifications have so
been recognized, be deemed to hold such
prescribed qualifications.”
[27] I will assume, without deciding, the following aspects in favour of the
respondents :
(a)
That they have complied with all the other
requirements for full registration provided for in the
Act and all the relevant regulations, i.e. that all that
stands between them and full registration is the
requirement that they pass the EFR.
(b)
That their applications for registration should have
been regarded as including applications for the
recognition of their qualifications in terms of s 4 (g).
(c)
That the Council has not exercised its discretion in
terms of s 4 (g) of the Act, i.e. to recognise their
qualifications as equal to the prescribed South
African  academic qualifications, entitling them to

registration.   (Had the Council exercised this
discretion against them, they still would not have
been entitled to the form of relief claimed in this
action.)
(d)
That the granting of the special dispensation was
valid.   (If not, the respondents’ reliance on it and
the basis of their claims, fall away.)
[28] Against the aforegoing it needs to be stated, as far as the equality
argument is concerned, that the respondents have been treated on the same
basis as all the other foreign doctors immigrating to South Africa who have
acquired citizenship after December 1991.   Thus viewed, there is no
discrimination against the respondents.   Nor is there discrimination against
them vis-a-vis South African citizens by birth who qualified elsewhere but
sought registration after December 1991 in South Africa : they have to pass the
prescribed examination (unless they qualified in certain countries whose
standards of training were by regulation accredited as being on a par with

those of South Africa - which is not the case with the respondents).   The only
basis for the reliance on the equality principle lies in a comparison of the
respondents, who acquired citizenship after December 1991, and other foreign
doctors in their position who acquired citizenship before that date.
[29] The crucial question, therefore, is this : Are the respondents entitled to
full registration by virtue of the provisions of, or by way of extension of, the
special dispensation?
[30] As explained above, the special dispensation was a relaxation of the
normal requirements for full registration for a limited group of individuals and
for a limited time with a clear cut-off date.   It amounted to a clearly defined
exemption from the EFR.   For the very reason that the Council did not wish
to establish the special exemption as a general rule of practice or to create
expectations, the cut-off date was established and made known.   As with all
similar exemptions or exceptions or special dispensations, the cut-off date was

somewhat arbitrarily chosen, but it was not contended by Mr Raath that it was
done so unreasonably or unfairly.
[31] When the special dispensation came to an end, the statutory provisions
relating to full registration once again became applicable.   When the
respondents applied for registration, the statutory rules applied and they had
to comply with them.
[32] There is no basis for extending the provisions of the special
dispensation to the respondents.   The special dispensation, by its very terms,
is not applicable to them.   They cannot rely on an extension of it, because it
created no entitlement on which to rely;  it did not establish a policy or general
practice binding the Council in respect of future cases, nor could it be said to
have created a reasonable or legitimate expectation on the part of the
respondents that they would be able to rely on it or benefit from it.   The
respondents always knew what the requirements for full registration, applicable

to them, were.   They had either to pass the EFR or to approach the Council
under s 4 (g) to recognise their qualifications as being equal, either wholly or
in part, to any prescribed qualifications.   For individuals in the position of the
respondents these requirements are neither onerous nor unfair.   It follows that
the respondents have failed to prove a basis for the application of the equality
principle and thus of compelling the Council to grant them full registration.
[33] In Absa Bank Ltd v Davidson 2000 (1) SA 1117 (SCA) at 1126 paras
[28] and [29] the attention of practitioners was once again drawn to the
displeasure of this Court at the habit of putting bundles of unproved and
irrelevant documents before a trial Court and eventually a Court of Appeal (see
also previous statements to that effect in Government of the Republic of
South Africa v Maskam Boukontrakteurs (Edms) Bpk 1984 (1) SA 680
(A) at 692 E et seq and cases there cited; Louw v WP Koöperatief Bpk en
Andere 1994 (3) SA 434 (A) at 447 D - 448 C).   Practitioners have had timely

warning that special costs orders may be considered in appropriate cases.
[34] This warning was not heeded in the present instance.   The record of
appeal contains 2445 pages of documents, representing a bundle placed
before the trial court and simply duplicated and thrust upon this Court, most
of which was not relevant.
[35] When the record for the appeal was prepared, the attorneys and
counsel well knew that the issue had been narrowed down to a legal one: could
the respondents rely on the special dispensation for the relief claimed by them?
The record should have been pruned accordingly.   On a realistic assessment,
no more than one third of the record was necessary for the appeal.
[36] Counsel for the appellants were requested during the trial to provide
the Court with an explanation for belabouring this Court with an extraordinary
number of irrelevant documents, and why a special costs order should not be
made against the appellants, who were responsible for the preparation of the

appeal record.
[37] In a letter emanating from the appellants’ attorneys dated 18 May
2000, this Court was advised as follows:
“1
Dr Ashley Memela, a then recently qualified attorney,
having served his clerkship with Rooth & Wessels Inc.,
was mandated to prepare the record.   Dr Memela was
also the attorney who instructed counsel for the trial
under the supervision of Mr Griessel, a then director of
Rooth and Wessels Inc.
Prior to the record being lodged, Dr Memela was
offered the position as Registrar of the second appellant.
On his appointment Dr Memela resigned from this firm.
On the resignation of Dr Memela, the extended time
limit for lodging of the record became imminent as
result of which a second practitioner, one Mr Young,
was mandated to attend to the preparation and lodging of
the record.   Because he was not involved in the trial, and
because of demanding time constraints, Mr Young was
unable to distinguish between what should have been
included in the record and what documents were
superfluous.   This judgment call [sic] to err on the side

of completeness and bore no desire to be avaricious or
to be improper.
The transcribers apparently indicated that they were
unable to prepare the record without having access to all
the exhibits.   Mr Young was unable to locate the
exhibits in the dossier of the court a quo.   Because of
his limited knowledge of the specific documentation
strictly required for purposes of the record, Mr Young
sought the co-operation of the respondents’ attorneys to
assist him with the preparation of the record.   They
rendered their assistance in reconstructing and
compiling the record.
Both attorneys inter alia attended at the offices of the
second appellant to extract relevant minutes from the
meetings which were referred to in the evidence.
May we be afforded the opportunity to apologise profusely and
unconditionally for the preparation of the record and more so to the
extent that superfluous documentation was included therein.   It is clear
from enquiries conducted by the writer, that the mentioned
practitioners in our employment were erroneously of the bona fide
opinion that the entire and complete record with all exhibits as it served
before the court a quo, had to be prepared for purposes of the appeal.”

[38] While one can have sympathy with Mr Young, the explanation
furnished by the appellants’ attorneys does not put forward an acceptable
excuse.   If Mr Young was not au fait with the matter, he should have
consulted a member of the firm who had dealt with the matter at the trial stage
or he should have consulted counsel.   Furthermore, the attorney who was in
charge of this matter during the trial stage, Mr Griessel (and whose name
appears on the appeal record as the responsible attorney), should have
supervised the preparation of the record.   He should have given proper
instructions to Mr Young.
[39] I bear in mind the warning that in considering a punitive costs order,
a court should warn itself against using hindsight in assessing the conduct of
a party (see A A Alloy Foundry (Pty) Ltd v Titaco Projects (Pty) Ltd 2000
(1) SA 639 (SCA) at 648 par [20]).   In the present appeal, however, it is clear
that no consideration at all was given to the question of curtailing the record,

nor was proper supervision provided by the attorney dealing with the matter.
[40] In the result, I am of the view that a punitive costs order should be
made against the appellants’ attorneys.   In my view, the appellants should not
be entitled to recover any costs relating to the preparation, perusal and
presentation of two thirds of the record from the respondents, nor should the
appellants’ attorneys be entitled to recover from its own client any such costs.
[41] In the result the appeal must succeed.   The following orders are made:
(a)
The appeal succeeds with costs, such costs to include the costs
of two counsel, but excluding the costs relating to the procural,
preparation, perusal and presentation of two thirds of the appeal
record.
(b)
It is ordered that the appellants’ attorneys shall not recover from
their own clients any costs relating to the procural, preparation,
perusal and presentation of two thirds of the appeal record.

(c)
The judgment of the court a quo is set aside and replaced by the
following order : “The action is dismissed with costs, such costs
to include the costs of two counsel.”
P J J  OLIVIER  JA
CONCURRING :
SMALBERGER JA
SCOTT JA
PLEWMAN JA
MELUNSKY AJA