REPORT OF THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION ON THE PUBLIC by armedman1

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									REPORT OF THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION ON
THE PUBLIC HEARING HELD IN THE LYN MILLER AUDITORIUM, WITS
MEDICAL SCHOOL ON 2 DECEMBER 1996

15 January 1997

PARTIES

The complaint is the South African Foreign Graduates Association, a sub-
group of the Medical Association of South Africa which is an organisation that
represents the interests of the medical profession in South Africa.

The respondent is the Interim National Medical and Dental Council, a body
established in terms of section 2 of Act 56 of 1974 (the Medical, Dental and
Supplementary Health Services Act). The Interim Medical and Dental Council
was established on 15 September 1995 to carry out the functions of the South
Africa Medical and Dental Council during the transitional period and to assist
in the promotion of the health of the population of the Republic. The Interim
Council will eventually be replaced by a permanent body.

POWERS OF THE INTERIM NATINAL MEDICAL AND DENTAL COUNCI

The respondent is empowered to exercise authority over all matters affecting
the training, and subsequent registration, of persons in the medical
professions. In terms of section 17 of the Medical, Dental and Pharmacy Act
13 of 1928, no person may practice medicine in the Republic of South Africa
unless he or she is registered in terms of the Act. Any bears the final
responsibility of ensuring that persons who apply for registration are suitably
qualified to practise medicine in the Republic of South Africa.

Section 17 of the Act makes provision for the registration of medical
practitioners. A person wishing to register must apply to the council,
submitting his or her qualifications, proof of identity and good character and of
the authenticity and validity of those qualifications. These requirements also
apply to those practitioners who qualified in Great Britain, Northern Ireland,
Republic of Ireland and Belguim.

Persons who qualified abroad, other that at institutions in those countries
referred to the above, may also apply to the respondent for registration.
Presently such persons initially qualify for limited registration if they write the
Examination for Limited Registration. If hey pass this examination, they are
entitled to be employed by a recognised health authority in South Africa. Tey
many not enter private practice.

Practitioners who have limited registration may then obtain full registration if
they satisfy certain requirements laid down by the respondent. They must be
registered with the respondent for a period of two years, (one year of which
must have been at an institution approved by the respondent), they must
submit certificate of competency to the respondent and they must pass the
Examination for Full Registration (“EFR”). Any practitioner who fulfils the
above-mentioned requirements is entitled to obtain full registration from the
respondent and may enter private practice.

Practitioners who have limited registration may then obtain full registration if
they satisfy certain requirements laid down by the respondent. They must be
registered with the respondent for a period of two years and have practised
for a period of two years, (one year of which must have been at an institution
approved by the respondent), they must submit certificates of competency to
the respondent and they must pass the Examination for Full Registration
(„EFR”). Any practitioner who fulfils the above-mentioned requirements is
entitled to obtain full registration from the respondent and may enter private
practice.

THE SPECIAL DISPENSATION

In 1991, the South African Medical and Dental Council took a resolution that
was intended to accommodate returning exiles. IN terms of this resolution,
South African citizens who had obtained their qualifications outsides of the
Republic, would be granted limited registration provided that they applied that
they applied for such registration before December 1991. The practitioners
who qualified to obtain such limited registration would be able to obtain full
registration by working at an approved hospital or health facility for a period of
one year, and provided that they obtained a certificate of competency at the
end of that year, indicating that they were professionally competent.

COMPLAINT

The complaints allege that the failure of the extend the special dispensation to
them is a violation of the right to equality as contained in section 8 of the
Interim Constitution and the right to freely engage in economic activity. Had
they been able to complete the naturalisation process prior t December 1991,
they been entitled to obtain full registration without the necessity of having to
write the EFR. They claim that the present regulations which require them to
write this examination, read with special dispensation, amounts to unfair
discrimination. They argue that others, having similar qualifications and
experience to them, but who have been naturalised prior to December 1991,
were accorded full registration without having to write the EFR.

The South African Human Rights Commission received a letter of complaint
from the complainant on 15 May 1996. Members of the complainant were
invited to address a Plenary session of the Commission on 20 June 1996,
inviting its response to the issues raised by the complainant.     The
Commission received a comprehensive response from the respondent o 6
August 1996, which was conveyed to the complainant.

A decision was thereafter taken by the Chairperson of the Commission that
legal argument should be addressed to the Commission. Negotiations were
undertaken to identify a date suitable to both parties and accordingly a public
hearing in terms of section 9 of the Human Rights Commission Act 54 of 1994
was convened on 2 December 1996. The panel constituted to hear the
argument consisted of the Chairperson of the Commission, Dr Barney
Pityana, the Deputy-Chairperson, Mrs Shirley Mabusela, Advocate Pansy
Tlakula and Professor Karthy Govender. Professor K P Mokhobo from the
Medical University of South Africa was invited to assist the Commission, but
reused himself at the request of the respondent on the basis that he was a
member of various committees constituted by the respondent.

FINDINGS OF THE COMMISSION

Is there a violation of the right to freely engage in economic activity?

Section 2e6 of the Interim Constitution provides:

   (1) Every person shall have the right freely to engage in economic activity
       and to pursue a livelihood anywhere in the national territory.

   (2) Subsection (1) shall not preclude measures designed to promote the
       protection of the improvement of the quality of life, economic growth,
       human development, social justice, basic conditions of employment,
       fair labour practices or equal opportunity for all, provided such
       measures are justifiable in an open and democratic society on freedom
       and equality.

The complainant alleged a violation of this right in their papers but did not
substantiate or develop this argument in its oral presentation. If sections
26(1) and (2) are read together then it becomes clear that the respondent is
permitted to regulate entry into the medial profession for the purpose listed in
section 26(2). The special dispensation afforded an easy route to full
registration for certain individuals. It did not change the general law regarding
the admission of doctors. No argument was made that the general law
regarding admission violated section 26 in that it was not justifiable in an open
and democratic society based on freedom and equality. The complainants
simply wanted the date of the dispensation extended. We are thus of the
opinion that the complainants have not established that there has been a
violation of section 26.

Is there a violation of the prohibition against unfair discrimination?

One of the central principles underpinning the Interim Constitution is its
commitment to equality. This right is one of the main strands, which runs
through the entire fabric of the Constitution and represents a decisive break
with the old order. This Commission is directed by the Constitution to
promote these values. However not every distinction made by the State
amounts to an unfair discrimination. The State, of necessity, has to make
choices and in many instances the consequences of these choices are that
sometimes people are treated differently. For instance, education legislation
makes attendance at school compulsory for children of school going age, but
not for adults.
The first issue to be considered in answering the question above, is whether
the special dispensation violates the complainants right to be treated equally.
Section 8 of the Interim Constitution reads as follows:

   (1) Every person shall have the right to equality before the law and to
       equal protection of the law.

   (2) No person shall be unfairly discriminated against, directly or indirectly,
       and without derogating from the generality of this provision, on one or
       more of the following grounds in particular: race, gender, sex, ethnic or
       social origin, colour sexual orientation, age, religion, conscience, belief,
       culture or language.

   (3) (a) This section shall not preclude measures designed to achieve the
       adequate protection and advancement of persons or groups or
       categories of persons disadvantaged by unfair discrimination, in order
       to enable their full and equal enjoyment of all rights and freedoms.

   (b) Every person or community dispossessed of rights in land before the
   commencement of this Constitution under any law which would have been
   inconsistent with subsection 2 had that subsection been in operation at the
   time of the dispossession, shall be entitled to claim restitution of such
   rights subject to and in accordance with section 121, 122 and 123.

   (4) Prima facie proof of discrimination on any of the grounds specified in
       subsection 2 shall be presumed to be sufficient proof unfair
       discrimination as contemplated in that subsection, until the contrary is
       established.

The section prohibits both direct and indirect discrimination.        Indirect
discrimination occurs when the law is discriminatory in effect. The effects of
the special dispensation is that foreign qualified doctors who became
naturalised after December 1992, have to write an examination prior to
acquiring full registration. Had they become naturalised prior t 1992, they
would have been exempted from writing the examination and would have
obtained full registration upon receipt of a certificate of competency after
working at an approval hospital for a period of one year. The complainants
have to overcome the formidable hurdle of having to write the final year
medical school examination whist similarly qualified fellow-doctors who were
naturalised before 1991 do not have to do so in order to obtain full
registration. This is prima facie proof of discrimination.

As is apparent from section 8(4), prima facie proof of discrimination by the
complainant on any of the grounds specified in section 8(2) shall be presumed
to be sufficient proof of unfair discrimination, until the contrary is established.
It is a trite principle of law that not all distinctions are discriminatory. However
in order to active the presumption in section 8(4), it is necessary to prove that
the discrimination is on one of the grounds specified in section 8(2). As is
apparent in the list contained in that section, citizenship as a ground is not
expressly mentioned. The issue is whether ”citizenship” can be deemed to be
a ground analogous to those mentioned in the list contained in section 8(2).

In Larbi-Odam v Member of the Executive Council for Education 1996 (4) All
SA 185 B at 190J – 191E, the court held that had nationality or citizenship
been intended to be included in the list, this could quite easily have been
stated explicitly. Relying on this decision, the respondent submitted that the
term “social origin” focuses on class distinctions, and not on nationality or
citizenship was not intended to be included in the list.

In contrast the complainants relied on the judgment in Baloro and others v
University of Bophuthatswana and others 1995 (8) BCLR 1018 where
Friedman J held that the words “no person” in section 8(2) implied that the
right to be treated equally was not restricted to citizens of South Africa. Thus
where the respondent –University discriminated against non-South Africans,
there was a violation of section 8(2).

In Andrews v The Law Society of BC (1989) 36 C.R.R 193 or [1989]
1S.C.R.143, the Canadian Supreme Court considered a British Colombia
statute which restricted membership of the legal profession to Canadian
citizens. Andrews was not a Canadian citizen, but in every other respect fully
qualified to practice law in Canadian citizens. Andrews was not a Canadian
citizen, but in every other respect fully qualified to practice law in Canada.
The issue before the court was whether the law discriminated against
Andrews on the basis of citizenship. Sections 15 of the Canadian Charter of
Rights provides:

“Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability”.

An unanimous court held that the citizenship requirement, in addition to the
professional qualifications, violated section 15 an by a majority held that the
requirement was not saved by the limitations clause, which states that;

„The Canadian Charter of Rights and Freedom guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by law
as can be demonstrably justified in a free and democratic society.”

The court held that citizenship was analogous to the grounds listed in section
15 and that there could not be discrimination on the basis of this ground.

Kentridge AJ in S v Zuma 1995 (2) SA 642 CC at 650 – 653 held that Bill of
Rights must be afforded a “ generous interpretation…suitable to give to
individuals the measure of the fundamental rights and freedoms referred
to…”(see 651 B – C).

In Brink v Kitschoff NO 1996(4)SA 197 at 217, O‟ Regan J held that:
„The list provided in section 8(2) is not exhaustive. The subsection states
expressly that the list provided should not be used to derogate from the
generality of the prohibition on discrimination.”

Thus the grounds listed may be supplemented. It appears to us, that at the
very least, any extension to the list would include grounds analogous to those
listed. It would appear to us that the draftspersons of the Constitution
intended that non-citizens enjoy much of the protection afforded by the Bill of
Rights. Most rights are afforded to “ every person”. This is in contrast to
sections 20 and 21 which restrict the right to enter and leave the Republic and
political rights to citizens.

It appears to us that the interpretation that citizenship is an analogous ground
to those listed in section8 (2) will better serve the task of promoting the values
that underlie the Constitution that an interpretation that excludes citizenship
from the prohibited grounds.

Accordingly, it is our finding that the established a prima facie case of
discrimination based on the grounds listed in section 8 (2). Thus the
presumption contained in section 8(4) becomes operative and the
discrimination is deemed to be unfair until the respondent has established the
contrary.

The effect of the special dispensation adopted by the respondent is that
similarly qualified doctors are afforded different benefits and privileges
depending on a medically irrelevant criterion, namely citizenship. This is in
our opinion unfair.

The application of the limitations clause

This is not the end of the enquiry however. Our Constitution provides for a
general limitations clause. It affords an opportunity to the respondent to prove
that although a right has been infringed, such infringement is sanctioned by
the limitation clause, then the complainant fail to establish the requirements of
the limitation clause, then the complainant would succeed in establishing that
their constitutional right to equality has been violated.

Section 33 states that:
“(1) The rights entrenched in this Chapter may be limited by law of general
application, provided that such limitation-
    (a) shall be permissible only to the extent that it is –
    (i)    reasonable; and
    (ii)   justifiable in an open and democratic society based on freedom and
           equality; and

   (b) shall not negate the essential content of the right in question, and
       provided further that any limitation to-
   (a) a right entrenched in sections 10, 11, 12, 14(1), 21, 25, or 30(1)(d) or
   (e) or (2), or
   (bb) a right entrenched in sections 15, 16, 17, 18, 23 or 24, in so far as
   such right relates to free and fair political activity, and shall in addition to
   being reasonable as required in paragraph (a)(i), also be necessary.

   (3) Save as provided for in subsection (1) or any other provision of this
       Constitution, no law, whether a rule of the common law, customary law
       or legislation, shall limit any right entrenched in this Chapter.

This requires adopting what has been termed “a two stage approach”. (see
Kentridge AJ ni S v Zuma and Chaskalson P in S v Makwanyane and another
1995 (6) BCLR 665 CC at 707). The complainant must prove that a right
enshrined in Chapter 3 of the Interim Constitution has been violated.
Thereafter in order to prevent a finding of unconstitutionality the respondent
has the onus of providing that, although the right has been infringed, such
limitation is sanctioned by the limitations clause. Should the respondent fail to
establish the requirement of the limitations clause, and then the complainant
would succeed in establishing that their constitutional right to equality has
been violated.

The three criteria that have to be satisfied in order to successfully rely on the
limitation clause are that the limitation:
     Has been effected in terms of a law of general application,
     Is reasonable and justifiable in an open and democratic society based
        on freedom and equality, and
     Does not negate the essential content of the right.

It would appear to us that the special dispensation is a law of general
application intending to apply to all persons who fall within the category
described within the law. No argument was submitted, justifiably so, that the
law destroyed the essential content of the right. The core enquiry is therefore
whether the special dispensation is reasonable and justifiable in an open and
democratic society.

In Makwanyane supra, Chaskalson P suggested the following guide-lines in
determining whether the limitation was reasonable and justifiable:

“The criteria prescribed by section 33(1) for any limitation of the rights
contained I section 11(2) are that the limitation must be justifiable in a n open
and democratic society based on freedom and equality, it must be both
reasonable and necessary and it must not negate the essential content of the
right.

The limitation of a constitutional right for a purpose that is reasonable and
necessary in a democratic society involves the weighing up of something
values, and ultimately an assessment based on proportionality. This is
implicit in the provisions of section 33(1). The fact that different rights have
different implications for democracy, and in the case of our Constitution, for an
„open and democratic society based on freedom and equality”, means that
there is no absolute standard, which can be laid down for determining
reasonableness and necessity. Principles can be established, but the
application of those principles to particular circumstances can only be done on
a case by case basis. This is inherent in the requirement of proportionality,
which calls for the balancing of different interests. In the balancing process,
the relevant considerations will include the nature of the right that is limited,
and its importance to an open and democratic society based on freedom and
equality, the purpose for which the right is limited and the importance of that
purpose to such a society, the extent of the limitation, its efficacy, and
particularly where the limitation has to be necessary, whether the desired
ends could reasonably have been achieved through other means less
damaging to the right in question. In the process regard must be had to the
provisions of section 33(1), and the underlying values of the Constitutions…
(see 708C-G).

The necessity to respect and enhance equality in this society is writ in the
Preamble, the Text and the Constitutional Principles (see O‟Regan J in Brink
v Kistschoff supra) The complainant‟s specific grievance is that their exclusion
from the special dispensation violates their right to practice medicine in the
private sector without having to write the EFR. This is the consequence of
their being treated differently from similarly qualified colleagues who were
naturalised before 31 December 1991. No evidence has been led that there
is a serious threat to the security of tenure enjoyed by doctors with limited
registration.  Their security of tenure is in any event protected both
procedurally and substantively by section 24 of the Interim Constitution,
general principles of administrative law and by the provisions of the Labour
Relations Act 66 of 1956.

The purpose of the special dispensation was to facilitate eh re-entry into
South African society by exiles. Peoples left South Africa for a variety of
reasons – some left because their lives and physical safety were directly
threatened by the old order because of their active opposition t its apartheid,
others left because the society as ordered in terms of the apartheid laws
prevented or inhibited the attainment or fulfilment of their potential. Yet others
left because they found it repugnant or undesirable to live in a society that
was characterized by the racial prejudice. Most of these people made major
sacrifices and suffered considerable prejudice as a result of the relocation to
foreign society and that their reintegration should be as painless as possible.
The special dispensation was designed to achieve this objective.

All parties have conceded that this was a legitimate and necessary objective.
It appears to us that the special dispensations adopted in respect of both the
medial and legal fields were indispensable in ensuring the readjustment of
foreign qualified exiles into the South African society. It is our opinion that the
purpose of the special dispensation, given the importance of its objective in
normalising society, justifies infringing the right of the complaints to enter into
private practice without the necessity of writing the examination.

In terms of the Makwanyane formulation, it is necessary to have regard to the
extent of the limitation. The complainants are not prevented from practising
medicine. Indeed all are gainfully in state institutions. Neither are they
prevented from entering private practice. They are entitled to enter private
practice upon successfully completing a prescribed examination, which they
contend is unreasonably demanding. It is not however the function of the
Commission to determine the level of complexity or otherwise of the
respondent‟s examination procedure. That is the prerogative of the body
entrusted with the task by the legislature. The Commission may intervene if
the examinations are directly discriminatory or if he effect of the examinations
is that a disproportionate number of foreign doctors fail. No such evidence
was placed before us.

It would appear that the cut-off date decided upon by the respondent was
effective in accommodating its goal. No evidence was led that any exile was
excluded from enjoying the benefits of this dispensation because of the cut-off
date.

Indeed the tenor of the complainants‟ arguments was that the dispensation
was over-inclusive in that its benefits were extended to people who were not
exiles in the sense of having been persecuted by the apartheid order. As a
consequence they argued, the special dispensation should be extended to
April 1994.

The respondent argued that it would be extremely difficult to define returning
exiles and determine whether a person was in fact was in fact an exile who ha
left South Africa because of direct or indirect persecution and oppression.
Had the definition been more circumscribed, it would have necessitated an
investigation into the reasons for the departure of every single person seeking
the benefit of the special dispensation. In order to avoid this, the respondent
adopted a robust definition of persons who qualified for the benefits of the
special dispensation and sought to restrict the time period in terms of which
this benefit could be claimed. Thus a conscious decision was made by the
respondent to allow the special dispensation to be a temporary one. In the
circumstances of this case, we are of the opinion that the determination of the
respondent was rational Further, given the fact that no evidence was led that
exiles were prejudiced by the special dispensation, we must conclude that the
dispensation was effective in realizing its objective.

We find the argument that the cut-off date be extended to April 1994 very
difficult to sustain from a constitutional. The unchallenged submission of the
respondent was that in most constitutional democracies around the world, the
host countries require foreign qualified medical graduates to take an
examination before being admitted to practice in the private sphere. That rule
appears to be sound in principle and in logic. We are of the view that the
complainants‟ request for an extension of the cut-off date would result in an
unsound, but necessary, exception abrogating the rule and becoming the
norm. If the cut-off date was extended to accommodate this group of doctors,
then there would be no reason in principle why it could not be extended
further to accommodate other foreign qualified doctors who become South
African Citizens. The complainants argued that the appropriate date ought to
have been April 1994 because that was when the new constitutionally
sanctioned government assumed power. What is to prevent a similarly
qualified doctor who became a naturalised South African in June 1996
arguing that the cut-off date ought to be 10 December 1996 – the date that
the President signs the final Constitution into law?

Given the fact the that the motivation behind the request for an extension of
the cut-off date was not to benefit exiles, but simply to benefit foreign qualified
doctors who became naturalised South Africa after December 1991, there
would appear no reason to prevent doctors who became naturalised South
African after 1992, being similarly accommodated.

In the Makwanyane judgement, Chaskalson O cautions that “the role of the
court is not to second-guess the wisdom of the legislature”. (see p 708). This
warning is entirely apposite in the circumstances of the present case. The
respondent is equipped with the expertise to determine the requirements fro
admission to practice medicine in South Africa. The setting of deadlines, a
usually contentious issue, must fall within the discretion of the body entrusted
with the task of making such a determination. It appears to us that the
following statement, albeit made in different context, is relevant:

       “ [The] test is one reasonableness, not the rightness, of agency
       findings of fact. The question under it is whether the evidence is such
       that a reasonable person acting reasonably, could have reached the
       decision from the evidence and the inferences.” (see Professor
       Stewards, Lions over the Throne (1987) at 133).

It appears to us that there is a basis in logic and in fact the decision to
promulgate the special dispensation in the manner in which they did. For the
reasons given above, the Commission is of the opinion that the respondent
has discharged the onus and demonstrated that the limitation on the rights of
the complainants was reasonable and justifiable and that the special
dispensation was thus not inconsistent wit their constitutional rights.

RECOMMENDATIONS IN TERMS OF SECTION 15(1) OF THE HUMAN
RIGHTS COMMISSION ACT 54 OF 1994

The respondents submitted that they are reconsidering the present scheme of
limited and full registration. It appears that they are considering new
regulations which will enable foreign qualified doctors to apply for “registration
for public service training or registration for public service can ultimately apply
for registration fro independent practice. In order to do so, they would need to
do the following:
     Have their qualifications assessed by the respondent to determine
       whether they meet certain specified minimum requirements;
     Their competence would be assessed by an examination approved by
       the respondent upon passing this examination, they would obtain
       certificate of competence which would entitle them to apply for
       registration in the public service.
     After three years of successfully completing the post-graduate
       vocational training in hospitals and facilities approved by the
       respondent, they may apply for registration for independent practice.
It appears to us that these criteria would from the basis of a resolution of the
dispute between the complainants and the respondent.                Clearly an
examination of some sort is necessary to test the competence of foreign
trained doctors. The key issue is the standard and content of this
examination. It would appear that the respondent is best placed, given its
access to international precedents, to determine the appropriate standard in
consultation, with all affected parties in South Africa.

It was contended by the complaints that the necessity to write the final year
examination as a prerequisite for full registration is unnecessarily demanding.
We request that the respondent in the formulation of its new policy takes
cognisance of this

								
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