IN THE HIGH COURT OF LESOTHO
In the matter between:
LESOTHO MEDICAL, DENTAL & PHARMACY COUNCIL Applicant and
DOMITILLA KOKUTEKELAZA MUSOKE Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice J.L. Kheola on the 31st day of march, 1993
The applicant moved this Court ex-parte on the 10th March, 1993 for an interdict and obtained an order in the following terms:
1. That Rule Nisi be issued and returnable on Che date and time to be determined by this Honourable Court calling upon the Respondent to show cause (if any) why:-
The normal forms and serviceprovided for by the rules shallnot be dispensed with on accountof urgency;
Respondent, her agents or anyonepractising on her behalf desistforthwith from practising at HaPatsa Building in Maseru as a
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Medical Practitioner, or anywhere in Lesotho;
The Deputy Sheriff shall not bedirected to close the premisesand keep the keys in his safecustody pending finalisation ofthe application;
The Respondent shall not bedirected to pay costs hereof inthe event of opposing same;
Applicant shall not be grantedany further and or alternativerelief.
2. That prayers 1 (a), (b) and (c) operate with immediate effect as an interim Court Order.
The respondent has anticipated the return day which was the 23rd March, 1993. The application was argued before me on the 15th March, 1993 and Mr. Mphalane, attorney for the respondent raised a number of points in limine.
Before dealing with the points raised in limine it will be convenient to give a full history of the dispute between the parties. On the 24th October, 1988 the respondent applied for registration, as a private medical practitioner with the applicant. She was offered provisional registration as a medical practitioner in terms of section 15 (3) of the Medical, Dental and Pharmacy Council Order of 1970. (See Annexure "C" to the founding affidavit).
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On the 9th December, 1988 the President of the applicant advised the respondent in writing that her. provisional registration did not entitle her to practise privately and that she could only work for Government (See Annexure "D").
On the 5th January, 1989 the President of the applicant again wrote a letter (Annexure "E") to the respondent and warned her that she was not allowed to engage in private practice. He further pointed out that her name plates advertising her practice were displayed in a manner that contravened Order 13 of 1970. He warned her that by her actions she was liable for disciplinary action and legal action.
On the 17th February, 1989 the Director General of Health Services warned the respondent that although she had a work permit her provisional registration did not allow her to practise
independently.
On the 21st February, 1989the respondent wrote to the applicant indicating that she would practise under the supervision of Dr. F.N. Rathabaneng until she was placed on the appropriate register.
On the 28th and 29th March, 1989 the respondent sat for the applicant's examinations and she failed. After she had failed
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the examinations the President of the applicant again gave her the usual warning that her provisional registration would be revoked because it required her to be under supervision at a-hospital.
On the 22nd November, 1989 the Acting Director General of Health Services wrote a letter to the Commissioner of Labour copied to the Ministry of Interior and to the applicant recommending that the respondent's work permit should not be renewed on the following grounds:
(i) Her provisional registration did not entitle her to work independently but in an institution;
(ii) She had graduated from an ungazetted University in terms of the Medical, Dental and Pharmacy Order 13 of 1970; and that she had failed the applicant's basic examination.
(iii) She had also been informed that she was practising illegally in the country.
On the 4th July, 1990 the Registrar of the applicant wrote
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a letter to the respondent warning her as usual about her not being entitled to practise medicine at all in this country.
In paragraph 16 of its founding affidavit the applicant avers 'that it, in the interest of public health and safety, has a moral duty and an obligation to the public to uphold the principles and ethics of the medical profession by discouraging acts that are contrary to the rules governing medical practice. It is, therefore, for the reason that the applicant has been constantly seeking redress from various authorities within Government. Furthermore, it has a duty to protect members of the public from any harm that may arise from being treated by medical practitioners not licensed to practise.'
In paragraph 18 the applicant avers that 'if the respondent is allowed to continue in practice having failed basic provisional examinations and with a provisional registration that has been revoked, the applicant would not only be setting a dangerous precedent, but would be putting lives of numerous patients attended by respondent on daily basis in peril.'
In paragraph 19 the applicant 'requests the Court to treat this matter as urgent. It avers that respondent's continuation in practice not only undermines the applicant's statutory authority, but is likely to cause irreparable harm,in terms of
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tarnishing the name of the applicant because it is answerable in the final analysis to any acts done by persons who hold themselves out to be members of the Medical Profession.'
I have set out in some detail the events which led to the institution of this application on ex parte basis on the grounds of urgency.
Rule 8 (22) (b) reads as follows:
"In any petition or affidavit filed in support of an urgent application, the applicant shall set forth in detail the circumstances which he avers render the application urgent and also the reasons why he claims that he could not be afforded substantial relief in a hearing in due course if the periods presented by this Rule were followed,"
Now the question is whether the applicant has satisfied the Rule mentioned above.
The first point raised in limine by Mr. Mphalane is that the applicant has failed to comply with the mandatory provisions
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of Rule 8 (22) of the High Court Rules 1980. He submitted that the applicant has contravened this Rule by not outlining the circumstances which render this matter urgent. He referred to LAWSA by Joubert page 72 paragraph 137 where the learned author says:
"Applicant must in his founding affidavit set out the circumstances upon which he relies to render the matter urgent and the reasons why he cannot obtain substantial redress at the hearing in due course."
He further referred to the recent Court of Appeal case of Khaketla v. Malahleha and others, C. of A. (CIV) No.18 of 1991
(unreported) where Ackermann, J.A. said:
"In my view there was no warrant for seeking or granting this relief against appellant without any notice to her, or on an urgent basis. Appellant had closed the school on the 14th February, 1991 and has on the 2nd March, 1991 been placed on terms in writing by the respondent's attorney to pay their salaries by the 7th March, 1991. This appellant clearly failed to do, yet
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respondent's attorney waited until the 20th March, 1992 before filing the salaries application. An urgency which might have existed at that date was solely of the latter's making."
Mrs Kikine, attorney for the applicant, submitted that to comply with Rule 8 (22) does not require that one has to use the actual words used in the Rule itself but to state circumstances rendering the application urgent. The body of the founding affidavit clearly seta out such circumstances. She submitted further that such circumstances are set out in paragraph 14 that respondent's continued practice was a criminal offence (which can only be allowed to go on at the great expense of law and order). She submitted that paragraphs 16 and 19 more clearly establish the urgency of the application. Applicant did not, as alleged by respondent, fold its hands and wait for six years. It tried to invoke all the procedures laid out in its founding statute in vain. With the passage of time the urgency of the matter can only be aggravated.
She further submitted that respondent has been committing a wrong on a continuous basis and this has been alleged throughout the affidavit. The matter was dealt with at length administratively with no positive results.
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The applicant has patiently waited for about six years before instituting this application ex parte and on urgent basis. I do not agree with the submission that in the three paragraphs of the applicants's affidavit circumstances have been set out which make this matter urgent. The applicant has been practising medicine in this country for about six years and treating patients during that long period. There is no allegation that during that long period she actually endangered the lives of any patients. There is nothing to show that she is now endangering the lives of her patients to such an extent that the matter has become very urgent and that the respondent must stop practising immediately.
The fact that the respondent's practice is a criminal offence is not a recent development. It has been so for a number of years but the applicant did not regard the matter as urgent. I fail to understand what has now made the matter so urgent that not even notice could be given to the respondent. In the words of Ackermann, J.A, in Khaketla's case - supra- 'an urgency which might have existed at that date was solely of the letter's making.' I am of the view that the applicant negligently allowed the respondent to practise for a long time contrary to the laws of this country.
The applicant has not referred explicitly to any reasons why
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it claims that it could not be afforded substantial relief at the hearing in due course. I have come to the conclusion that this application should be dismissed or the rule be discharged on this ground alone. (Eniram (Pty) Ltd. v. New Woodholme Hotel 1967 (2) S.A. 491).
In the result the rule is discharged with costs.
J.L. KHEOLA JUDGE
31st March, 1993.
For the Applicant - Mrs Kikine For the Respondent - Mr. Mphalane.