CIV/APN/242/89

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

KELELLO
MOJELA LEROTHOLI Applicant

and

REGISTRAR
- MEDICAL, DENTAL

&
PHARMACY COUNCIL ........... 1st Respondent

MEDICAL,
DENTAL & PHARMACY

COUNCIL
.................... 2nd Respondent

MINISTRY
OF HEALTH ............... 3rd Respondent

........
ATTORNEY-GENERAL................ 4th Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 23rd day of October. 1989

On
27th.September,M989 the applicant herein filed, with the Registrar of
the High Court, an urgent application in which he moved
the court for
a Rule Nisi calling upon the Respondents to show cause why :

"1(a) First and Second repondents shall not be ordered to
register the applicant as an intern at Queen Elizabeth II Hospital
in
accordance with the provisions of the Medical, Dental and Pharmacy
Order of 1970 as amended, such registration taking effect
from the
date Applicant applied for registration;

2

2. First
   and Second Respondents shall not be restrained from imposing illegal
   re-examination of Applicant as a condition for registration,
   by
   which First and Second Respondents are acting ultra vires:

   
   

3. Third
   Respondent or any of his servants shall not be restrained from
   removing or in any way tampering with the Applicant in doing
   his
   practical at Queen Elizabeth II hospital as medical intern.

   
   

2. Directing
   the Respondents to pay the costs of this application jointly and
   severally, the one paying the other being absolved;

   
   

3. Granting
   the applicant such further and/or alternative relief;

   
   

4. That
   prayer 1(a), (b) and (c) operate with immediate effects as an
   interim order pending the outcome of this application."

   
   

The
application was moved, ex-parte. before me on the same day, 27th
September, 1989 when I granted the Rule Nisi in terms of only
prayers
1, 2 and 3 i.e. not in terms of prayer 4. The first and second
respondents Intimated their intention to oppose confir­mation
of
the rule. The third and the fourth respondents did not file notice of
intention to oppose confirmation of the rule. It may,
therefore, be
safely assumed that they are prepared to abide by whatever decision
will be arrived at by the court.

Both the
founding and the answering affidavits were filed by the applicant and
the Respondents, respectively. No Replying affidavit
was filed by the
applicant.

3

It may,
however, be mentioned that on 19th October, 1989 whilst writing this
judgment a document purporting to be the Replying affidavit
and
bearing the Registrar's rubber stamp impression of the same date,
19th October, 1989. was brought to my chambers by my Secretary.
I
refused to accept the document. My reason for so doing was that I had
already heard arguments in this matter on 18th October,
1989, the
date for which the case was set down for hearing by the applicant
himself. If the applicant set down the case for hearing
it means he
did not wish to file the Replying affidavit and the pleadings were,
therefore, closed. That being so, the applicant
could not, in all
fairness, be allowed to file any further affidavits especially after
the Respondents had already completed their
arguments. Indeed, the
Registrar ought not to have accepted this belated filing of the
Replying affidavit.

In as far
as it is relevant, the facts disclosed by the affidavits were briefly
that on 15th October, 1988 a degree of Doctor of
Medicine was
conferred upon the applicant by the American University of the
Caribbean. The applicant, who is a citizen of Lesotho,
apparently
returned home. According to him, on 26th January, 1989, the applicant
lodged with the first Respondent an application
for registration as
an intern at Queen Elizabeth II hospital. The date on which the
applicant lodged his application is, however,
disputed by the
Respondents in whose answering affidavits aver that it was on 10th
January, 1989 that the application was lodged.

It is
significant that neither the applicant nor the Respondents have
annexed the application or a copy thereof as a proof of the
date on
which it was lodged with the first Respondent.

4

This
court cannot, therefore, determine on affidavit papers the exact date
on which the application was lodged.

However,
whether it was on 10th or 26th January, 1989 that the application was
lodged is not so material. The important thing is
that on one hand
the applicant contends that once he has submitted the application
supported by his qualifications the Respondents
are, in law, bound to
register and Issue him with a certificate enabling him to serve his
period of internship at Queen Elizabeth
II hospital. They have not.
Instead they require him to sit for an examination as a condition for
his registration and issue of
a certificate enabling him to serve
internship. This the Respondents are not empowered to do by, law.
Their action is, therefore,
ultra vires hence this application.

On the
other hand, the contention of the Respondents is that the University
at which the applicant studied and obtained his qualification
is not
one of those gazetted or prescribed in Lesotho. In order to recommend
to the Minister responsible to gazette or proscribe
the university
the second Respondent requires the applicant to sit for an
examination so as to enable It to assess the courses
or the standard
of the courses, offered at the university from which he (applicant)
has studied and obtained his qualification.
The Respondents concede,
therefore, to have declined to register and issue the applicant with
a certificate enabling him to serve,
internship at Queen Elizabeth II
hospital.

It is
worth noting that although it seems to be common cause that the
applicant's application for registration as an intern was,
for
reasons already stated, turned down by the registering

5

authority
the actual letter by which the application was refused is not
annexed. Para. 11 of the applicant's founding affidavit
refers to
such letter as annexure "E" which is, however, clearly a
letter written by the applicant's father and not the
registering
authority.

S.21(1)(b)
of the Medical, Dental and Pharmacy Order, 1970 stipulates that any
parson who Is aggrieved by the refusal of the registering
authority
to have him registered (as a medical practitioner) may, within three
(3) months, approach the High Court for relief against
such refusal.
The letter by which the applicant's application for registration was
turned down by the Registering authority will
dispel any doubt about
the date on which the appli­cation was refused. For obvious
reasons the importance of annexing such
letter cannot, therefore, be
overemphasized.

In any
event, it must be observed that 5.17 of the Medical, Dental and
Pharmacy Order, supra, provides :

"17. The minister may from time to time, after considering any
recommendation of the council, prescribe by regulation the
degree,
diploma, or certificate granted after examination by a University,
Medical School, Dental School, Pharmacen-tical Society
or other
examining authority, which, when held singly or conjointly with any
other degree, diploma or certificate shall qualify
the holder thereof
for regis­tration in the several registers under this order."
(my underlining)

6

It is
common cause that by Legal Notices 3/72, 12/72 and 9/73 the minister
has, pursuant to the provisions of the above cited section,

prescribed or listed several universities, medical schools, dental
schools etc of which degrees, diplomas or certificates qualify
the
holders thereof for registration in several registers under the
Medical, Dental and Pharmacy Order, 1970. The American University
of
the Caribbean at which the applicant admittedly studied and obtained
his degree is not listed amongst the universities prescribed
by the
abovementioned Legal Notices nor have I been referred to any other
Legal Notice under which this particular university is
prescribed in
terms of the provisions of S.17 of the Medical, Dental and Pharmacy
Order, 1970.

I have
underscored the word "shall" in the above cited section 17
of the Medical, Dental and Pharmacy Order 1970 to indicate
my view
that it is only when and if the minister responsible has by
regulation, prescribed a university that it becomes imperetative
for
the holder of a qualification obtained therefrom to be regis­tered
in the several registers under this Order. The subsection
reads :

"(1)
The council shall maintain in its office,

1. a
   provisional register of all persons who have applied to be
   registered in terms of this section but who cannot immediately be

   registered for the reason that their certificates of degrees or
   diplomas or other certi­ficates relating to their
   qualifica-tions
   have not yet been approved by the minister in terms
   of section 17;

   
   

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2. a
   register of all medical practitioners, dental surgeons and
   pharmacists practicing in Lesotho; and

   
   

3. a
   register of all medical practitioners who are undergoing training as
   interns in terms of section 16 (1A)." (my underlining)

   
   

4. 
   

Assuming
the correctness that the American University of the Caribbean from
which the applicant has obtained his qualification is
not as yet
prescribed in terms of the provisions of S.17 of the Medical, Dental
and Pharmacy Order, 1970 it necessarily follows
that the applicant
cannot be heard to say the first and second Respondents, who are the
registering authority must enrol him under
either register (c) or
register (b). In my view the applicant can only be provisionally
enrolled under register (a) i.e. temporarily
and pending the approval
of his qualifications by the minister responsible in accordance with
the provisions of section 17 of the
order.

I was
told in argument that the register referred to under S.14 1) (a) is
meant for people who come to Lesotho after they have been
practising
medicine in other countries.

I have
underlined the words "all persons" in the above cited
S.14(1) (a) to indicate my view that the register therein
referred to
caters for all medical practitioners whose quali­fications are
awaiting the minister's approval in terms of the
provisions of S. 17
of the Order regardless of whether they have previously been
practising medicine elsewhere or are fresh from
school and,
therefore, intend to be enrolled as interns.

8

I now
turn to the requirement that the applicant should write an
examination. It is to be borne in mind that S.17 of the Medical,

Dental and Pharmacy Order 197 enjoins the minister to act after
considering the recommendation of the second Respondent. The law

gives no guideline as to what the second Respondent must take into
account in recommending to the minister that any given qualification

should be prescribed. However, I am of the view that the second
Respondent must, at all times, ensure that only qualifications
of
generally approved standard in the field of medicine are recom­mended
to the minister for approval. Failure to do so may
result in serious
repurcasions in the sense that if the second Respondent were to
recommend for approval by the minister qualifications
that are not of
generally approved standard in the field of medicine, sooner or
later, people who should not be practising medicine
in this country
would find themselves meddling with the health of members of the
Public.

The
argument of the Respondent is that the applicant is the first
graduate of the American University of the Caribbean to apply
for
registration as a medical practioner in this country. The Respondents
do not, therefore, know whether or not the standard of
medical
courses taken at that university is comperable to the standard of
similar courses taken at other approved medical universities.
It
seems to me that the purpose of the examination which the applicant
Is to be subjected to is not directly to have him registered
as an
intern. Registration as an intern depends simply on Applicant's
qualifications being prescribed in terms of Section 17 of
the
Medical. Dental and Pharmacy Order, 1970. The Examination is to
enable the second Respondent to assess the standard of the
courses in
which the

9

Application
obtained his qualification with a view to making a recommendation to
the minister that the qualification should be prescribed
in terms of
S.17 of the Medical. Dental and Pharmacy Order, 1970. Assuming the
correctness of the Respondents' contention that
the applicant is the
first graduate of the American University of the Caribbean to apply
for enrolment as an intern in this country
I find nothing
un­reasonable in the requirement that he should be examined to
ascertain that his qualifications are of the
standard generally
approved in the field of the medicine and a recommendation should,
therefore, be made that they be prescribed
in terms of S.17 of the
Medical, Dental and Pharmacy Order, 1970.

From the
foregoing it is obvious that the view that I take is that the conduct
of the Respondents in this case cannot be faulted.
I would
accordingly discharge the Rule with costs.

B.K.
MOLAI

JUDGE

23rd
October, 1989.

For
Applicant : Mr. Hlaoli

For
Respondent : Mr. Sello.