C.of A.(CIV) No.22 of 1989

IN THE LESOTHO COURT OF APPEAL

In
the Appeal of:

KELELLO
MOJELA LEROTHOLI Appellant

and

THE REGISTRAR OF THE MEDICAL, DENTAL

AND
PHARMACY COUNCIL OF LESOTHO First Respondent

THE MEDICAL, DENTAL AND PHARMACY

COUNCIL
OF LESOTHO Second Respondent

THE MINISTER OF HEALTH Third Respondent

THE ATTORNEY GENERAL Fourth Respondent

Held at Maseru

Coram:

Schutz, P Aaron, JA Ackermann, JA

JUDGMENT

Ackermann, JA

In essence this appeal is concerned with the right of
appellant, who holds the degree of Doctor of Medicine (granted to him
by the
American University of the Caribbean on the 15th October
1988), to be registered as an intern on the register prescribed in s.
14(1)(c)
of the Medical, Dental and Pharmacy Order, No 13 of 1970, as
amended, ("the Order") for all medical practitioners
undergoing
training as interns in terms of s.16(1A) of the Order.
The applicant caused an urgent

2

application to be launched in the High Court against the
respondents in which a rule nisi was sought in the following terms:

"1 . That a Rule Nisi be issued and returnable at
the time and date to be fixed by this Honourable Court, calling upon
the
respondents to show cause why:

(a) First and Second respondents 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;

(b) 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;

(c) Third Respondent or any of his servants shall
not
be restrained from removing or in any way
tampering with the
Applicant in doing his
practicals 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 3. Granting the applicant such further and/or

alternative relief.

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

On the 27th September 1989 a rule a nisi was granted in
terms of paragraphs 1 ,2 and 3 of, the Notice of Motion, which rule
was discharged
by Molai, J on the 23rd October 1989.

The facts are not in dispute, the main issue being the
construction of various provisions of the Order and the duties of the
first
two respondents in terms thereof.

S. 17 of the Order provides that:

"The Minister may from time to time, after
considering any recommendation of the Council, prescribe by
regulation the degrees,
diplomas or certificates granted after
examination by a university medical school, dental school or
pharmaceutical 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" (emphasis supplied).

In terms of s. 17 of the Order regulations were duly
promulgated by Legal Notice No. 3 of 1972, and amended from time to
time thereafter
(the "regulations") prescribing degrees, di
diplomas and certificates which would qualify such holder for
registration.
It is common cause that neither the degree held by
appellant nor the university medical school which had granted it had
been prescribed
in the regulations. In clause 3 of Legal Notice No. 3
of 1972 the following provisions are set forth:

4

" (a) no person shall be so registered unless the
degrees, diplomas or certificates held singly or conjointly by him
show that
he has passed qualifying examinations in medicine, surgery
and midwifery; and

(b) such degrees, diplomas or certificates shall be
recognised for registration only if the course of study in
professional subjects
covered a period of at least five academic
years and, in addition, the last three years of professional study
for admission to the
examination for such degree, diploma or.
certificate were taken at a university or medical school in the
country or state in which
the degree, diploma or certificate was
granted; and

(c). the holder of such a degree, diploma or certificate
furnishes proof to the satisfaction of the Council that he has,
before or
in connection with or after the obtaining of the said
degree, diploma or certificate, undergone training as an intern or
training
of a like nature for a total period of at least twelve
months after obtaining any of the degrees, diplomas or certificates
entitling
him to registration as a medical practitioner in terms of
these regulations, save that this proviso shall not apply to the
holder
of any such degree, diploma or certificate obtained prior to
the 1st November, 1948; and

(d) if the holder of such degree, diploma or certificate
is not. a Lesotho citizen, he shall before registration furnish proof
to
the satisfaction of the Council that he is registered with the
recognised registering authority of that country or state of which
he
is a national or in which the degree, diploma or certificate was
granted, to practice his profession there by virtue of his
qualifications."

Nowhere is it alleged by appellant that his medical
degree complies with provisos (a) or (b) above.

Ss. 14(1) of the Order, as amended, provides that: "The
Council shall maintain in its office;

(a) a provisional register of all persons who have
applied to be registered in terms of this section but who cannot be
registered
for the reason that their certificates or degrees or
diplomas or other

5

certificates relating to their qualifications have

not yet been approved by the Minister in terms of
Section 17;

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

   
   

3. 
   a register of all Medical practitioners
   undergoing
   training as interns in terms of Section 16 (1A)"

   
   

Ss.
14(4) states that

"There shall be entered into the provisional
register, the names, addresses, qualifications, dates of application
and any other
particulars relating to the applicants"

Ss. 16(1) prescribes that

"Subject to subsection (1A) any person who wishes
to be registered shall submit

1. 
   the certificate of his degree, diploma or
   other
   certificate on which he relies as a qualification
   for
   registration;

   
   

2. 
   such evidence of identity, of good
   character,
   reputation and of the authenticity and validity of
   a
   degree, diploma or certificate submitted, as
   Council may
   require"

   
   

Ss. 16(1A) provides that

"A person who wishes to be registered as an intern
shall apply to the Registrar and shall be issued with a certificate
set out
in Part A of the Ninth Schedule"

6

On the 26th January 1989 appellant submitted an
application for registration as an intern at Queen Elizabeth II
government hospital.

On the 8th March 1989 first respondent addressed a
letter to the appellant informing him that the "Pre-registration
Examination"
for March 1989 would be held on the 28th and 29th
March 1989 at second respondent's office. The attitude of the first
two respondents
was that inasmuch as the university medical school
which had granted appellant his degree had not been prescribed in the
aforementioned
regulations and because applicant could not be
registered in the relevant registers without the university medical
school being so
prescribed, second respondent was obliged to evaluate
the courses of the American University of the Caribbean in order for
it to
recommend to third respondent that this university be
prescribed in the regulations. In order to make such recommendation
the second
respondent decided to evaluate the courses of the
university in question by means of an examination of the appellant.
Appellant declined
to sit for such an examination. In a letter dated
26 April 1989 appellant adopted the attitude that such an examination

"would be an inappropriate method to evaluate the
courses offered by a Medical School, for which information may be
obtained
otherwise. It transgresses the functions of the Medical
Superintendent and the Hospital Medical Supervisors whose role is to
assess
the capabilities of an intern during the prescribed period of
fifteen months, which is not the role of the Medical Council"

The appellant makes the further point in this letter
that he has also not been placed on the provisional register as
provided for
in ss. 14(1)(a) (wrongly referred to by appellant

7 as "Section 3(a)") of the Order. It must
be remembered,

however, that the relief sought be appellant in
paragraph (a) of his Notice of Motion is not for registration on this
provisional
register but only for registration "as an intern."

In argument, however, the appellant under his prayer for
alternative relief sought an order placing him on the provisional
register
but only if paragraph 1 (a) of his Notice of Motion were
granted and not otherwise.

Second respondent persisted in its attitude, however,
and in a letter dated 24 August 1989 informed the appellant that

"The Council can only register applicants who have
graduated at gazetted institutions"

and that at a meeting on August 10, 1989 it had

"unanimously agreed that since you received your
training at an ungazetted institution you should sit a qualifying
examination
before registration".

The second respondent informed the appellant that the
next such examination would be held on the 28th and 29th September,
1989.

The appellant declined to sit such an examination and
instead launched the application which is the subject of the present
appeal.

One of the main contentions advanced by appellant, on
the papers, and persisted in on appeal, is that first and second
respondents
misdirected themselves in claiming an arbitrary right to
re-examine the appellant notwithstanding that these

8

respondents are not designated as the examining
authority in terms of the law and that the relevant law does not
provide for re-examining
of the holder of a certificate for a medical
degree. Appellant argues that the imposition of these examinations
constitutes a gross
misuse of power by a statutory body inasmuch as
the extent of the authority of this body is circumscribed in the
Order and may be
altered only by the law-making organ of the state.
In my view this argument misconceives the purpose and intent of the
examinations
which the first and second respondents invited the
appellant to write.

The Minister may, in terms of s.17, only prescribe a
university medical school "after considering any recommendation
of the Council."
The effect of the above qualification in the
context of the other provisions to which I have referred is that the
registrar, upon
receipt of an application for registration, must, in
the case of an applicant who relies on a degree granted by a
university medical
school not prescribed by the Minister in the
regulations, register the applicant in the provisional register (the
"provisional
register") required by ss. 14(1)(a) of the
order. The provisions of this ss. are mandatory, requiring that "The
Council
shall maintain in its office ... a provisional register of
all persons" who fall in" the above category of applicants,
such applicants being hereinafter referred to as "provisional
applicants". The provisions of ss. 14(4) are also mandatory
stipulating that certain prescribed information concerning
provisional applicant and their applications "shall be entered
in
the provisional register" by (inferentially) the registrar.
Although the order is si lent as to the next step in the application
for

9 provisional registration it follows (by necessary
implication)

that the Council is then obliged to make the
recommendation to the Minister referred to in s.17 in order that the
Minister can decide
whether or not to prescribe by regulation the
university medical school degree relied upon by the provisional
applicant.

The Council is clearly not empowered to prescribe
examinations as an additional condition for registration. It is clear
on the papers,
however, that in calling on appellant to write such
further examinations the second respondent was not purporting to lay
down additional
conditions of registration, but merely investigating
the appellant's competence in order to make its recommendation to
third respondent
(the Minister). It has been argued that this is not
an appropriate way of evaluating the quality of the university
medical school
degree in question. That may or may not be so. It is
premature, however, to decide such a matter at the present stage of
appellant's
application for registration. The recommendation which
the Council makes to the Minister is not an act which affects the
appellant
or his rights. It is merely an act imparting information
and an opinion to the Minister. The Minister must still consider the
recommendation
and come to a decision concerning the recognition of
appellant's medical degree. It is only the Minister's decision which
can effect
any rights or expectations of the applicant. The fact that
second respondent may not be using the correct or most appropriate
means
to evaluate the standard or quality of appellant's degree is
not a fact which grounds any action at this stage.

10 In second respondent's answering affidavit deposed to
by its

President, it is stated that

"The only satisfactory method that Second
Respondent, in line with the practice of most of the world, is aware
of of assessing
that standard, is to subject the holders of such
degree to an examination considered fair for the holders of
recognised degrees."

This averment is not challenged on the papers. For
purposes

of this appeal it would therefore be impermissible for
this

Court, whose members are lay persons as far as the
science or

practice of medicine is concerned, not to accept
this

statement. At the same time, however, it must be stated
that

it is difficult to understand how this can be the
only

satisfactory method for assessing the standard of the
degree

in question. There seem to be many other avenues which
it

would be appropriate to explore, for example whether
the

medical degree of the university in question is
recognised by

any other country and, if so, in which countries; who
the

members of the medical school faculty were and are and
what

their qualifications are; whether graduates of the
university

practice outside the country in which the university
medical

school in question is situate; what the standing of such

graduates is in the eyes of the leaders of the
international

medical profession, and how the quality of the medical
school

is viewed by other medical councils in other countries.
It

must be borne in mind that the ultimate function of the

Minister in terms of s. 17 of the Order is to determine
the

quality of. the medical degree conferred by this
particular

university medical school and not the competence of
the

applicant. One can conceive of a case where a graduate
of

this particular medical school receives further training
at

some other medical school without receiving any formal
degree,

11

diploma or certificate from this other school. In any
subsequent examination such graduate may perform exceptionally well ,
in which
case it would be difficult, if not impossible to decide,
whether such performance was due to the instruction at the first
medical
school. I refrain from any further comment because, as I have
already indicated, this issue does not fall to be determined at this
stage. I think it necessary and advisable to point out, however, that
if, on a proper construction of the Order, the appellant is
entitled
to be registered as an intern in terms of ss. 14(12) (c) read with
ss. 16( 1A), such right may not be frustrated by the
second
respondent obliging the appellant to undergo any further examination,
or indeed to comply with any further condition, before
so registering
him.

This clears the way for considering the crucial issue in
the appeal, but before doing so it is necessary, in order to avoid
possible
confusion, to allude to the way in which the words
"application" and "apply" are used in the Order
and in this
judgment. Ss. 14(1)(a) refers to "a provisional
register of all persons who have applied to be registered in terms of
this section
but who cannot immediately be registered because ..."
(emphasis added). Ss 16(1) requires that "subject to subsection
(1A),
any person who wishes to be registered shall submit"
certain prescribed documents and evidence. Ss. 16(1A) stipulates that
a
person who wishes to be registered as an intern "shall apply
to the registrar . . . ". On a proper construction the Order
does not require different applications for registration on the ss.
14(1)(a) register (the "provisional register"), the
ss.
14(1)(b) register (for present purposes the "register of medical
practitioners") or the ss. 14(1)(c) register (the
"internship
register"). There

12

is no express provision for separate applications. The
phrases I have emphasized above in the quotation from ss. 14(1)(a)
refer to
a general application directed at obtaining registration on
the register for medical practitioners. The registration on the
provisional
and internship registers are but different stages (or a
possible stage in the case of provisional registration) leading to
the final
goal of registration on the register for medical
practitioners. The submission of. certain documents and evidence
required by ss.
16(1) relates to the very first stage of the
application directed to the above final goal. Provisional
registration requires no further
application, documents or evidence.
It takes place automatically in the circumstances detailed in ss.
14(1)(a) to which reference
has already been made. Similarly
internship requires no further application or documentation but
follows on the initial application
with its documentation and
evidence.

The cardinal question to be decided in this appeal is
whether the first and second respondents can be compel led to
register the appellant's
name in the internship register at a stage
when the degree held by appellant has not yet been prescribed by the
Minister.

Mr. Hlaoli, who appeared on behalf of the appellant,
presented his argument on the following lines. The appellant was in
possession
of a medical degree granted to him by a university medical
school. He has applied for registration in terms of s. 14(1). He
cannot
immediately be registered on the ss. 14(1)(b) register because
the Minister has not yet prescribed the appellant's degree.
Nevertheless
he is thereby qualified to be registered on the
provisional register. Ss. 14(1)(c)

13 refers to "all medical practitioners"
who are undergoing

internship training. "Medical practitioner" is
defined in s.2 as "a person registered as such under this
order".
Appellant is entitled to provisional registration. Upon
such registration (which the first and second are denying him) he
will be
a person registered under this order and therefore, in terms
of the s. 2 definition a medical practitioner. Accordingly he is
entitled
as a medical practitioner to be registered as an intern in
terms of ss. 14(1)(c), inasmuch as being a medical practitioner is
the
only prerequisite for such registration. Accordingly he will also
be entitled to the certificate referred to in ss. 16(1A).

Mr. Sello, on behalf of the second respondent (there
being no appearance for the other respondents) contended that the
"medical
practitioner" referred to in ss. 14(1)(c) and the
person entitled to the issue of a 9th Schedule Part A certificate
could only
be a person in possession of a degree prescribed by the
Minister in terms of s. 17, but who is precluded from registration as
a medical
practitioner in terms of ss. 14(1)(b) only because he had
not yet obtained a certificate that he has completed his internship.

Inasmuch as the issues raised are not capable of
obviously easy solution, depending as they do on the construction of
various provisions
of the Order and regulations, it is necessary to
trace their history, to determine the present scheme of the Order and
Regulations
and, in the light thereof, to construe them in their
present amended form. In embarking on this task it is necessary to
keep in mind
certain principles of statutory construction. One of
these principles is that "no clause, sentence or word shall
prove superfluous,

14 void or insignificant, if by any other construction
they may

all be made useful and pertinent." (Craies on
Statute Law, 7th ed. p. 105 relying on R. v Berchet (1690) 1 Show.
108 and

see also East London Ry. v. Whitechurch (1874) L.R.H.L.
81 at

91). Another relates to the avoidance of absurdity,
which

rule was succinctly expressed as follows by Finnemore,
J. in
Holmes v Bradfieid R.D.C. (1949) 2KB 1 at 7:

"The mere fact that the results of a statute may be
unjust or absurd does not entitle this court to refuse to give it
effect,
but if there are two different interpretations of the words
in an Act, the court will adopt that which is just, reasonable and
sensible
rather . than that which is none of those things."

In Hatch v Koopoomal 1936 A.D. 190 at 209 Stratford,
JA observed that:

"... the degree of absurdity or repugnance is of
importance as it bears upon the intention of the enactment under
discussion.
If, examining results, you find absurdity or repugnance
of a kind, which, from a study of the enactment as a whole, you
conclude
the Legislature never could have intended, then you are
entitled so to interpret the enactment as to remove the absurdity or
repugnance
and give effect to the intention of the Legislature."

Moreover in construing the provisions of the order as
amended we must consider

"1) what was the law before the measure was passed;
2) what was the mischief or defect for which the law had not
provided; 3)
what was the remedy the legislator had appointed; and 4)
the reason for the remedy." (Hleka v Johannesburg City Council
1949
(1) SA 842 A at 852).

According to its long title the object of the Order, is
inter alia "To provide for a Medical, Dental and Pharmacy
Council."
S.3 duly mandates the establishment of such a council
and other sections provide for its composition, membership,
operation, duties
and other matters related thereto.

15

While provisions enacted for medical practitioners in
the Order are in most, if not all, cases made simultaneously
applicable to dental
surgeons and pharmacists I shall only refer to
the provisions insofar as they relate to medical practitioners.

In terms of ss. 14(1) the Council is mandated to
maintain

registers of all registered medical practitioners,
dental

surgeons and pharmacists practising in Lesotho. Ss.
14(2)

provides for, but does not mandate, the establishment
and

maintenance of a register of paramedical personnel.
The

object of s.secs. 15(1) and 15(2) is to prohibit persons
other

than Lesotho residents from being registered as
medical

practitioners but in terms of ss 15(3) provision is made
for

the registration in a separate register, for such
periods and

on such conditions as the Council might determine, of
medical

practitioners entering Lesotho for employment, either in
the

capacity of a locum tenens or for a salary or for
purposes of

private practice. Save for this register, there
was

originally only one register for medical practitioners,
namely

that provided for in ss. 14(1), a register of
"medical

practitioners ... practising in Lesotho."
When, however,

"medical practitioner" was originally
defined in s.2 as

meaning "a person registered as such under this
Order" the "as

such" could not be construed as meaning only a
medical

practitioner registered on the ss 14(1) register,
i.e. a

medical practitioner registered as one "practising
in Lesotho"

but had of necessity also to include a medical
practitioner

registered in the ss. 15(3) register. If this were not
so,

the ss. 15(3) practitioner would fall foul of the penal

provisions ins 24 which, inter alia, render it an
offence for

16

any person not registered as a medical practitioner to
practice for gain as a medical practitioner.

In the 1970 Order, as it stood prior to the 1988
amendment, no provision was made for the registration of medical (or
any other) interns,
nor indeed for the institution of medical (or any
other) internship.

In terms of ss. 16(1) before its amendment every person
who wished to be registered (in any of the registers) had to apply in
writing
to the registrar and had to submit the certificate of his
degree, diploma or other certificate on which he relied as a
qualification
for registration and, in addition, such evidence of
identity, of good character, reputation and of the authenticity and
validity,
of the degree, diploma, or certificate submitted as the
Council required.

In terms of ss. 16(3), (which was not amended) if the
Registrar is not satisfied as to the documents or facts submitted he
has to
submit them to the Council for decision. In terms of ss.
16(5), (also unamended) if the Registrar is satisfied (and by
necessary
implication if the Council is satisfied in the event of a
ss. 16(3) submission to the Council) the Registrar is obliged, upon
payment
by the applicant of the prescribed registration fee, to

"register the applicant and issue to him a
certificate that he is registered in the register applicable to him."

In terms of clause 2 of the Order as it stood in 1970
"register" was defined as meaning

17

"when used as a noun, a register kept in accordance
with the provisions of this Order, and when used in relation to any
class
or member of any class of persons in respect of which a
register is kept, means the register kept for that class, and when
used as
a verb means to enter in such register; and the words
"registered," "registrable", "registration"
and
all other words formed with or derived from the word "register"
shall have a corresponding meaning".

I refer to the former definition of "register"
at this stage in order to point out that, even in 1970, the
definition was
ambiguous when applied to other provisions of the
Order and could not in all respect be taken strictly literally.
Whereas the phrase
"class or member of any class of persons in
respect of which a register is kept" in the context clearly
relates to the
three different professions dealt with in the Order
and the different registers kept for each profession, the singular
use of the
word "register" in the phrases "a register"
and "the register" cannot be taken literally, because the
Order unambiguously provided, at that time, for two registers in
respect of each class, namely the ss. 14(1) register and. the ss.
15(3) "separate register" for a person not intending to
reside permanently in Lesotho.

Whereas the Order makes provision for a Council, for
professional registers, for applications for registration and for
acts of registration,
the Order itself does not lay down the
qualifications or training that a person must possess which would
entitle him to registration.
The authority do so has been entrusted
by s.17 to the Minister of Health, after considering any
recommendation of the Council. The
important provisions of s.17 were
not been amended by the 1988 Order.

For present purposes the relevant part of s.17 provides
that -

18

"The Minister may from time to time ... prescribe
by regulation the degrees, diplomas or certificates granted after
examination
by a university medical school ... 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"

Quite clearly, as the Order was enacted in 1970, the
phrase "shall qualify the holder thereof for registration in the
several
registers under this order" then referred to all the
registers referred to in the order at that date, namely the two
registers
for residents and non residents of Lesotho respectively,
referred to above, in respect of each of the three professions.

When the words "degrees, diplomas or certificates"
are used in the first part of s.17 they are qualified by the words
"granted
after examination by a university medical school,
dental school or pharmaceutical society or other examining authority"
(which
bodies are hereinafter collectively referred to as the
"examining authority") but when used in the latter part of
the section
in the phrase "when held singly or conjointly with
any other degree, diploma or certificate" no such qualification
is added.
This second use of the words "degree, diploma or
certificate" is also not qualified in any way (as, for example,
if the
words "such" had appeared between the words "other"
' and "degree") to indicate that these documents
are the
same as those referred to in the first part of the section. It
follows, therefore, that the degree, diploma and certificate
mentioned in the latter part of the section need not be a degree,
diploma or certificate granted "after examination" nor
even
by an examining authority. The further implication of this
construction is that while the

19 minister may prescribe another degree, diploma or
certificate

(without examination) as a qualifying condition for
registration, he may only do so conjointly with a degree, diploma or
certificate
"granted after examination" by an examining
authority. In other words he may not as sole qualification prescribe
a document
which has not been granted by an examining authority of if
granted by an examining authority has not been granted after
examination.

Whether or not the American University of the Caribbean
is a prescribed examining authority, in the present case the
appellant's degree
certificate does not even indicate that the degree
was granted after examination, nor is there any such allegation in
the papers.
The fact that appellant's degree was granted after
examination was however formally admitted by Mr. Sello.

At a stage in the argument the Court expressed some
doubt as to whether proviso (c) ("the internship proviso")
to clause
3 of the regulations was intra vires the Minister's powers
in terms of s.17 which only empowers him to prescribe documents,
namely
"degrees, diplomas or certificates". The internship
proviso requires the furnishing of "proof" which is a wider
concept than that embodied in the phrase "degree, diploma or
certificate".

In construing the internship proviso as a piece of
delegated legislation the Court ought to avoid, if possible, a
construction which
will render it invalid on the grounds of it being
ultra vires. (See R v Vayi, 1946 NPD 791 at 792 and R. v. Pretoria
Timber Co. (Pty)
Ltd. and others 1950(3) SA 163(A) at 170). The
present is in my view a proper case for

20 construing the word "proof" in the
internship proviso as

meaning "proof by a degree, diploma or
certificate", which will avoid a conclusion that the internship
proviso is ultra

This clears the way for considering the effect of the
amendments to the Order introduced by the 1988 Order and for
construing the
Order as amended.

The effect of the amendments is two-fold. Firstly they
introduced the concept of internship into the Order itself (a) by
providing
for an application for registration as an intern, (b) by
prescribing certain certificates when dealing with the internship
application
and internship training (all the aforegoing by means of
the new s. secs. 16 (1A) , 16(1B) and 16(1C) and (c) by providing for
the
maintenance of an internship, register by means of the new s.s.
14(1)(c). Secondly the concepts of a provisional register and
provisional
registration were introduced through the new ss. 14(1)(a)
and ss. 14(4). The definition of "register" in s.2 was
replaced
by a new definition of "registers" meaning:

"when used as a noun, a register or provisional
register kept in accordance with the provisions of this Order, and
when used
in relation to a class or member of any class of persons in
respect of which a register or provisional register is kept, means
the
register or provisional register kept for that class, and when
used as a verb, means to enter in such register or provisional
register"

The only effect of this amendment, for present purposes,
was to bring the definition in line with the fact that there were now
provisional
registers in addition to registers.

21 "The task of construing the amended Order has
been considerably

complicated by the singularly inept draftsmanship of
the

amendment. It is true that ss. 14(1)(c) provides for
a

register "of all medical practitioners who are
undergoing

training as interns in terms of section 16(1 A)";
ss. 16(1A)

for an application by "a person who wishes to be
registered as

an intern", and for the issue to such applicant of
a 9th

Schedule Part A certificate; ss. 16(1B) for prescribed
forms,

duly completed, to be submitted to the registrar by a
person

"who has completed training as an intern";
ss. 16 (1c) for

the Council to "withdraw its approval and require
alternative

or additional training"; ss. 16(6) for the
Council to

"exempt" under certain conditions" a
person from the

requirements of training as an intern" and ss.
16(7) for a

person "who was recognized as an intern by the
Council before

the coming into operation of this Order" not
having "to

undergo training in terms of subsection (1B)."
This

notwithstanding, there are no provisions in the amended
Order

which actually prescribe internship training, (such as,
for

example, in s.20 of the pharmacy Act No 53 of 1974 in
the

Republic of South Africa), institute an activity such
as

internship training or define internship training.
The

reference to "training in terms of subsection (1B)"
in ss.

16(7) is a meaningless expression inasmuch as no
training

takes place "in terms of" ss. 16(1B); this
latter sub-section

only provides for the completion and submission of
particular

forms to the Registrar. Nevertheless it appears from
the

provisions of the Order that persons were recognized
as

interns prior to the coming into operation of the
amending

Order, The power given to the Council in ss, 16(6) to
exempt

a person "from the requirements of training as an
intern" is

the clearest possible indication that the legislature
intended

22

to
institute by statute, or regularise by statute, internship

training in Lesotho. Moreover, the power granted to the
Council in this same sub-section to grant such exemption and to
register the
person exempted under ss. 14(5) (which is the final step
in the registration of a person as a medical practitioner) is
likewise a
clear indication that the legislature intended to make
internship training a qualifying requirement for registration as a
medical
practitioner in terms of ss. 16(5) read with ss 14(1)(b).

The principles according to which a term may be implied
in a contract are well established. Two classic statements are to

be found respectively in Reigate v Union Manufacturing
Co

(Ramsbottom) (1918) 1 KB 592 where Scrutton LJ said
that:

"A term can only be implied if it is necessary in
the business sense to give efficacy to the contract, i.e. if it is
such a term
that it can confidently be said that if at the time the
contract was being negotiated someone had said to the parties: "What
will happen in such a case?"¹ they would both have
replied: 'Of course so and so will happen; we did not trouble to say
that; it is too clear.'

and in Shirlaw v Southern Founderies (1926) Ltd (1939)
2KB 206 at 227 where MacKinnon L.J. remarked as follows:

"Prima facie that which in any contract is left to
be implied and need not be expressed is something so obvious that it
goes
without saying; so that, if while the parties were making their
bargain an officious bystander were to suggest some express provision
for it in their agreement, they would testily suppress him with a
common, 'Oh, of course.'

This principle is clearly established in the same terms
in South African law (see, for example, Mullings (Pty) Ltd v Benade
Ltd 1952(1)
SA 211 (A) at 214F-215C).

23 'The principle also finds application in
statutory

construction, although it is to be kept in mind that, in
the case of a clear casus omissus, a court may not supplement the
provisions
of a statute:

"The intention of the legislature, however obvious
it may be, must no doubt in the construction of statutes be defeated
where
the language it has chosen compels to that result, but only
where it compels it"

(London and India Docks Co. v. Thames Steam Tug, etc.
Co.

(1909) AC 15 at 23 per Lord Atkinson).

Nevertheless, words may by implication be introduced
into a statute if it is necessary to do so to give the language sense
and meaning
in its context (see Maxwell on Interpretation of Statutes
11th ed. p. 12).

In South African Medical Council v Maytham 1931 TPD 45
at 47 Greenberg, J. expressed the view that he

"(did) not see any reason why the principle which
applies to the interpretation of contracts should not be applied to
the interpretation
of a statute, namely, that you must only make such
an implication as is a necessary implication"

and then referred with to approval to various cases on
contract, including Reigate's case, supra, in order to establish the
applicable
principles.

In my view these principles must be applied in the
present case for, if not, the establishment of a register of medical
practitioners
undergoing training as interns will be rendered
nugatory as well as all the other provisions in the Order that I have
referred to.

24

The Court is, in the instant case, obliged to imply a
provision in the Order which institutes a system of internship
training as a
qualifying prerequisite for registration as a medical
practitioner in terms of ss 16(5). By implication this training is -

(a) to be undertaken in an institution recognized
and
approved by the Council (as referred to in the

second proviso of ss 16(1B);

2. 
   for the periods and in the manner detailed in
   the
   remaining provisions of ss 16(1B); and

   
   

3. 
   subject to the conditions and rights of the
   Council
   referred to in the remaining sub-sections
   of
   section 16.

   
   

If such provisions are implied the difficulties I have
referred to disappear and it is possible to harmonise all the
provisions in
section 14 and 16 with each other and with the
remaining provisions of the Order. In short, it will avoid the
absurdity of having
provisions for applications, the issuing of
certificates and the registration of applicants and successful
trainees hanging in limbo
because no system of training has been
instituted.

The next matter to consider is the legislature's
intention in amending the Order so as to introduce the concepts of a
provisional
register and the act of provisional registration. Quite
apart from any other reasons for the introduction of the amendments
it seems
to met that a sufficient reason for the

25 amendment would have been the desire of the Council
to have a

proper record of persons who have submitted applications
for registration as medical practitioners but whose applications can
proceed
no further because of the fact that their degrees or other
documents have not yet been approved by the Minister in terms of
s.17.
There would be advantages to such a provisional register in the
sense that if constitutes a permanent, official and incontrovertible
record of the fact that an application has been made and that degrees
and other documents have been submitted in support thereof.

Against this background I turn to the final question
to be

answered, namely, what qualifications, in the broad
sense of

the word, must a person possess to qualify for
registration as
an intern in terms of ss. 14(1)(c) and 16(1A)?

The Order contains no express provision stipulating
these requirements. Ss. 16(1A) provides no assistance, for it simply
refers to
"a person" who wishes to be registered. The
Council is obliged to issue a 9th schedule certificate to such
person. Clearly
it cannot be any person, including a lay person. Some
limitation is necessary, but where does one draw the line? The only
other indication
in the Order is the description of the internship
register in ss. 14(1)(c) namely, a register "of all medical
practitioners
who are undergoing training as interns" in terms
of ss. 16( 1A). The Court experienced some initial difficulty in
ascribing
a sensible meaning to the words "undergoing training"
in this phrase. On reflection it can only mean that a 9th Schedule
Part A certificate has, in terms of ss. 16(1A) been issued to an
applicant. In such certificate the applicant's registration for
a
period of not less than fifteen (15) calendar months is

26

recorded
at a particular hospital specified in the

certificate. The only sensible construction is to
regard the

issue of this certificate as the commencement of
the
applicant's "training as an intern".

Possible assistance may be gained, in the absence of any
other indication, from the meaning to be ascribed to "medical
practitioners"
in ss. 14(1)(c).

In terms of s.2 "medical practitioner" means
"a person registered as such under this Order." It would
lead to
absurdity if this literally meant a person registered in the
s.14(1)(c) register of medical practitioners " ...practising in
Lesotho" because this would mean a person who had already
completed an internship satisfactorily and been registered. It cannot
refer grammatically to a person registered on the provisional
register, because this register is not a register of "medical
practitioners" but simply a register of "persons", who
do not yet qualify to be put on the ss 14(1)(b) register of
"medical
practitioners".

In the end we are left with nothing but the words
"medical practitioners" themselves in ss. 14(1)(c). This
can only mean
something less than a person already registered as a
medical practitioner and something more than a lay person who has no
degree
or other prescribed document from an examining body. A totally
lay person would not be able to proceed to the internship
registration
stage of an application for registration because he
would have been unable to comply with the provisions of ss. 16(1 )(a)
of the
Order, i.e. he would have been unable to have submitted to the
registrar, any medical degree, diploma or other certificate.

27

To permit a person to be registered as a medical intern,
and thus to undergo training as a medical intern, before the
degree, diploma
or certificate or the examining authority which
granted such document, has been approved and prescribed by the
Minister could
lead to most unsatisfactory consequences.
Although there is no evidence before Court as to why a medical
internship is necessary
and what it involves, these facts are, at
least in general, so notorious that a court is entitled to take
judicial notice thereof.
An internship is necessary because a
medical graduate lacks the necessary practical experience immediately
after receiving his
degree from an examining authority to be allowed
to practice as a medical practitioner without further practical
experience and training.
Such a person is required, in the public
interest, to undergo a further period of practical training, duly
supervised, at a recognised
hospital or other medical institution
which has the necessary patients and facilities for this purpose.
Although generally
supervised by experienced medical
practitioners in his dealing with patients, there are not
infrequently occasions when the
intern must deal with patients
unassisted and unsupervised. In such situations he may be required,
in an emergency, to perform active
preliminary intervening steps on a
patient before a suitably qualified practitioner can be summonsed.
Perhaps even more important,
he is required, in such a situation, to
be able to assess the condition of a patient with sufficient skill to
be able to detect when
the condition of the patient is such that
the attention of an experienced medical practitioner is
necessary. To allow a
person to perform these important functions
when the Minister has not yet decided upon the competence of the
examining authority
which has granted

28

such person his degree is to run the risk that such
person may be quite unqualified to perform these important duties as
an intern
and to place the health and even the lives of patients at
risk. Such a situation appears to me to be decidedly against public
policy.
It is very difficult to conceive that this could have been
the legislature's intention, when the very purpose of the Order is to
ensure, inter alia, that only properly qualified persons should serve
the public as medical practitioners, unless such intention
is clearly
expressed in the Order. This entire judgment is indicative that far
from being clear, such intention has been shrouded
in obscurity.

The only reasonable construction which, in the
circumstances, can be given to the sub-sections in question, and this
is the construction
we are driven to place on them, is the following:
apart from the other requirements set forth in ss. 14(1) (c) and
16(1A) of the
Medical Dental and Pharmacy (Amendment), Order, 1988,
no applicant may be registered as an intern in terms of these
sections until
the applicant's degree, diploma or certificate, in the
sense used in s. 17 of the Order, has been prescribed by the Minister
by regulation
in terms of s.17.

It follows from the aforegoing that the appellant is not
entitled to any of the relief sought by him in his Notice of Motion
and that
his appeal can accordingly not succeed.

The consequence hereof is that the appellant, due in
part at least to the obscurities in the Order resulting from inept
draftsmanship
(which we trust will be speedily and suitably
rectified) has pursued an abortive application for registration as an
intern. He finds
himself in the invidious

29

position that, until the Minister has come to a decision
as to whether he ought, in terms of s.17, to prescribe the
appellant's degree,
he cannot proceed to his internship and will
suffer prejudice so long as this uncertainty persists. We have
indicated the difficulties
we have with the Council's approach,
namely that an examination is the only satisfactory method of
qualifying itself to advise the
Minister for the purpose of s.17. It
is difficult to understand why the Council could not, by means of the
speediest possible communication
with the medical bodies of control
or the medical schools in the Southern African states, the United
Kingdom or the United States
of America (many of which medical
schools and their degrees have been prescribed by regulation pursuant
to the provisions of s. 17),
qualify itself to advise the Minister.

We also have some difficulty with the attitude adopted
by the appellant. While we are not persuaded that the examination
proposed
by the Council is the only method it could adopt, if this
will satisfy them that the university which granted him his degree is
an
acceptable examination authority, we see no good reason why he
should not have acceded to their request. It is to be hoped that both
sides will adopt a more flexible attitude.

In the result the appeal is dismissed with costs.

L.W.H. ACKERMANN JUDGE OF APPEAL

30

W.P. SCHUTZ PRESIDENT

S. AARON

JUDGE
OF APPEAL

Delivered
at Maseru this 13th day of

March
1990.

For appellant: For respondent: