Court name
Supreme Court
Case number
SA 23 of 2004
Case name
Minister of Health & Social Services v Lisse
Media neutral citation
[2005] NASC 8











CASE
NO. SA 23/2004



IN THE SUPREME COURT OF
NAMIBIA



In
the matter between:







THE
MINISTER OF HEALTH & SOCIAL SERVICES APPELLANT











And











EBERHARD
WOLFGANG LISSE RESPONDENT











CORAM: O’Linn,
A.J.A., Chomba, A.J.A. et Gibson, A.J.A.



HEARD
ON: 22/06/2005



DELIVERED
ON: 23/11/2005







APPEAL
JUDGMENT







O'LINN,
A.J.A.:
This is a judgment on an appeal by the Minister of
Health and Social Services against the whole of the judgment of
Mainga J delivered on the 8th December 2004 in the Court a
quo
, being the High Court of Namibia.







For
the purpose of convenience, I have divided this judgment into
sections being:







I: INTRODUCTORY
REMARKS.







II: THE
REASONS FOR THE MINISTER’S DECISION AND ANALYSIS THEREOF.



III: THE
LAW APPLICABLE.



IV: FINAL
CONCLUSIONS AND REMARKS.







I: INTRODUCTORY
REMARKS
:



I
will hereinafter refer to the appellant and respondent respectively
as the Minister and Dr Lisse. The Hospital and Health Facilities Act
36 of 1994, will hereinafter be referred to as "the Act".







Mr
Khupe appeared before us for the Minister instructed by the
Government Attorney and Mr Corbett, instructed by Engling Stritter
and Partners, for Dr Lisse.







The
background to this appeal can be summarized as follows:







1. Dr
Lisse is a duly registered medical practitioner, a specialist
obstetrician and gynaecologist and he is authorized to practice as
such in terms of the Medical and Dental Professions Act, 1993 (Act 21
of 1993).







Dr
Lisse was previously in the employ of the ministry of Health and
Social Services for a total period of 14 years, inclusive of three
(3) years of study leave which was granted to him to specialize in
obstetrics and gynaecology.







On
31 December 2003 Dr Lisse resigned from the Ministry and opened up a
private medical practice in Windhoek. He as a result obtained a
license, in terms of Section 31 of the Act, to operate consulting
rooms as an obstetrician and gynaecologist. He commenced his private
practice during the month of January 1994. Dr Lisse conducts a large
part of his practice at SWAMED Building but when surgical procedures
have to be performed, he makes use of hospital facilities such as the
operating theatres and patients have to be hospitalised at the said
hospitals.







Since
January 2004, fifty (50) percent of the medical procedures he has
performed have been in State Hospitals, particularly the Windhoek
Central Hospital.







Half
of his patients are members of the State Medical Aid Scheme referred
to hereinafter as PSEMAS. A private practitioner, such as Dr Lisse,
is in terms of Section 17 of the Act, required to apply to the
Minister for permission to engage in the treatment of patients and
perform a medical procedure at State Hospitals. Dr Lisse did apply.







3. When
the Minister refused to grant the required authority, Dr Lisse
applied to the High Court of Namibia to review and set aside the
decision of the Minister; to direct the Minister to issue a written
authorization to the applicant in terms of Section 17 of Act 36 of
1994; and to pay to applicant the costs of the application.







4. Dr
Lisse first approached the High Court for interim relief on the basis
of urgency, but this application was rejected by Silungwe J on 1 July
2004. The grounds for rejection of such relief were summarized by
the learned judge in the following words:







"In
conclusion and weighing up all the necessary considerations, it is
apparent that the applicant had neither established a clear right
nor a prima facie right
to entitle him to the interim
relief sought". (My emphasis added)







The
main application then proceeded before Mainga J who granted the
relief claimed. Thereupon the Minister appealed to this Court
against the said judgment of Mainga J.







5. This
appeal is against the whole of the judgment but the following grounds
were specified in the notice:







"GROUNDS
OF APPEAL







1. The
Honourable Court below, with respect, erred in its decision to set
aside, on review, the Appellant’s decision refusing the above-named
Respondent authority to practise at a State Hospital in terms of
Section 17 of the Hospital and Health Facilities Act, No. 36 of 1994,
because of the Court’s findings that:







1.1 the
Respondent was not afforded a hearing, alternatively, a proper
hearing, before the decision was taken;







1.2 the
Applicant failed to appreciate the Respondent’s right,
alternatively, his legitimate expectation to a fair procedure and
decision making;







1.3 the
Appellant failed to apply her mind properly to the matter at hand
when making the decision and;







1.4 the
decision was, in all the circumstances, unfair, unreasonable and in
conflict with Article 18 of the Namibian Constitution.







2. The
Court below, with respect, also erred in its decision refusing the
remittal of the mater to the Appellant for a reconsideration of the
Respondent’s section 17 (of the Hospitals and Health Facilities
Act, 1994) application with an order that the rules of natural
justice be observed to the extent that the Court ruled that they had
not been observed. This was a matter wherein a remittal was proper
and the Court erred when it found otherwise.







3. The
Court below, with respect, also erred in ordering costs of suit
against the Appellant as the particular circumstances of this matter
did not warrant such order. The Appellant, in making the decision
she made, had performed a statutory and public duty that she was
obliged to, in accordance with the relevant legislation. Even if the
Court had found fault with the decision making-process because of the
effect of the particular constitutional provision (Article 18
thereof), this still was not a matter wherein costs had to follow the
event."







6. The
aforesaid section 17 lies at the heart of the dispute and is
consequently quoted in full:







"17. (1) Subject
to subsections (6) and (7), no practitioner who is not in the
full-time employment of the Public Service shall –








  1. engage
    in the treatment of patients; or













  1. perform
    a procedure,








in
a State hospital or state health facility except with the written
authorization of the Minister.







(2) An
application for authorization under sub-section (1) shall -








  1. be
    in writing;









  1. be
    signed by the applicant;









  1. be
    submitted to the Minister through the superintendent of the state
    hospital or supervisor of the state health facility where the
    applicant intends to practise;









  1. contain
    an undertaking by the applicant that he or she will comply with this
    Act and any rules or regulations applicable to that state hospital
    or state health facility; and









  1. conform
    to any other prescribed requirements.








(3) On
consideration of an application submitted under subsection (2) the
Minister may -








  1. reject
    the application; or









  1. grant
    the application unconditionally or on any one or more of the
    conditions that the applicant shall restrict his or her practice in
    the state hospital or state health facility to –










    1. the
      specified part of that hospital or health facility;











    1. the
      specified type of treatment











    1. the
      specified period or periods; or











    1. such
      other conditions as the Minister may specify in the authorization.









(4) The
Minister may at any time -








  1. withdraw
    an authorization granted under sub-section (3);









  1. amend
    any of the conditions in the authorization; or









  1. impose
    additional conditions in the authorization,








and
shall notify the practitioner concerned in writing, of such
withdrawal or change in the conditions.







(5) A
practitioner who is aggrieved by -








  1. a
    decision of the Minister rejecting his or her application for
    authorization under this section;









  1. a
    condition imposed under subsection (3) or (4); or













  1. the
    withdrawal of an authorization under sub-section (4),








may
after the expiry of six months from the date of the decision
complained of, reapply to the Minister for the grant of authorization
or for the amendment or withdrawal of the condition complained of, as
the case may be, and the provisions of subsections (2) and (3) shall
apply to an application under this subsection.






(6) Notwithstanding
subsection (1) the superintendent of a state hospital may in the case
of a patient requiring emergency treatment, permit a private
practitioner to treat that patient in the state hospital without the
Minister’s authorization.






(7) Notwithstanding
the provisions of subsection (1) the Minister may, subject to the
Public Service Act, 1980, (Act No. 2 of 1980) enter into an agreement
with a practitioner, whether or not such practitioner is employed in
the public service, whereby he or she may treat private patients for
his or her own profit, at a state hospital or state health facility,
upon such conditions as may be specified in the agreement."







7. It
is necessary at the outset to note that an applicant for authority
must undertake in his standard application form to "comply
with this Act and any Rules or Regulations applicable to that State
Hospital or State Health Facility
…"







Furthermore
subsection (3) provides that the Minister may make his approval
subject to certain conditions specified in the section and such
other conditions
as
the Minister may specify in the authorization.







Even
after authorization has been granted, the Minister has wide powers in
terms of subsection (4) to add or amend the conditions and even
withdraw the authorization.







Subsection
(7) further provides for the Minister to enter into an agreement with
a private practitioner to practice at a State hospital.







II: THE
REASONS FOR THE MINISTERS DECISION AND ANALYSIS THEREOF
.







1. The
reasons for the Minister’s decision were only supplied subsequent
to her final decision and only when requested to do so by Dr Lisse
and/or his legal representatives.







2. The
first set of reasons were supplied by Mr Khupe, purportedly acting
for the Government Attorney, in a letter with the letterhead of the
Attorney-General dated 7th April 2004.






Mr
Khupe not only wrote the letter, but appeared for the Minister in
this matter in the High Court as well as before us. The letter read
as follows:







"RE: NON-AUTHORIZATION:
DR. E. LISSE







Please
note that the Ministry of Health & Social Services has referred
the above-matter to us with instructions that we respond to your
letter to them dated 7th of April 2004.





Our
client instructions are as follows:





1. your
client’s application has not been approved by the Minister and that
decision has been communicated to him. Your client is free to appeal
against the decision if he wishes to in the normal course;







2. your
client knows the reasons for the non-approval but suffice to say that
they include, inter alia;







2.1 his
commencing to practice at the Windhoek Central Hospital without the
prior authorization from the Minister;







2.2 the
numerous complaints levelled at your client by medical personnel at
the Windhoek Central Hospital and which complaints your client
refused to address when asked to do so.







3. there
is no urgency in the matter (arising from the Minister’s rejecting
his application) as your client can always make alternative
arrangements for his "schedule commitments". Your client
has always known of the complaints against him and the possibility of
the Minister not approving his application.







4. your
client must respect and abide by the Minister’s decision and
forthwith cease to practice at the aforesaid hospital as the Ministry
will not allow it.







Those
are our instructions at this stage and we must mention that we still
are yet to obtain the full instructions from our client on this
matter".










3. These
reasons were not supplemented by or on behalf of the Minister in
accordance with the provisions of Rule 53(1)(b) of the Rules of the
High Court and she only attempted to justify these reasons and other
new ones in her answering affidavit.







4. The
letter by Mr Khupe had some strange, unsatisfactory and
unacceptable features. I need to mention the following:







(a) In
the first sentence it states that the matter has been referred to the
attorneys by the Ministry of Health & Social Services with
instructions to respond given by the Ministry. It is not alleged in
this letter that the Minister gave the instructions and that
these are the Minister’s instructions.







There
is a clear legal distinction between the concept "Minister"
and "Ministry. It is therefore important and indeed necessary
for parties in litigation and their legal representatives to keep the
distinction in mind to avoid confusion. The "Ministry" can
be defined as a department of state under a Minister: When a law
provides that a Minister shall decide or act, the decision or act
will be ultra vires and of no force and effect if performed by
the Ministry.







(b) In
the following paragraph marked "1", it is stated inter
alia
: "Your client is free to appeal against the
decision if he wishes to in the normal course". Whether it is
meant to be an "appeal" to the Minister or some other
entity or an appeal merely existing in the imagination of the writer,
is not disclosed.







(c) Paragraph
2 starts of with the allegation: "Your client knows the
reasons for the non-approval
but suffice to say that they include
inter alia…"







On
what ground it is bluntly stated that "your client knows the
reasons
…", is not disclosed. If it was meant to suggest
that those reasons were the complaints by staff, received by Dr
Vries, it makes no sense because at no stage prior to the decision,
was Lisse informed or otherwise aware that the said complaints by
staff would be submitted to the Minister and would become a decisive
reason for the rejection of his application.







To
go further and suggest that there are reasons other than those
expressly stated in the letter, without disclosing those other
reasons, is an abrogation of the principles relating to
administrative fairness and justice, required by Art 18 of the
Namibian Constitution, especially where this attitude is further
demonstrated by the last sentence which reads: "Those are
our instructions at this stage and we must mention that we are yet to
obtain the full instructions of our client on this matter
".
(My emphasis added)







It
appears from this reservation that the Minister and the Government
Attorney representing her wished to use this strategem to keep
the door open for other undisclosed reasons, as they may become
necessary to bolster the case of the Minister. This attitude is also
in conflict with the principles/and policy of transparency to which
the Minister, the Attorney-General and Government Attorney are bound.
The reasons, qualified in this manner and the attitude disclosed
thereby, are also unacceptable to this Court, particularly when, as
in this case, no effort was made to supplement and/or correct the
reasons in terms of the aforesaid Rule 53(1)(b).







(d) It
appears for the first time from part of a record attached to the
supporting affidavit of Dr Kalumbi Shangula, the Permanent Secretary
of the Ministry of Health and Social Services, that Dr Vries, the
under secretary and Dr Shangula had commented adversely on the
application of Dr Lisse and that these adverse comments were
submitted to the Minister for the purpose of deciding the Section 17
application.







It
is clear that the Minister relied heavily on these adverse comments
in making her decision. It follows that Dr Lisse at no stage prior
to the Minister’s decision had an opportunity to controvert the
allegations and opinions of Dr Vries, Dr Shangula and the supporting
opinion of the acting secretary. Furthermore, if Dr Lisse knew that
the complaints of staff were submitted to the Minister and would be
relied on by the Minister when making her decision, he would
certainly have considered amplifying the written response he gave to
Dr Vries.







It
is consequently abundantly clear that the audi alterem partem
rule was completely ignored.







5. The
comments appearing on the application form preceding the signature of
the Minister, reads as follows:







Dr
J B Vries
: "Dr Lisse is a very bad mannered person.
Complaints by WCH staff were lodged against him and he was afforded
the opportunity to respondent to them – being given a deadline. He
never responded until he was stopped to use the facilities. He
undermined authority. It is not recommended for him to be
permitted to use the Windhoek Central Hospital facilities."
This comment was dated 1/4/04.







Then
followed the comments of the undersecretary whose name does not
appear clearly from the record. He merely said:







"I
concur
", as if he was sitting in judgment in some Tribunal
or other. The comment was dated 2/4/2004. There is no indication in
his "concurrence" on what he relied. It seems that he
blindly followed Dr Vries’s comments.







Dr
Shangula – the Permanent Secretary
:







"I
concur with the recommendations of the Senior Medical Superintendent.
These complaints have also reached my office. Dr Lisse can make use
of private hospitals. He is not fit to work in a public hospital".







This
comment was dated 2004/04/02.







The
Minister on 5/4/04 signed the form after deleting the word "approved"
and circling the words "not approved". She did not state
any reason for her decision in the space provided. The reasons for
the Minister’s decision are stated by her for the first time in her
answering affidavit.







It
is clear from the documentation and her affidavit, that she did not
have the views of Dr Obholzer before her and did not solicit such
reasons at any time.







6. It
is not in dispute that the application before the Minister was the
second application by Dr Lisse, submitted through the office of Dr
Vries, after Dr Lisse was told that the first application, submitted
to the Minister through Dr Obholzer, got lost in the "Ministry’s
offices
".







It
is also common cause that the aforesaid first application was
recommended by Dr Obholzer during the period in January – February
when Dr Vries was on leave and Dr Obholzer acted in the place of Dr
Vries as Superintendent of the hospital during the period when Dr
Vries was on leave. It was never explained in the answering
affidavit of the Minister how the first application got lost.







7. Nevertheless
it is common cause, also confirmed in Dr Obholzer’s answering
affidavit, submitted in purported support of the Minister’s case,
as disclosed in such answering affidavits, that Dr Obholzer was
strongly in favour of granting the application of Dr Lisse. He
himself granted applicant leave to commence using the hospital
facilities immediately, pending authorization by the Minister.







Dr
Obholzer is a senior official at the said hospital and is the Chief
Medical Officer (Aneasthetics) at the hospital.






8. It
follows from the above that even though a supporting affidavit was
obtained from Dr Obholzer in the review proceedings in regard to the
issue of Dr Lisse’s authority to practice at the hospital, the
Minister never consulted Dr Obholzer before deciding on the
application. If and when Lisse’s failure to first obtain the
Minister’s authority before practicing became a reason for the
Minister’s decision, Obholzer became a necessary witness. But the
Minister never consulted Obholzer before she finally decided. The
inference from this handling of the application is that either the
ground that Dr Lisse practiced without the Minister’s authority was
an afterthought, alternatively the Minister’s failure
amounted to a grossly unreasonable and arbitrary action which was in
total conflict with the provisions of Article 18 of the Namibian
Constitution, as well as in total conflict with the principles which
are part of Namibian common law. Such failure also demonstrates that
the Minister failed to apply her mind as required by the common law.





The
opinions and recommendations of Dr Vries, Dr Shangula and the
Assistant Secretary which were relied on by the Minister and which
were recorded on the record of Dr Lisse’s second application, as
disclosed by Dr Shangula, were gravely defective. It will suffice to
point out the following aspects:





9. Comments
of Dr Vries
in his "disrecommendation":





(i) "Dr
Lisse is a very badly mannered person
."


My
comment
:


It
is assumed that this statement is based only on the written
complaints by members of staff handed by Dr Vries to Dr Lisse on the
17 March 2004, because no other complaints were ever recorded; Dr
Vries also did not indicate that he was also relying on his own
experience and he did not refer to any specific incidents.





In
the complaints the covering letter by A M Maswahu the Chief
Matron, she herself says:





"It
would be more appropriate if an investigation would be carried out".





Neither
Dr Vries nor the Minister ever acted on this recommendation and no
"investigation was carried out".





The
Chief matron further stated:





"I
would further mention that abuse of position, intimidation and
manifestations of sexual harassment (more especially) at work are
offences according to the Public Service Act (Act 13 of 1995)."





None
of the specific complaints went so far as alleging or imputing
"intimidation" or "manifestation of sexual
harassment". No particulars were ever given of the author of
such complaints, nor of when, where and in what manner these alleged
"offences" were committed.





Mrs
L Kaiyamo, described as "Principal Registered nurse" stated
in the first paragraph of her complaint:





"Dr
A Lisse started working in our theatre during January 2004. Already
at the beginning there was some doubt whether his registration for
practice with our hospital was approved. We were instructed by the
management to hold his list until further notice. Dr Lisse was not
happy about that and wanted to book cases. He approached Dr
Obholzer and Dr Obholzer gave him the go ahead until the registration
papers were available. This was done orally and was communicated to
us through management".





The
issue of Dr Lisse practicing at the hospital without the Minister’s
consent was thus pertinently brought to the notice of Dr Vries and
the Minister.





Nevertheless
Dr Vries did not in his aforesaid comment on the application of Dr
Lisse, refer at all to the issue of the failure of Dr Lisse to obtain
the necessary authority to practice and the Minister did not at any
stage give Dr Lisse the opportunity to explain this failure or any of
the many allegations made against him relating to the allegation that
he "is a very badly mannered person".





L
K Kaiyamo
, after setting out her complaints said:





"Dr
Lisse should understand that theatre staff at W C H Main theatre are
now hesitating to help because he is a difficult person. If he
can change his attitude it may lead to a healthy teamwork
.





We
are still waiting for his preferences and will accord it to him if
available and depends on what the hospital is providing
".
(My emphasis added).








Dr
Lisse in his letter dated 29 March 2004 handed to Dr Vries as his
response, replied in some detail to these and other allegations by
Auguste Shaama, a registered nurse and Ms P N Langa respectively
about an alleged "questionable prescription" and the
sick leave authorized to a nurse Ms Mouton.





Dr
Lisse inter alia stated:





"With
regard to Mrs Kaiyamo’s letter I am not going to respond to
details, since those allegations are stated generally incorrectly,
distorted and are hearsay. I have however never been rude, not
once raised my voice and am not provocative in my language or
behaviour
. I am of the opinion that I have the right to point
out to the staff if I notice that there is a problem
. And
there are problems
. Problems with competence, work
ethics/attitude
, maintenance and hygiene…" (My
emphasis added)








In
the last paragraph of his response Dr Lisse adopted a conciliatory
tone when he said:





"All
in all, I think one should not confuse Cause and Effect, but I wish
to take this opportunity to assure you that I shall do my utmost to
avoid future misunderstandings. In this regards I have decided to
restrict moral communication with nursing staff as much as possible
to the extent necessary to ensure patient care. You previously
indicated to me that a meeting was to be held in the near future with
all stakeholders with regards to list allocation and I would
appreciate to be invited to this meeting with reasonable advance
notice. I also would appreciate if you provided me with a complete
written set of rules that private medical practitioners are expected
to abide by at Windhoek Central Hospital. Can you perhaps provide me
with a fax number under which my secretary can book my patients for
the ward 3 East by fax?"





9. (ii) Dr
Vries
;





"Complaints
by W C H Staff were lodged against him and he was afforded the
opportunity to respond to them – being given a deadline
. He
never responded until he was stopped to use the facilities
".
(The emphasis is mine)








My
comment
:


It
is necessary to distinguish between the actions of Dr Vries and the
Minister. The Minister did not set a deadline. The deadline set by
Dr Vries is from the date of his letter, i.e the 17th of
March – 23 March. It is reasonable to calculate the time given for
the response to run as from Thursday the 18th up to and
including Thursday the 23, the time allowed would be six (6) days,
including Saturday and Sunday and Monday the 21st, which
was a holiday. This deadline for a busy professional to attempt to
reply in writing to the large number of allegations, was grossly
unreasonable. Furthermore it was not sanctioned by any law,
regulation, code or practice.





Dr
Lisse explained in his founding affidavit that he wished to reply as
soon as possible but was very busy and tried to find time for
examining any records and/or notes that may be available and to
consider his response properly and could not meet the unilateral
deadline imposed by Dr Vries.





On
the 24th March he received a reminder. He only completed
his response on the 29th March which was also the date of
his written reply. He sent that reply to Dr Vries per registered
post on the same day, i.e on the 29th March. The response
was thus provided within seven (7) working days.





Notwithstanding
the fact that the response was provided within a reasonable time, Dr
Vries by fax notified Dr Lisse on the 31st March:





"Please
be informed that you are not permitted to use the Windhoek Central
Hospital facility with immediate effect. You may continue to see
your already admitted patients until their discharge
.





Please
submit authorization by the Minister before permission will be given
to you to again use the Windhoek Central Hospital facility."








It
must be noted that after condoning the practice of Dr Lisse at the
hospital during March 2004 after the return of Dr Vries from leave,
Dr Vries also now allowed already admitted patients of Dr Lisse to
stay until discharge, notwithstanding the belated attitude of Dr
Vries that only the Minister can grant authority for such practice.





But
to return to Dr Vries’s comment on the 2nd application
by Dr Lisse referred to above. The allegation that Dr Lisse never
responded until he was stopped to use the facilities was clearly
untrue in view thereof that on the facts not in dispute, Lisse
completed his reply on the 29th March, i.e two days before
the fax from Dr Vries dated two days later, i.e the 31st.





This
false allegation was used by Dr Vries to prove the allegation: "He
undermines authority
".





10. The
allegations in the supporting affidavit of Dr Vries
:






(i) "I stopped the Applicant
for both his failure and/or refusal to respond to the complaints
against him and his practicing at the State facility without the
appropriate authorization. I considered his non-response to the
complaints to be insubordination on the Applicant’s part. I felt
he was undermining my authority at the Hospital."





My
Comment
:


The
allegation that Lisse was stopped on both grounds, is neither
borne out by Vries’s letter dated 31/3/04 nor by his
"disrecommendation" dated 1/4/2004 to the Minister as it
appears on the application form.





The
letter of the 31st March 2004 is written under the heading
of "non-authorization-yourself" and only deals with
that subject whereas his recommendation dated 1/4/04, one day later,
only deals with the complaints by staff and Dr Lisse’s
alleged non-response to the complaints.





Lisse
prepared his written response dated 29th March 2004
and sent that to Dr Vries by registered post on the 30th
March and gave a copy to Dr Vries on 1st April 2004.
Lisse did not comment in his written response on the issue of his
authority to practice because that issue had not been raised by Dr
Vries up to that time.





Dr
Lisse’s written response read as follows:





"Confidential


Dear
Sir,


Your
above letter refers.





I
note the form and dates of the attachments thereto and appreciate
giving me sufficient time to formulate my response thereto.





With
regards to Mr Maswahu’s letter I would like to state that besides
that I object to the unfounded allegations and implications therein
(and am reserving my options in this regards), I am not a member of
the Public Service.








With
regards to Mrs Kaiyamo’s letter I am not going to respond to
details, since these allegations are stated generally incorrectly,
distorted or are hearsay. I have however never been rude, not once
raised my voice and am not provocative in my language or behaviour.
I am of the opinion that I have the right to point out to the staff
if I notice that there is a problem. And, there are problems.
Problems with competence, work ethics/attitude, maintenance, and
hygiene. Nonwithstanding that I do not believe that it is within the
scope of practice of a Registered Nurse to prescribe to a Specialist
the choice of procedures he uses, the preferred procedure to treat
ectopic pregnancies is by Video-Laparoscopy, i.e. Laparoscopy is not
a daytime procedure only. It is quite incorrect that I have booked
cases of ectopic pregnancy for Laparotomy only and then in theatre
decided to perform a Laparoscopy, in fact I have booked every single
case of ectopic pregnancy that I have performed in the last 3 months
in Windhoek (in 3 of the 4 hospitals where this can be done) as
Laparoscopy/Query-Laparotomy, and even managed to do remove an
unruptured ectopic pregnancy by laparoscopic salpingostomy. I have
yet to perform a single laparoscopy in Windhoek Central Hospital’s
theatre where all equipment is available, prepared, functional and
where the staff working in my theatre is conversant with the
procedure and the equipment. This is the case during and after
hours, in the latter case however much more pronounced. In
particular the floating nurse usually does not know the Insufflator,
the light source and the video equipment. I don’t know some of the
machines either, which is why I did not want to modify settings.
And, as it turns out, my approach is justified, since the camera
apparently is broken since a month, causes unknown. In the same
context I would like to point out that I am quite worried about the
way the optics are being handled. Since the desinfectant solution
and the CO2 are at room temperature, roughly 20 degrees below the
patient’s body temperature, the optic often condenses obstructing
the view. It is common practice in theatre to boil water in a kettle
and to use that water to warm up the optic. Nevermind that I have
concerns about the effects this may have on the optics, I find this
practice unacceptable from a hygienic standpoint, and have repeatedly
requested to use sterile Normal Saline from the fluid warmers which
are in theatre. With regards to my list, it was your very clear
instruction not to take over Dr Baines’ list, but let you decide
which theatre list to allocate to me. You told me in no uncertain
terms that this was your prerogative as a matter of principle. After
my paperwork was completed I handed in the application to perform
procedures at your office and was informed that you were on leave and
to contact Dr Obholzer who was standing in. That Mrs Kaiyamo holds
this against me is beyond my comprehension. However I would like to
take this opportunity to point out that the current situation is
difficult for me. I am to follow after Dr van der Colf on Tuesday
and to finish before Drs Foertsch/Stellmacher. Not only is the list
I have too short (since most of my patients are members of PSEMAS
which are restricted to the Windhoek Central Hospital), the
uncertainty of whether Dr van der Colf is going to do cases in a
particular week can only be resolved one day before the actual list
making scheduling difficult to impossible. The Windhoek Central
Hospital is the only hospital I have ever worked in where it is
difficult to book theatre cases. All other hospitals in Windhoek go
out of their way to make available theatre time during and after
hours to perform elective surgery. Probably since it is revenue
generating. I am not asking to do hysterectomies on Saturday
mornings, but D&Cs, Hysteroscopies, Laparoscopic Sterilizations
and Dye Tests are cases which can be easily done outside working
hours if there are no emergencies. Lastly it has come to my
attention that there are bats in theatre.





With
regards to 3East, I have recently sent all my patients days to a week
in advance to the ward with a typed letter so that all arrangements
can be made in time. This apparently is not appreciated by the ward
staff either so I don’t understand what the problem is.





With
regards to Ms Langa, my recollection differs in several important
aspects from her allegations, however I do not understand how this
concerns your office.





Lastly,
my contemporary notes differ in several important aspects from Ms
Shaama’s allegations, and unless I am mistaken so do her own
nursing notes in the hospital records. It is not my understanding
that it is within the scope of practice of a Registered Nurse to
approve of or interfere with a Specialist’s management of premature
contractions in a patient with incompetent cervix. I was however up
to now unaware that another Specialist had interfered with the
management my patient.





All
in all, I think one should not confuse Cause and Effect, but I wish
to take this opportunity to assure you that I shall do my utmost to
avoid future misunderstandings. In this regards I have decided to
restrict my oral communication with nursing staff as much as possible
to the extent necessary to ensure patient care. You previously
indicated to me that a meeting was to be held in the near future with
all stakeholders with regards to list allocation and I would
appreciate to be invited to this meeting with reasonable advance
notice. I also would appreciate if you provided me with a complete
written set of rules that private medical practitioners are expected
to abide by at Windhoek Central Hospital. Can you perhaps provide me
with a fax number under which my secretary can book my patients for
the ward 3 East by fax?"





Dr
Vries may not have received the aforesaid written response per
registered post
by the time he wrote his "non-recommendation"
dated 1st April on the Section 17 application to
the Minister. But the aforesaid "non-recommendation"
itself shows that he did receive the response before he made his
non-recommendation because he says in his aforesaid
"non-recommendation": "He never responded until he
was stopped to use the facility
". It is common cause that
this purported stopping took place on the 31st March
2004
. The failure by Dr Vries to deal at all in his aforesaid
"non-recommendation" with any of the points made by Dr
Lisse in his defence, leads to the inference that Dr Vries probably
ignored the response because it did not comply with his deadline.
When he stated in his aforesaid "non-recommendation" that
Dr Lisse only responded after being given notice on the 31st
March that Lisse could no longer practice without the Minister’s
authorization, he misrepresented the facts, because he had received a
copy dated 29th March 2004on the same day i.e 1st
April 2004, on which he made his "non-recommendation".






10. (ii) The aforesaid
misrepresentation was a serious misrepresentation. It was aggravated
however when Dr Vries in paragraph 8 of his supporting affidavit to
the Minister’s answering affidavit in the application proceedings,
alleged:





"Despite
my reminder, the applicant did not respond."





In
paragraph 9 Dr Vries stated:





"I
stopped the applicant for both his failure and/or refusal to
respond
to the complaints against him -------. I considered
his non-response
to the complaints to be insubordination
on his part."





Not
only was it a lie that Dr Lisse had failed or refused to respond, but
the Vries conclusion that this amounted to insubordination is
far-fetched if not plain nonsense. In this regard it must be
remembered that Dr Lisse was a senior specialist medical practitioner
and not a public servant or employee and had in fact responded in
fair detail.





In
paragraph 11 Dr Vries qualified his allegation in the
preceding paragraphs 7, 8, 9 and 10 by now explaining:





"After
I had stopped him he did submit his response to the complaints
…"








Dr
Vries however still misrepresented the position by alleging and/or
insinuating that Dr Lisse only responded, after he was stopped
to practice.





It
is significant however that Dr Vries at least admits in his aforesaid
affidavit that the response by Dr Lisse was delivered to his
secretary the "day after he stopped Dr Lisse to practice, i.e on
1st April. But from then on Dr Vries knew that the
response was dated 29th March, and must have been
completed by the 29th and was thus prepared before the
notice to stop practicing dated the 31st March, and not
after such notice had been served.





10. (iii) In
paragraph 15
Dr Vries once again as one of the two reasons for
his disrecommendation states:





"For
the short period the applicant was at the hospital he gave the
hospital and administrative staff many headaches."





He
once again ignores Dr Lisse’s side as set out in the written
response of the 29th March and repeats his former
misrepesentation and makes it even worse by alleging:





"To
aggravate the situation he refused to respond to the
allegations against him when requested to do so."








Further
in the paragraph Dr Vries says: "To me he did not deserve the
privilege he was applying for."





Dr
Vries here demonstrates a misconception also apparent from the
attitude adopted and/or demonstrated by Dr Shangula and unfortunately
also the Minister: The misconception is that Dr Lisse did not ask
for favours and authority to practice was not a "privilege",
but a right to obtain such authority in terms of Section 17, unless
there were good reasons for not granting the authority.





10. (iv) In
paragraph 16
Dr Vries says:





"Despite
his belated
response, I felt he did not deserve a positive
recommendation. His response was not satisfactory to me…"





Dr
Vries fails to say why the response was "unsatisfactory"
and one is left to infer that that may be the failure to comply with
a deadline set unilaterally by him.





Dr
Vries was not authorized by any law, regulation or code to ignore Dr
Lisse’s reply. There was no justification for the failure to
consider the response of Dr Lisse in a reasonable and fair manner.
Dr Vries adds insult to injury where he continues: "and my
conclusion was that he had a serious behavioural problem and could
not work properly with the staff at the Windhoek Central Hospital
".





These
insulting and grave allegations were again based on the written
complaints of some members of the staff which were not on oath and
not tested in any manner and made without considering Dr Lisse’s
reply. But worse than that:





10. (v) Apparently
not even the conciliatory remarks of Mrs Kaiyamo and Dr Lisse’s
response were considered
. Mrs Kaiyamo, a principal registered
nurse concluded:





"Dr
Lisse should understand that theatre staff at Windhoek Central
Hospital Main Theatre are now hesitating to help him because
he is a difficult person. If he can change his attitude it
may lead to a healthy teamwork. We are still waiting for his
preferences and will accord it to him if available and depends on
what the hospital is providing
".








There
is therefore no ground for saying or suggesting that all or most of
the staff is unwilling to work with Dr Lisse. But without any proper
investigation and hearing of the complaints and the evidence against
it, the blame cannot be properly established and apportioned.





It
is also clear from the written reply of Dr Lisse, that
notwithstanding his denial of the truth and/or substance of most of
the complaints, Dr Lisse was willing to attempt to rectify the
position. He said in the last paragraph of his written response of
the 29th March:





"All
in all, I think one should not confuse Cause and Effect, but I wish
to take this opportunity to assure you that I shall do my utmost to
avoid future misunderstandings. In this regards I have decided to
restrict my oral communication with nursing staff as much as possible
to the extent necessary to ensure patient care. You previously
indicated to me that a meeting was to be held in the near future with
all stakeholders with regards to list allocation and I would
appreciate to be invited to this meeting with reasonable advance
notice. I also would appreciate if you provided me with a complete
written set of rules that private medical practitioners are expected
to abide by at Windhoek Central Hospital. Can you perhaps provide me
with a fax number under which my secretary can book my patients for
the ward 3 East by fax?"





The
prejudice to appellant and his patients of the refusal, emerges inter
alia
from the content of the affidavit of Dr Vries where he says
in paragraph 18.3 of his affidavit:





"As
a policy
, the State Hospital does not turn away emergency cases
whoever the patient belongs to. Applicants emergency cares will
always be attended to as long as they are indeed emergencies
except only that they will be attended to by other Doctors and not
the applicant
".





This
prejudicial policy, subverts in advance the discretion vested in the
Superintendent by subsection (6) of Section 17 of the Act, to grant
the necessary authority, even to Dr Lisse. The said subsection
provides:





"Notwithstanding
subsection (1), the Superintendent of a State Hospital may in the
case of a patient requiring emergency treatment, permit a private
practitioner to treat that patient in the State Hospital without the
Minister’s authorization."








Dr
Vries thus in effect wrongly purports to permanently ban Dr Lisse
from treating a patient and for the patient to be treated in an
emergency.





This
distorted picture was also supported by the under-secretary, as well
as the Permanent Secretary Dr Shangula and relied on by the Minister.





11. Comments
of Dr Shangula in his disrecommendation
:


"I
concur with the recommendations of the Senior Medical Superintendent.
These complaints have also reached my office.





Dr
Lisse can make use of private hospitals. He is not fit to
work in a public hospital
."








My
comment
:


Dr
Shangula does not specify when, where and by whom the complaints were
made and precisely what were complained of. Dr Shangula, as
Permanent Secretary, is obviously not resident at or working at the
hospital. It seems therefore that he relied on rumour and gossip.
The comment that Dr Lisse "can make use of private hospitals"
ignores the interests of patients of Dr Lisse, 50 percent of whom are
state patients, who will be prejudiced by being unable to afford the
tariffs of private hospitals. The medical care of State patients
must be paid – wholly or partially, by PSEMAS, the Public Servants
Medical Aid Service, which is financed not only from member’s
contributions but also from State coffers, which moneys in turn are
obtained from the taxpayers of Namibia.





Dr
Shangula’s attitude completely also discounts the right of a
patient within reasonable limits, to be treated by a medical
practitioner of her or his own choice, and the right of any medical
practitioner to exercise his/her profession, and to make use of State
facilities for that purpose as other medical practitioners are doing,
without discrimination, unless there are good reasons for not
allowing a particular medical practitioner from so practicing.





12. Dr
Shangula’s, supporting affidavit
:






"7. In early March, 2004
several fairly serious complaints were levelled at the Applicant by
some members of staff at the State facility. The complaints are
those referred to in the Applicant’s founding affidavit. The
complaints focused mainly on the Applicants conduct at the State
facility, which if true, was totally unacceptable.






8. The Applicant was given the
opportunity to respond to the complaints by the substantive Medical
Superintendent (Dr Vries) of the State facility but he failed and/or
refused to do so in the time he was given.







9. Meanwhile, the Applicant’s
application for authorization was still proceeding along the relevant
channels. On my part I disrecommended the Applicant’s
authorization because of the complaints against him, his refusal to
address them (which, to me, amounted to insubordination) and his
improper conduct in commencing to practice at the State facility
without the necessary authorization by the Respondent. The
Applicant’s belated response to the complaints against him was not
satisfactory to me and I still resolved that he was not fit to
practice at the State facility. I therefore recommended that he not
be granted the authority to practice at the State facility."





My
comment
:


(i) Ad
Paragraph 7
: Dr Shangula makes it clear in this affidavit that
the complaints referred to are those referred to in appellant's
founding affidavit. It is thus not complaints of which he became
aware independently as may be inferred from his reliance thereon in
his recommendation to the Minister dated 2.4.2004.





In
paragraph 7
he describes these complaints as "fairly
serious" but he nevertheless relied on these complaints, when he
made his aforesaid recommendation to the Minister and for his
allegation that Lisse is "not fit to work at a public hospital",
notwithstanding that these complaints were untested hearsay and that
Dr Lisse repudiated them.





In
paragraph 7 Dr Shangula also says – the "complainants if
true
, was totally unacceptable". That may be so.
But unfortunately Dr Shangula, as Permanent Secretary of the
Ministry, did not establish whether these complaints were true or
not
and neither he, the Minister or any other person in the
Ministry, took any steps to establish whether the complaints were
true or not. Whether he ever even saw the said response, is not
stated.





(ii) Ad
par. 8:


In
paragraph 8 of his affidavit he relies on plain hearsay, probably the
story of Dr Vries, that Dr Lisse "had failed and/or
refused to do so (i.e. respond) in the time he was given".





There
is no evidence whatever that Dr Lisse had "refused".
If "failed" in this context means that the "time
given" was provided by any law or regulation, and was thus
legally binding and effective, then the answer again is that there
was no such "failure".





But
the fact is that Dr Lisse did reply in a properly typed response
dated 29/3/2005. The fact that there is no reference at all to the
written response, not even that it was rejected, justifies the
inference that because it was late in terms of Dr Vries’s
unilateral deadline, it was out of time and not considered,
irrespective of the nature relevance and merits of the contents.





(iii) Ad
par. 9:


In
paragraph 9 Dr Shangula states that his "disrecommendation"
was not only based on the complaints by staff, but the facts that Dr
Lisse practised at the State Hospital without the Minister’s
authority.





It
is inconceivable that if this latter ground was a genuine ground at
the time of his disrecommendation, that he would have failed to
mention it in his disrecommendation to the Minister. I must infer
from the above that it was not a ground for the disrecommendation in
the mind of Dr Shangula but an afterthought to bolster the case for
the Minister once litigation was instituted.





(iv) Ad
paragraph 13 and 14
:






"13. I do not agree that the
Applicant’s problems at the State facility, in the short time he
was there, were due to the alleged poor facilities and staff
inefficiency at the State facility. Although the facilities and
working conditions at the State facility may not be as perfect as at
the private hospitals, they are still adequate to deliver the
appropriate health service and have been so adequate all along.
Other doctors, private ones included, have been using the State
facility for a long time and the hospital administration has not had
the problems it had with the Applicant in the three months he was
practicing there. I am convinced that the problem is with the
Applicant and not with the hospital’s facilities and staff.










14. Paragraph 22 of the
Applicant’s founding affidavit is not correct in that it distorts
the context of my said address in so far as:











14.1 this was an internal meeting
with my staff wherein my aim was to motivate the staff to perform
better;







14.2 the negative aspects I
referred to were what I perceived to be "common complaints"
or "criticisms" people levelled at State facilities in
general. I did not say that was what was happening in fact;







14.3 the negative aspects were
for all State medical facilities in the whole country in general.
They did not relate specifically to Windhoek Central Hospital.






Therefore,
what I said at the management meeting cannot bear out the Applicant
on the problems that he had in the short time he was at the State
facility. Why would the alleged problems result in complaints only
against the Applicant and not the other doctors?"





This
answer is made in response to paragraph 22 of Dr Lisse’s
founding affidavit in which Dr Lisse stated:






"22. However, it would be
appropriate to give some background to the matter. I had been
concerned for some time about the state of repair of the equipment in
the Windhoek Central Hospital and the attitude of some of the nursing
staff. As a medical practitioner I owe a duty to my patients to
ensure that these issues are addressed promptly as they materially
affect the quality of the medical attention my patients receive at
Windhoek Central Hospital. In fact similar concerns were raised by
the Permanent Secretary of respondent’s Ministry, Dr K Shangula, at
a managerial meeting of respondent on 10 February 2004. He stated:











'The following are common
complaints:







  • The
    hospitals and their environments are dirty.


  • The
    health workers are rude, arrogant, and lack compassion.


  • The
    health workers are incompetent.


  • There
    are no medicines in the health facilities, etc.'






A
copy of the Permanent Secretary’s address is annexed hereto as "EWL
6"
."





Dr.
Shangula further said in his aforesaid statement:





"Time
and again
, the Ministry’s medical and nursing staff is
criticised for a host of wrongdoings. Where do we go wrong? The
following are common complaints:



The
hospitals and their environment are dirty. The health workers are
rude, arrogant and lack compassion. The health workers are
incompetent. There are no medicines in the health facilities etc.



Though
some of the complaints are exaggerated, there is no smoke without a
fire. Some of the complaints result from misunderstanding, because
we do not take a minute to explain to our patients, clients or their
relatives.



Most
of the complaints have resulted in citizens taking legal action
against the Ministry of Health and Social Services. Between 2000 and
2003, there have been 91 litigations against the Ministry……Out of
the 91 cases, 51 cases were finalized of which the Ministry was made
to pay in respect of 31 cases. Ten (10) of these are medical cases,
where it was established that there have been negligence on the part
of the nursing staff. The highest amount paid for a closed case was
N$4, 488 641.16 and the lowest amount paid was N$1522.99".





It
is clear from the aforesaid address by Dr Shangula himself that it is
a notorious fact that many members of the public make these
complaints and that there is often substance in these complaints. As
he himself said in his address, there is no smoke without a
fire".





Dr
Shangula even gave examples of three case studies which read as
follows:





"Case
study No. 1
.





A
primigravida went in labour at midnight. She was brought to the
hospital. The Registered nurse on duty examined her and told her in
an unfriendly manner that she is not yet due to deliver and therefore
she must go back home. The pregnant woman being in labour pains,
refused to go home. She was eventually allowed to remain in one of
the rooms. When she suggested that the nurse calls the doctor, the
former became more unfriendly and refused to call the doctor. The
woman in labour, was eventually seen by the doctor the next morning
during the rounds, who correctly diagnosed cephalopelvic
disproportion and ordered immediate Caesarean Section. By then it
was already too late and the baby died less than twenty-four hours
after the operation. The question then arises: is this a matter of
incompetence or negligence or both? Why then did the nurse refuse to
call the doctor?








Case
Study No. 2.








One
day, in one of our big hospitals, one of our High Commissioners went
to visit his relative who was admitted in the department of internal
medicine. When he arrived at the nursing post, he found a nurse and
a woman with her child. He greeted the nurse very politely. The
nurse ignored him and started to engage in a conversation with the
woman. The conversation focused on trivial things unrelated to the
official work. The High commissioner repeated the greetings two more
times. The visitor then asked her where Room No. X was. She
responded in a rude manner and asked him whether he does not know how
to read. She then told him to enrol in adult literacy programme,
otherwise he deserve to be beaten up. Being a diplomat, the High
Commissioner just left her alone and proceeded to the room where his
relative was. He reported the incident to me personally.








Case
study No. 3.








An
elderly person was admitted in a hospital. This hospital is
relatively new, not more than ten years old. The ablution facilities
were not in working order. The attitude of the staff was generally
hostile. The care was found wanting. The question is: "Why
should staff get "worked up" by the mere presence of
patients?"





At
the time Dr Shangula even laid down certain rules and procedures in
an attempt to improve the position. In this regard he said:





"I
am sending out to you and through you to the entire staff of the
Ministry the following message:






1. Keep the wards, the premises
and the environment in and out of the hospitals clean.







2. You must instil in every one,
patients and visitors, cleaners and all other staff members a culture
of cleanliness. The cleaners must be made to feel proud of their
trade.







3. We must establish a programme
of support to our staff members. They need support and
encouragement. They need counselling in order to cope with the
ever-increasing work load and especially to cope with deaths of their
patients.







4. Senior Medical Superintendents
and Principal Medical Officers must institute compulsory ward rounds,
at least once per week, focussing on the completeness of
documentation, quality of care and cleanliness of the wards and
surrounding territories.







5. Hospital Nursing managers and
Chief Control Officers must do similar rounds. Nobody should be
confined to the Office and not knowing what is going on.







6. Each hospital must develop a
programme to deal with the negative attitude of some nurses. Each
hospital must submit to my Office the programme of supervision by the
SMS/PMO, the Hospital Nursing Manager and the Hospital Administrator
for the next financial year. These programmes must reach my Office
before the 1st April 2004". (My emphasis added)





In
the light hereof, Dr Shangula’s reply in paragraph 13 and 14 of his
supporting affidavit, is an attempt to water down the allegations
regularly made and to evade responsibility for a very serious and
notorious problem.





It
is pathetic that in such circumstances the allegations by Dr Lisse in
his written reply that there are indeed problems with "competence,
work ethics/attitude, maintenance and hygiene"
were totally ignored, instead of investigating it further and if
found that these complaints have substance, then to act upon it and
attempt to find solutions to the problems.





What
makes it worse is that Dr Shangula never considered that this sort of
action by Dr Lisse may have been the motive for unfounded and/or
exaggerated accusations by members of the staff.





(v) Ad
paragraph 15


In
this paragraph Dr Shangula says inter alia in regard to an
applicant and an application under Section 17 of the Act:





"It
is just like a person who applies for a job
. If he fails to
get it he cannot then ask for that decision to be reviewed
".








This
quotation amply demonstrates the mindset in which Dr Shangula
approached the applicant and the application. The plain truth is
that an application under Section 17 can never be equated with an
application for a job.





In
the case of a Section 17 application, an applicant, if suitably
qualified, has a right to make an application and to be granted the
necessary authority, unless there are reasonable grounds for refusal.
An applicant is entitled to the benefits of Art 18 of the Namibian
Constitution, which gives to persons in the position of applicant,
the right to administrative justice which includes the right to fair
and reasonable administrative action and procedures.





When
the Minister exercises his/her discretion under the aforesaid Section
17, the said Minister also has to take into consideration and apply
Art 10 of the Namibian Constitution which in Art 10(1) provides for
the fundamental right that:





"All
persons shall be equal before the law
".





This
fundamental right is relevant in so far as many other doctors have
been granted the authority to practice in whole or in part at the
hospital. Dr Lisse is the only known exception. Unless there are
sound reasons to refuse such authority in his case, such refusal may
also be in breach of the fundamental right of equality before the
law. The action by the Minister and the reason given for such action
are clearly also in breach of Dr Lisse’s fundamental right to
dignity provided for in Art 8 of he Namibian Constitution, unless of
course such affront to his dignity was legally justified. Suffice to
say, it can never be justified by allegations which are untrue.





The
decision-maker must also consider and apply Article 21(j) which
provides for the fundamental freedom to "practice any
profession
, or carry on any occupation trade or business".
The refusal by the Minister obviously does not completely prevent Dr
Lisse from practising his profession, but it severely restricts him
in the exercise of his profession and unless there are sound reasons
for so restricting him, a Minister refusing his application under
Section 17, violates the aforesaid Art 21(j) of the Namibian
Constitution.





It
is a total misconception of the Minister’s duties under the
aforesaid section, to claim that the Minister is merely deciding on
"privileges" and not "rights" as explained
above. It must be emphasized that the Minister is not dealing with
his/her own property or that of the government of the day and is not
dishing out "privileges" when deciding on a Section 17
application, but is dealing with State property in regard to which
the Minister is required by the Constitution to exercise certain
administrative functions, such as that provided for in Section 17 of
the Act in accordance with the provisions of the Namibian
Constitution and in the public interest.





13. The
Minister’s answering affidavit
.


It
is clear from the record of her decision and from the answering
affidavit, that the Minister accepted the allegations and views of
her advisers, Dr Vries and Dr Shangula uncritically and
unconditionally. Consequently she made the same mistakes.





My
comments on their views and actions as disclosed in their
"disrecommendation" and in their supporting affidavits, are
applicable mutatis mutandis to the statements by the Minister
in her answering affidavit.





To
attempt to avoid duplication and curtail the prolixity of this
judgment, I will deal as briefly as possible with some of the many
unsatisfactory features of the Minister’s answer.





(i) Ad
paragraph 13, 14 and 15 of the said answering affidavit
.



My comment:



Neither the Minister, nor Dr
Vries or any other official had informed Dr Lisse that the alleged
improper practising and the written complaints would be communicated
to the Minister and would be relied on by her in deciding Lisse’s
Section 17 application.






This was thus a clear case where
Dr Lisse should have been informed beforehand and given the
opportunity to respond. There consequently was no application of the
audi alterem partem rule.






The Minister’s argument that
she applied the rule by considering the response to the complaints
contained in Lisse’s letter of the 29th March, is
fatally flawed, inter alia because: The said letter only
dealt with complaints by some members of the staff relating to his
behaviour, not with the issue of his alleged improper practicing and
he was never informed that the said alleged improper practicing and
the said complaints by staff would play any rôle
in the Minister’s consideration.






(ii) The Minister admits the
"authority" provided by Dr Obholzer, and the implied
condonation by Dr Vries for approximately one month after his return.
She however falls back repeatedly on the point that such
authorization was improper because the law provides that the Minister
is the only person that could approve.






She
failed to consider that even apart from Dr Vries’s aforesaid
implied condonation, he even expressly purported to give limited
authorization
in his letter dated 31/3/04 wherein he said:







"Please be informed that
you are not permitted to use the Windhoek Central Hospital facility
with immediate effect. You may continue to see your already
admitted patients until discharge
".









Furthermore
the Minister failed to keep in mind that subsection (6) of Section 17
provides for limited authorization by the Superintendent in the case
of emergencies.





The
subsection reads:





"Notwithstanding
subsection (7) the Superintendent of a State Hospital may in the case
of a patient requiring emergency treatment, permit a private
practitioner to treat that patient in the State Hospital without the
Minister’s authorization".





Mainga
J in his judgment said that the Minister was bound by the acts
performed by Dr Obholzer and Dr Vries and relied for this proposition
on the case of Tettey and Another v Minister of Home Affairs and
Another
where the Court held inter alia:





"I
do not think that the argument that Thomas did not have the authority
would avail the respondents. Thomas was acting in the course and
within the scope of his duties and therefore had the ostensible
authority to act. Accordingly the first respondent would be bound by
acts performed by Thomas in the course and scope of his duties…."1





(iii) Several
of the Minister’s contentions in the above paragraphs are
ambiguous, inconsistent and on occasion patently superficial and one
sided.





She
says in paragraph 13:





"For
his own reasons, Dr Obholzer allowed the applicant to start
practicing at the State facility, but such permission was improper in
so far as it was without lawful authorization in terms of the Act".








Paragraph
15:





"Even
according to the applicant, Dr Obholzer told him expressly that he
was only recommending his application
and not authorizing him in
terms of Section 17".











Surely,
the statement that Dr Obholzer "told him expressly that
he was only recommending his application" is a gross
understatement compared to what Dr Lisse had said in his founding
affidavit and his replying affidavit and what Dr Obholzer himself
said in his supporting affidavit to the Minister’s answering
affidavit.





In
his founding affidavit Dr Lisse explained:






"12. In terms of section 17
of the Act, a private medical practitioner, such as myself, is
required to apply to the respondent for permission to engage in the
treatment of patients and perform a medical procedure at State
hospitals.







13. For this reason, I filled out
an application form in January 2004 for such authorisation but my
application was delayed because I had to first obtain a practice
number – annexure "EWL 3" – from the Namibian
Association of Medical Aid Funds. In order to do so I was required
to produce annexure "EWL 2" which I had applied for
in November 2003 and such document was only furnished to me by the
respondent in January 2004. The practice number was accordingly only
forwarded to me in late January 2004.







14. On 27 or 28 January 2004 I
personally took the application and all the required supporting
documentation to the office of the superintendent of the Windhoek
Central Hospital and handed it to his secretary. The superintendent,
Dr Vries, was on leave at the time.







15. A few days later I was
informed by the acting superintendent at the time, Dr Obholzer, that
he had recommended that my application be approved and had forwarded
the application to "head office". Dr Obholzer led
me to believe that the approval of my application by the respondent
would be a mere formality and I would be advised accordingly. I
assume that this was because I had been employed by the respondent’s
Ministry from 1990 and they were well acquainted with me. I enquired
from Dr Obholzer as to what I should do in the interim and he
expressly authorised me to use the facilities of the Windhoek Central
Hospital and to engage in medical procedures and the treatment of
patients with immediate effect. I accordingly commenced doing so.







16. A week later when I was in
theatre at the Windhoek Central Hospital one of the sisters enquired
from me as to whether I had the necessary certificate in terms of
section 17 to use the facilities. I immediately contacted Dr
Obholzer and he said that he would "take the matter up".
Dr Obholzer phoned me back later to advise me that I could continue
to practice and use such facilities. I accordingly continued to use
such facilities for my patients.







17. At all times I assumed that
Dr Obholzer, as a senior management member of the respondent’s
Ministry had the authority to authorise me to do so. I can only
further assume that he discussed the mater with higher authority,
such as with the Permanent Secretary or the respondent and that what
I was doing was fully authorised by the respondent. It is my
experience after having worked in the respondent’s Ministry for
many years that decisions are taken by the respondent but sometimes
only communicated in writing some months hence due to bureaucratic
delays.







18. The superintendent, Dr Vries,
returned to work in the first week of March 2004. Dr Vries saw that
I was using the facilities and treating my patients at Windhoek
Central Hospital, but he did not indicate to me that my conduct was
unauthorised by respondent nor did anyone from management at the
respondent so advise me.







19. I continued to practice and
perform procedures at the Windhoek Central Hospital throughout March
2004 without anyone informing me that I was not entitled to do so.







20. On 17 March 2004 I received a
letter from Dr Vries advising me that certain complaints had been
lodged against me and enclosing copies of written complaints by
various staff at the Windhoek Central Hospital. I annex a copy of
this letter and the attachments as "EWL 4".





Dr
Obholzer, in his aforesaid supporting affidavit, does not deny
specifically any allegation by Dr Lisse. He explained in paragraph 5
the reasons why he allowed Dr Lisse to begin practicing pending
the decision by the Minister. This paragraph reads as follows:






"5. I had known the
Applicant for some time whilst he worked for the Government and also
knew that he had recently completed his Obstetrics and Gynaecology
specialization in Germany and then worked at Oshakati for about a
year.






The
Applicant wished to start using the Windhoek Central Hospital
facilities pending the decision on his application by the Respondent.
In good faith, I allowed him to start using the hospital’s
facilities for the following practical considerations:






5.1 the Applicant was a senior
doctor who had worked for the Respondent’s Ministry for many years;







5.2 the Applicant had many Public
Service Medical Aid patients who would benefit from his practicing at
a State hospital;







5.3 I believe that authority for
him to practice at the State facility ordinarily would not be a
problem as long as he abided by the hospital’s code of conduct. I
was aware of the Applicant’s abrasive personality and made his
point to him diplomatically."





It
must be noted that Dr Obholzer in paragraph 5.3 indicates that he
believed
"that authority for him to practiceordinarily
would not be a problem
…" In paragraph 7 he says inter
alia
, "I just allowed him to start practicing in
anticipation that his application would be successful
".





In
paragraph 9 and 10 of Dr Obholzer’s supporting affidavit he
manifests his own belief that the complaints by staff and not
practicing without authority was the reason for the Minister’s
refusal. The complaints by staff that Obholzer refers to must be
taken to be the written complaints by staff directed to Dr Vries
because in the same sentence in his paragraph 10 he says:





"…which
complaints he failed to address when asked to do so by the hospital’s
administration (Dr Vries)
. This, I believe, cost him the
authorization he was seeking
".








The
remark by Dr Obholzer "which complaints he failed to address
when asked to do so by the hospital’s administration
(Dr
Vries)", is of course hearsay which he must have been told about
by Dr Vries and/or Dr Shangula and which, as I have shown, was a
distortion of the truth.





(iv) All
indications are that the alleged unlawful practicing was an
afterthought which did not play a rôle
in the decision-making process.





If
it was, then one would have expected that not only would Dr Lisse
have been informed of such a factor by the Minister and/or Dr
Shangula or even Dr Vries on behalf of the Minister, but Dr Lisse
would have been informed thereof and given the opportunity to
respond.





Even
worse, Dr Obholzer, as the acting Superintendent who gave the express
permission to practice and who recommended the initial application,
should have been asked for an explanation. It is also obvious that
he should have been asked before the decision was taken by the
Minister and his explanation and reasons for his actions and the
positive factors which he considered in favour of Dr Lisse, should
have been given some weight.





(v) The
mysterious disappearance of the initial application, adds to the
unsatisfactory handling of this matter by the officials concerned.





(vi) It
is correct that section 17 requires that a medical practitioner
wishing to conduct his practice or part of his practice in the State
Hospital, must obtain authority for doing so from the Minister, but
the section itself provides for exceptions. Furthermore there were
several mitigating factors in this case, inter alia:






(a) Dr Lisse was a senior
practitioner, who had served the State for several years as a State
doctor, before he had qualified as a specialist and started his
private practice.






(b) Applications were in fact
submitted by Dr Lisse for the necessary authority through the office
of the Superintendent. The first one on the 27th or 28th
January 2004 to the Secretary of the Superintendent. At the time Dr
Obholzer acted as Superintendent in the place of Dr Vries who was on
leave.







(c) Dr Obholzer recommended the
application but this application went missing in the offices of the
Ministry. Dr Obholzer told Dr Lisse that he could start practicing
pending the outcome of the application.







(d) Later after the return of Dr
Vries, a new application was submitted.







(e) Dr Vries allowed Dr Lisse to
continue to practice, without objecting, until 31st March
2004.







(f) In the circumstances Dr Lisse
practiced until 31st March 2004 under the impression that
there was no objection by either Dr Obholzer or Vries for him
practicing and that the necessary authority had been obtained to
practice until final written authorization by the Minister. Even if
the assumption by Lisse was wrong in the absence of a written
authorization, there was no proof of any mala fides on the
side of Dr Lisse in this regard.







It was not only Dr Lisse that
suffered prejudice as a result of the refusal, but also his patients,
a large percentage of whom were State patients who could not afford
private hospitals.






(vii) The
Minister
:


"The
failure and/or refusal to respond to the complaints when asked to do
so was a symptom of a more serious problem of insubordination on his
part
".






My comment:


As
I have shown, this is a serious misrepresentation of the facts. Dr
Lisse did in fact respond within a reasonable time, even though he
did not manage to do so within the time limit set arbitrarily by Dr
Vries.





In
view thereof that the first part of the allegation is a
misrepresentation, the conclusion of "insubordination" is
baseless. It also appears that the Minister and her officials
ignored the fact that Dr Lisse was a qualified medical specialist who
conducted a private practice and was not a public servant.





The
accusation of insubordination is also for that reason inappropriate.
The Minister also failed to distinguish between Dr Vries and herself
in that the Minister never asked Dr Lisse for his response but Dr
Vries did so. Neither Dr Vries nor the Minister gave any indication
that these complaints will be sent to the Minister and used against
him in his section 17 application.





(viii) The
Minister
:


"I
did consider the applicant’s response to the complaints against him
but had to weigh it against the applicant’s utter disregard of
the State facility code of conduct and rules
. There was no way I
could give such a medical practitioner authorization and I believe I
acted correctly in not doing so because the facts before me
warranted such decision
".








My
comment
:


This
statement is non-sensical. On the one hand the Minister said that
she "did consider applicants response" but then says that
"she had to weigh that against the applicants’ utter
disregard
of the Code and Rules. But the problem is that the
alleged utter disregard of the Code and Rules is a conclusion
also based on the very complaints of members of staff. Before coming
to a conclusion she had to consider the complaints and the
applicant’s explanation and could not regard the contents of the
complaints as facts and then weigh the applicants explanation against
those "facts".





At
no stage did the Minister, or Dr Vries, or Dr Shangula pinpoint any
transgression of any Code of Conduct or rules of the hospital. Dr
Lisse said in his written response to Dr Vries; "I also would
appreciate if you provided me with a complete written set of rules
that private legal practitioners are expected to abide by at the
Windhoek Central Hospital". Neither Dr Vries, Minister or any
other official responded to this request. It is significant that the
Minister at no stage indicated to Dr Lisse or the Court which
provisions in the "Code" or Rules were contravened and no
Code of Conduct or set of Rules were produced to the Court in the
course of this litigation.





The
inference on the probabilities is that at least no written code or
set of Rules exist.





The
Minister’s statement that she took her decision because "the
facts before me warranted such decision
" shows a complete
misconception of how facts must be established and what the
difference is between "allegations" and "facts".
Even though she did not inform Dr Lisse of the "facts"
against him and gave him no opportunity to rebut the allegations by
staff members, she arrived at a final conclusion that notwithstanding
the applicant’s written response to Dr Vries, Dr Lisse’s conduct
amounted to an utter disregard of the Code of Conduct and
Rules, justifying the refusal of his section 17 application.





She
came to this conclusion in a hurry, i.e the day after the last of the
three officials had written their "non-recommendation" on
the application.





She
decided on the "facts" without any express finding that
everything or anything said by members of the staff were the truth
and that everything said by Dr Lisse was an untruth.





(ix) The
Minister returns to this theme in paragraph 38 in this regard. He
says:





"Although
the applicant did address the complaints levelled at him, I still
felt that he did so too late (in this way showing
insubordination to the head of the State facility Dr Vries) and
whatever he said against the complaints was not satisfactory to me
."














My
comment
:


The
Minister in this statement refuses or fails to pinpoint even one item
or aspect which was unsatisfactory and does not give any reason
whatever for saying "whatever he said against the
complaints was not satisfactory to me".





It
is possible that the Minister acted in this way because in her view,
the response did not conform to the deadline, and could therefore be
ignored or rejected. The alternative possibility is that the
Minister did not care what the applicant explained and was determined
to ignore or reject whatever the applicant said.





(x) The
Minister
:



"In my view he deserves my
refusal because of his overall behaviour".





My
comment
:


Here
the Minister once again relies on the mere fact of complaints having
been made, without doing anything to establish the truth or
correctness thereof and demonstrating once again her extreme
partiality to what her advisers and members of the hospital staff had
to say. She did this and decided against Dr Lisse without even
having any affidavits from them and relying on the mere say so in
unsworn and untested statements.





(xi) Ad
paragraph 20 of the Ministers affidavit


In
this paragraph and the last paragraph of her paragraph 19, the
Minister deals with the alleged conditions in the hospital raised by
Dr Lisse in his written response regarding problems of staff
competence, work ethics/attitude, maintenance and hygiene and in
regard to which Dr Lisse in his founding affidavit in paragraph 22
and 23 had referred also to the authoritative statements by Dr
Shangula himself on 10 February 2004 and the Medical Association of
Namibia.


(See
in this regard the quotations in Section II, 12(iv) relating to this
subject and my comment thereon which is repeated for the purposes
hereof).





The
Minister follows the approach of Dr Shangula in attempting to water
down the complaint not only of Dr Lisse, but the complaints of many
others, as confirmed in Dr Shangula’s aforesaid address, which was
delivered during the very period that Dr Lisse used the facilities at
the Windhoek Central State Hospital.





In
paragraph 20 the Minister also rejects the minutes of the Medical
Association of Namibia as "irrelevant" for the same
reasons. The said Medical Association have inter alia medical
practitioners as members. These members have apparently raised some
complaints through their association.





The
Minister says all this is irrelevant to the complaints by staff
against Dr Lisse and again misdirects herself in this regard. If she
did not decide in advance that the statements by members of staff in
their unsworn form were the whole truth and nothing but the truth,
and instead applied a more balanced and reasonable approach, she
would have realized that the complaints by Dr Lisse against
conditions at the hospital, which included work ethics/attitude,
maintenance and hygiene and even bats in the theatre, could have
irked members of the staff and led to the campaign against Dr Lisse
and to untrue and/or, exaggerated accusations against him.





The
Minister does not indicate in the course of this litigation that
anything has been done about the complaints which are common in
respect of State Hospitals and confirmed as such by Dr Shangula in
his aforesaid address.





In
these circumstances the Minister’s explanation of the admissions in
Dr Shangula’s address and her effort to evade the issue as he did
once litigation was instituted, are nothing less than pathetic where
she says in paragraph 19 of her affidavit:





"It
is clear from the speech that the complaints Dr Shangula
referred to were not proven facts but what he called ‘common
complaints
’ against the Ministry. It does not follow from Dr
Shangula’s speech that the ‘common complaints’ are in fact
true
and cannot justify Applicant’s behaviour for the two
months (a very short period) he practiced at the State facility".








So
according to the Minister, the complaints about the conditions at the
hospitals are not "proven facts" but the
complaints against Dr Lisse are assumed by her to be "proven
facts
" in its totality, without ever applying the same test
to it of whether or not they are "proven facts". The
Minister further misses the point that even if the aforesaid common
complaints were not in fact proven as true, those complaints were
also never proved to be untrue.





(xii) Ad
paragraph 24





In
this paragraph the Minister replies to paragraph 27 of Dr Lisse’s
founding affidavit where he stated that he enquired about his first
application which went missing in the Ministry’s offices and was
told inter alia that an application under section 17 normally
….took approximately three (3) days to process.





The
Minister comments in paragraph 24:





"They
take anything between the short period applicant refers to and longer
(several months) at times. The period depends on the
availability of the persons entrusted with contributing to the
decision on the application…"





The
long period of months used at times in the Ministry could not be
justified and reflects badly on the Minister and the Ministry in the
light of the need to process section 17 applications expeditiously in
the light of the importance thereof to a medical practitioner and his
patients, who as members of the public, are entitled to the benefit
of using the facilities of State Hospitals, unless there are
reasonable grounds for refusing them the use of such facilities.








That
an application can take several months because of the availability of
the persons entrusted with contributing to the decision on the
application
shows that the Minister who was authorized and
compelled by law to decide, placed undue reliance on persons not
entrusted by law to contribute to the decision. The Minister
does not explain who those persons are who may not be available for
months and why they may not be available for months and by such
conduct hold up her decision for months.





This
again is a sad reflection on the administration of the Minister and
her Ministry.





(xiii) Ad
paragraph 37





The
Minister here refers to the applicant’s allegation of the prejudice
to himself and his patients, about 50 percent of whom are State
patients. The Minister replies:





"The
person who is losing out (financially) on the non-authorization is
the applicant and not so much his patients."





In
regard to the prejudice to patients the Minister says:





"The
patients have other choices and options. It is up to them to stay
with the applicant who has no authority. The patients are not
obliged to. Applicants…. was brought about by himself and he has
no one to blame but himself…"








My
comment
:


The
Minister here again follows the line of her apparent advisers such as
Dr Vries and Dr Shangula. I have dealt supra with the
apparent unqualified acceptance by the Minister and her officials of
the guilt of Dr Lisse and need not repeat any of my previous comments
in this regard.





The
attitude of the Minister, as in the case of her aforesaid officials,
shows no respect, for the fundamental freedom of a person to
"practice any profession or carry on any occupation, trade or
business".





Although
this freedom was not prevented in the case of Dr Lisse, it was unduly
interfered with and hampered by the Minister and the Ministry by
refusing a Section 17 application without good reason and thus
causing him prejudice without good reason. After all, the
Minister as well as the officials of the Ministry are
public
servants.





Furthermore,
the Minister and the said officials, apparently do not accept that a
person in Namibia, requiring medical care, has the right to choose a
medical practitioner of his/her choice, in whom they have confidence
for their own reasons, unless there are reasonable grounds for not
allowing this choice.











(xiv) Ad
paragraph 40.5





In
this paragraph the Minister refers inter alia to the
applicant’s allegation of prejudice to him and his clients in the
case of emergencies. The Minister states:





"If
any of his patients become an emergency case, such patient can always
be attended to at the State facility, but not by the
applicant as
he is not authorized to practice there".








This
ban is in total conflict with subsection (6) of section 17 of the Act
which I have referred to above and which provides that "the
Superintendent of a State Hospital may, in the case of a patient
requiring emergency treatment, permit a private
practitioner
to treat that patient in the State Hospital without
the Minister’s authorization".





One
wonders whether it is possible that neither the Minister, nor any of
her officials are even aware of this provision of the law which they
have to administer? The Legislature that enacted this provision was
obviously aware of the need for such an exception as provided in this
subsection because it is not only in the interest of the private
practitioner but also that of his/her patient as well as in the
public interest. Apparently the Minister and her above-stated
advisers are not aware of this need. That is why they insist that
such emergencies have to be cared by medical practitioners, other
than Dr Lisse
.





(xv) Ad
paragraph 41.4





In
this paragraph there are various serious distortions of facts. For
the sake of convenience and comment I will split up the whole
paragraph and then comment separately on each allegation.





(a) The
Minister
:



"After a short period at the
State facility, the whole facility (from nurses up to his
colleague doctors) were up in arms against the Applicant".





My
comment
:


The
allegation that the "whole facility" was up in arms against
Dr Lisse is a gross overstatement.





As
far as his "colleague doctors" are concerned, it is not
stated which doctors are referred to and what their complaints were,
if any. Even Dr Vries, did not himself complain, but the members of
staff who complained, submitted their complaints to him.





When
Dr Vries made his disrecommendation to the Minister in the section 17
application he said that Dr Lisse "is a very bad mannered
person" but even then did not refer to any incident experienced
by himself, but only to the complaints by some members of staff and
the fact that Dr Lisse did not respond to these complaints within the
deadline.





Dr
Shangula also relied on the aforesaid complaints which "have
also reached his office" and not on any incident which he
himself experienced. Dr Shangula however was not a colleague at the
hospital.





Dr
Obholzer did in his supporting affidavit of the case for the Minister
remark that:





"I
was aware of his abrasive personality and made this point to him
diplomatically".





Dr
Obholzer did not mention any incident and it not known what precisely
he meant by the term "abrasive personality". Be
that as it may, the said remark should not be taken out of context,
because Dr Obholzer recommended that Dr Lisse’s section 17
application be granted. He saw it as a routine matter and foresaw no
problems. Consequently he specifically gave Dr Lisse permission to
practice, pending the authorization by the Minister, which was
expected in due course.





Dr
Obholzer put it as follows in his aforesaid supporting affidavit:






"I just allowed him to start
practicing in anticipation that his application would be successful".
(It was this application that had disappeared mysteriously, without
explanation, from the office of the Secretary of Dr Vries).





Apart
from Dr Vries and Dr Obholzer, there are a large number of other
State medical practitioners as well as private practitioners
practicing at the hospital as documented by the Minister in her
answering affidavit. None of them are alleged to have complained
against Dr Lisse and none of them have been shown to be "up
in arms against Dr Lisse". As to members of the nursing
personnel who complained there is no proof that whole body of
nurses and other personnel were "up in arms against him."





(b) The
Minister
:


"He
himself confirms,
that he had a difficult working relationship
with virtually everyone at the State facility".








My
comment
:


I
have carefully read through the written response of Dr Lisse as well
as his founding affidavit and replying affidavit. I find no such
confirmation.





(c) The
Minister
:





"Granting
him the relief claimed will adversely affect the morale and
administration at the hospital
. I refer to the attached
affidavits of the State facility’s doctors on the point".





My
comment
:


It
is only Dr Vries who took up this attitude.





The
morale should not be adversely affected by such granting, if
attention is given to the common complaints about State
hospitals which have become notorious and which do not originate or
are not restricted to Dr Lisse. If serious attempts are made to
rectify these complaints and to improve the standards and the
discipline, instead of using Dr Lisse as scapegoat, much more
would be achieved.





It
must be kept in mind that Mainga J in his judgment in the Court a
quo
added to the notorious facts of such complaints in addition
to those mentioned by Dr Shangula in his aforesaid address in January
2004 and the Medical Associations minutes already in 2003. Mainga J
had this to say:






"The applicant does not deny
that he complained about the dirtiness of the hospitals and their
environments, the rudeness arrogance and lack of compassion and
incompetence of health workers and the lack of medicines in the
health facilities and the state of repair of the equipment at the
Windhoek State Hospital. These concerns were also addressed by the
Permanent Secretary and the Medical Association of Namibia and he
attaches 'EWL6 and EWL7' as proof thereof. In actual fact the
complaints above are confirmed by an Article in the Namibian of
Tuesday November 9, 2004, an article headed, ‘Health Services not
up to standard' on p7. A few extracts from the article are
interesting to read and on point:







'Windhoek – Standards in
Namibia's health services are a point of concern for many and have
been highlighted during recent campaigning by political parties.






It is often claimed that doctors
are rarely available, clinics are poorly equipped and painkillers
such as Panado are dished out as treatment for any condition.






"The medicine that is
popular these days is Panado. That is proof that the medicine is not
close to being enough," says Helena Haukongo, a casual worker at
NDC. Haukongo says she has visited the Robert Mugabe clinic in
Windhoek three times recently and each time she had arrived in the
early morning and only left at 16h00 in the afternoon.






"I came at 08h00 in the
morning to see the doctor and it’s now 14h00 in the afternoon and I
am still waiting", says Haukongo.






Haukongo also complains that
nurses and security guards at health facilities often treat patients
badly.






"If I don’t know my way
around then who am I supposed to get information from?"
Haukongo asks. "But instead of answering nicely, they insult
you and sometimes look at you and say nothing. They are supposed to
answer in a polite way, not in a harsh way," she adds.






Katrina Rooinasie a Grade 10
student at Eldorado High School in Khomasdal says: "Yesterday I
was sent back home from the Katutura clinic. They said the people
were too many and we should come back on Wednesday," she adds.






Rooinasie, who lives in
Okuryangava, says she only came to Katutura clinic because she was
told her normal clinic in Donkerhoek was already full.






"Nurses should also be
faster when rendering services so that everyone can be accommodated.
I have a strong feeling that even doctors and nurses cause
people’s death, because people wait and wait and at the end of the
day
are sent back home without being treated," she says.






Stage manager at the National
Theatre of Namibia, Erasmus Hamunjela, says he went to the Robert
Mugabe clinic because it was close to his work. After sustaining an
injury, he asked his boss if he could go to the clinic but when he
got there he was sent home, because all the tickets for patients had
already been handed out for that day.






"Nurses and doctors are too
used to their work and they just don’t care anymore. They don’t
even work that fast anymore, they are terribly slow," he said.






Attempts to obtain comment from
the Namibia Nursing Association on claims that some nurses are
unprofessional in their approach to patients proved futile, despite a
series of attempts to contact the organisation over a period of three
weeks.’"








It
is also a notorious fact that similar complaints have continued to be
made and have continued to be discussed in the recent past in the
Namibian media.





(d) The
Minister
:


"I
cannot even guarantee that the applicant would get the cooperation of
the State facility’s staff if he went back there as it appears no
one want to work with him".





My
comment
:


As
I have pointed out in respect to Dr Shangula’s standpoint, the
position is not that grave and the allegations by the complainants
have not been tested and weighed against the written explanation of
Dr Lisse. And as Dr Shangula has admitted in one part of his
affidavit before acting in contradiction thereof in another part,
"the allegations have not been proved".





In
one case the author of a complaint has written two letters of
complaint. Both were dated 3.3.04. In the first letter she
indicates on the heading that she is the Principle Registered Nurse
at the Windhoek Central Hospital Main Theatre.





In
this letter she states inter alia:





"However
Dr Lisse seems to be a difficult person to work with. He is
always complaining that the staff is not competent enough
….The
way he is talking to the staff is provocative, he let the staff feel
that they are not important workers…"








These
remarks indicate that the complaints against Dr Lisse is at least to
some extent, tied to his complaints against staff.





In
the second letter with the same date, she purports to write on behalf
of four others namely: Itewa, Neumbo, Sebetwane, Shaema and Cloete.
Towards the end of this letter she strikes a conciliatory note which
indicates that the relationship with Dr Lisse is not as grave as
sketched by the Minister.





She
says:





"Dr
Lisse should understand that Theatre Staff at Windhoek Central
Hospital Main Theatre are now hesitating to help him because he is a
difficult person. If he can change his attitude it may lead to
healthy teamwork
. We are still waiting for his preferences
and will accord it to him if available and depends on what the
hospital is providing
".








Dr
Lisse in his written reply denied and/or explained the allegations
against him but said in conclusion:





"All
in all, I think one should not confuse Cause and Effect, but I
wish to take this opportunity to assure you that I shall do my utmost
to avoid future misunderstandings
… In this regards I have
decided to restrict oral communication with nursing staff as much as
possible to the extent necessary to ensure patient care. You
previously indicated to me that a meeting was to be held in the near
future with all stakeholders with regards to list allocation and I
would appreciate to be invited to this meeting with reasonable
advance notice. I also would appreciate if you provided me with a
complete written set of rules that private medical practitioners are
expected to abide by at Windhoek Central Hospital. Can you perhaps
provide me with a fax number under which my secretary can book my
patients for the ward 3 East by fax?"








The
way was thus open to find a satisfactory solution of the problems
between some members of staff and Dr Lisse, but Dr Vries chose the
hamfisted approach, unfortunately followed by Dr Shangula and the
Minister. In the course of this approach, the sensible proposal by
another staff member, the Chief Matron Maswahu that "it would be
more appropriate if an investigation was carried out", was
ignored.





III THE
LAW APPLICABLE








1. Any
argument that any exercise of administrative discretion is not
reviewable, even if based on the provision of a statute, is without
legal substance.







1.1 Whatever may have been the
position prior to the coming into force of the Namibian Constitution
on 21 March 1989 in conflict with art 18, has been swept away by
Article 18 of the Namibian Constitution which deals with
"Administrative Justice". This article reads as follows:






"18. Administrative bodies
and administrative officials shall act fairly and reasonably and
comply with the requirements imposed upon such bodies and officials
by common law and any relevant legislation, and persons aggrieved by
the exercise of such acts and decisions shall have the right to seek
redress before a competent Court or Tribunal."





2. There
are some other fundamental changes brought about by the enactment of
Article 18 which need be emphasized.









    1. So eg. prior to the
      implementation, administrative decisions could only be brought on
      review in terms of the specific provision of the statute providing
      for such review or on the grounds provided for in our common law.
      These grounds are:








  1. Lack
    of jurisdiction;


  2. Failure
    to follow any procedure required by the empowering statute;


  3. Failure
    by the decision-maker to apply his or her mind;












  1. When
    the decision-maker’s action was mala fide, arbitrary or
    grossly unreasonable;


  2. When
    the decision-maker failed to apply the audi alterem partem
    rule, when in certain situations reason and/or practice dictates
    that the Rule should apply.







The
following two situations are clear examples of the last ground:







  1. Where
    the decision-maker is privy to certain relevant information of which
    the applicant is ignorant and the said information is used against
    the applicant, the applicant must be informed by or on behalf of the
    decision-maker of such information2.







  1. When
    circumstances are such that the applicant would have a reasonable
    expectation or legitimate expectation of succeeding in the
    application, the audi alterem partem rule must be applied.







I
agree with the manner in which Mainga J set out the law relating in
regard to this principle, part of which I repeat:






"In
Administrator, Transvaal and Others v Traub and Others
1989 (4)
SA 731 (A) at 756E-757C Corbett CJ said the following concerning
legitimate expectation:





‘…The
concept of a legitimate expectation, as giving a basis for
challenging the validity of the decision of a public body on the
ground of its failure to observe the rules of natural justice was
given the stamp of approval by the House of the Lords in O’Reilly v
Mackman and Others and others cases [1982] 3 All ER 1124 (HL) at
1126j-1127’





It
is clear from these cases that in this context ‘legitimate
expectations’ are capable of including expectations which go beyond
enforceable legal rights. Provided they have some reasonable basis
(Attorney General of Hong Kong case supra at 350c). The nature of
such a legitimate expectation and the circumstances under which it
may arise were discussed at length in the Council of Civil Service
Unions case supra. The following extracts from the speeches of Lord
Fraser and Lord Roskill are of particular relevance:





But
even where a person claiming some benefit or privilege has no legal
right to it, as a matter of private law, he may have a legitimate
expectation of receiving the benefit or privilege, and, if so, the
Courts will protect his expectation by judicial review as a matter of
public law. – Legitimate or reasonable expectation may arise either
from an express promise given on behalf of a public authority or from
the existence of a regular practice which the claimant can reasonably
expect to continue…’ Per Lord Fraser at 943J-944a.





"The
particular manifestation of the duty to act fairly which is presently
involved is that part of the recent evolution of our administrative
law which may enable an aggrieved party to evoke judicial review if
he can show that he had ‘a reasonable expectation’ of some
occurrence or action preceding the decision complained of and that
that ‘reasonable expectation’ was not in the event fulfilled."


Per
Lord Roskill at 954e.





After
indicating that the phrases ‘reasonable expectation’ and
‘legitimate expectation’ were to be equated and having expressed
a preference for the latter. Lord Roskill continued (at 954g):





The
principle may now be said to be firmly entrenched in this branch of
the law. As the cases show, the practice is closely connected with
‘a right to be heard’. Such an expectation may take many forms.
One may be an expectation of prior consultation. Another may be an
expectation of being allowed time to make representations…"’





See
also Tettey and Another v Minister of Home Affairs and Another 1999
(3) SA 715 D & CLD at 726 C-D."





3. Article
18
does not restrict the duty of Administrative bodies or
administrative officials to act fairly and reasonably only in regard
to procedure.





It
must be inferred that this requirement also applies to the substance
of the decision. This inference is strengthened by the last part of
the article, which provides that persons aggrieved by the exercise
of such acts and decisions
, shall have the right to seek redress
before a competent Court or Tribunal".3





In
South Africa, the Constitutional Court has expressed itself on item
23(2)(b) of Schedule 6 of the South African Constitution, which deals
with administrative justice in South Africa.





The
said item 23(2)(b) reads as follows:





"Every
person has the right to –






  1. lawful
    administrative action where any of their rights or interest is
    affected or threatened;








  1. procedurally
    fair administrative action where any of their rights or legitimate
    expectations is affected or threatened;







  1. be
    furnished with reasons in writing for administrative action which
    affects any of their rights or interests unless the reasons for that
    action had been made public; and







  1. administrative
    action which is justifiable in relation to the reasons given for it
    where any of their rights is affected for threatened."






Article
18 of the Namibian Constitution on the other hand reads:






"Administrative bodies and
administrative officials shall act fairly and reasonably and comply
with the requirements imposed upon it by the common law and any
relevant legislation, and persons aggrieved by such acts and
decisions shall have the right to seek, redress before a competent
Court or Tribunal."









Whereas
Chaskalson, CJ, who wrote the majority judgment, held that the
aforesaid subparagraph (b), read with paragraphs (a), (b) and (c) did
not extend the existing grounds for interference to include
substantive fairness, the minority held that it did.





Chaskalson,
CJ, said that if such extension "had been the purpose of item
23(2)(b), subpar (b) would not have confined itself to
procedurally fair administrative action, but would have
referred generally to "fair administrative action
".
(My emphasis added.)





But
this is precisely what article 18 of the Namibian Constitution did by
not confining itself to "procedurally fair administrative
action
", but provided generally that – "Administrative
bodies and administrative officials shall act fairly and
reasonably
… and person aggrieved by the exercise of such
acts and decisions
, shall have the right to seek redress before a
competent Court".





4. The
general principle of a duty to act fairly and reasonably, supplements
the common law and any relevant statute law, but obviously any common
law or statute law in conflict with this provision, will be
unconstitutional.






5. The
principle of legitimate or reasonable expectation has been overtaken
by the aforesaid general principle in Article 18, but remains a
specific concept which can and should be used as a tool in the
implementation of the aforesaid wide and undefined principle of
acting fairly and reasonably. The same applies to the principle of
the common law discussed above that the audi alterem partem
rule should be applied when an administrative Tribunal or official is
privy to information of which an applicant would probably not have
knowledge. The concept also applies when the Administrative
institution or official adopt a new policy of which the applicant is
unaware.






6. Article
18 makes no difference as did the common law between quasi
judicial and purely administrative decisions.






7. Mainga
J in the court a quo found it necessary to attempt to explain
the difficult concept of the exercise of discretion by referring to
the dicta of Horwitz J in the case of Van Aswegen v Administrator
Orange Free State
.4






Since
the enactment of our art 18, the quotations referred to have become
even more appropriate and indeed even more helpful.







Horwitz J said inter alia:







"Discretion must be
exercised on grounds based on facts which are obtained in one way or
another. Discretion is something more than a gut feeling…"






Mainga
J then referred with approval to Halsbury’s Statutes of England,5
wherein the learned authors stated:





"Discretion
is a science of understanding to discern between falsity and truth
,
between right and wrong, between shadows and substance,
between equity and colourable glosses and pretences, not to
do according to the will and private affections
…"





"Discretion
means
when it is said that something is to be done within the
discretion of the authorities that the something is to be done
within the rules of reason and justice and not according to private
opinion
; according to law and not humour. It is to be
not arbitrary, vague or fanciful, but legal and regular
."(My
emphasis added).








In
the case of Mostert v Minister of Justice;6
this Court dealt with the meaning of the term reasonable in the
context of Art 18;






"The word ‘reasonable’
according to the Concise English Dictionary, 9th ed.,
means:







Having sound judgment;
moderate; ready to listen to reason; not absurd;
in accordance with reason’.






Collectively
one could say in my opinion, that the decision of the person or body
vested with power, must be rationally justified."








IV. FINAL
CONCLUSIONS AND REMARKS
:


The
Court a quo held:






1.1 The Minister did not afford
to applicant a hearing, alternatively a proper hearing, before
the decision was taken;







1.2 The Minister failed to
appreciate Dr Lisse’s right, alternatively, his legitimate
expectation to a fair procedure and decision-making.







1.3 The Minister failed to apply
her mind properly to the matter at hand;







1.4 The decision was in all the
circumstances, unfair, unreasonable and in conflict with Article 18
of the Namibian Constitution.






2. The
decision should not be send back to the Minister for a
reconsideration of the application, but the Minister should be
ordered to issue to Dr Lisse the authority required in terms of
Section 17 of the Act.






The
learned judge a quo, thoroughly considered the law and the
facts on the issue of referral back and based his decision on such
law and facts. It is appropriate at this stage to refer to his
judgment in regard to the law. He first quoted from a judgment of
Gibson J in the High Court of Namibia where the learned judge had
this to say in the case of "The Namibian Health Clinics cc v
The Minister of Health and Social Services
.7







"The submission on behalf
of the Applicant that the Respondent’s decision making was biased
and hamstrung by policy considerations can’t be dismissed lightly.
That this is so is self evident from the Permanent Secretary’s view
that there has been an unacceptable proliferation of permit holders
giving rise to a false impression that the scope of a nurse's
profession has changed. What is implied in these words is that the
Permanent Secretary clearly disapproved of the practice. Given
this preconceived view, I do not consider it unreasonable to hold
that a public official who subscribes to the views spelt out above
was bound to pay only a lip service to the processing of the
application, and would be far removed from being objective,
reasonable, or fair
. (the underlining is mine)





In the result it is my finding
that in these circumstances it would be unjust to return the
application to the respondent for his consideration".










Mainga
J then referred to the decision of the Supreme Court of Appeal of
South Africa in the case of Erf 167 Orchards CC v Greater
Johannesburg Metropolitan Council and Another
8
where is was stated:





"When
setting aside such a decision, a Court of law will be governed by
certain principles in deciding whether to refer the matter back or
substitute its own decision for that of the administrative organ.
The principles governing such a decision have been set out as
follows:






From a survey of the…decisions
it seems to me possible to state the basic principle as follows,
namely that the Court has a discretion, to be exercised judicially
upon a consideration of the facts of each case, and that, although
the matter will be sent back if there is no reason for not doing so,
in essence it is a question of fairness to both sides.’





(Livestock
and Meat Industries Control Board v Garda
1961 (1) SA 342 (A) at
349G. See also, inter alia, Local Road Transportation
Board and Another v Durban City Council and Another
1965 (1) SA
586 (A) at 598 D-F; and Airoadexpress (Pty) Ltd v Chairman, Local
Road Transportation board, Durban, and Others
1986 (2) SA 663 (A)
at 680 E-F).





The
general principle is therefore that the matter will be sent back
unless there are special circumstances giving reason for not doing
so. Thus, for example, a matter would not be referred back where the
tribunal or functionary has exhibited bias or gross incompetence or
when the outcome appears to be forgone. (Airoadexpress (Pty) Ltd
v Chairman, Local Road Transportation Board, Durban, and Others
(supra at 680 F-G).)"








Mainga
J then set out the facts and applied the law to the facts. In this
regard he gave his main reason for not sending the matter back to the
Minister for reconsideration, as follows:





"The
respondent in casu, exhibited bias against the
applicant and it is not likely that she will change her attitude…"








3. I
agree with Mainga J’s reasoning. The following additional points
can be distilled from my extensive analysis of the reasons:






(i) I regret to say that the
consideration by the Honourable Minister and her three mentioned
advisers, was a travesty of justice – biased, arbitrary and a
failure to apply their minds; a failure to apply the most elementary
rules of reason and justice such as audi alterem partem and in
total conflict with Art 18 of the Namibian Constitution and the other
articles I have referred to in this judgment.







(ii) It is obvious that Dr Lisse
as well as his patients have already suffered substantial prejudice.
A referral back for reconsideration, will cause additional further
undue delay, particularly when this Court is not in a position to
determine how long the deliberations may take this time and when the
advisers of the Minister will become available. As the Minister
herself indicated in her affidavit on the availability of persons
entrusted with contributing to the decision on the application.





"It
may take longer – months at times. The period depends on the
availability of persons entrusted with contributing to the decision
on the application".








4. For
these reasons, I agree with the Court a quo that there should
be no referral back for reconsideration, but only a direction,
ordering the authority in terms of Section 17 to be granted within 30
days of the making of this order.





5. I
am also convinced that if a code of conduct and/or written rules
exist at the Windhoek State Hospital, such code and/or rules should
be made available to Dr Lisse to enable him as well as medical
practitioners in the same position to comply with such code and
rules, and thereby contribute to the orderly, more efficient and
harmonious functioning of the hospital. Obviously such a code and/or
rules should also be available to all personnel at the hospital and
should be adhered to also by them.





If
no such code and/or rules are in existence, urgent steps should be
taken to prepare and finalize such code and/or rules. In this manner
not only the interest of medical practitioners and their patients
will be served, but also that of hospital personnel and the public
interest in general.





6. I
am disappointed to experience once again, such a deficient exercise
of discretion by senior government administrators, notwithstanding
the existence of the Namibian Constitution since 21 March 1990, and
the many decisions by this Court and the Namibian High Court,
interpreting the Constitution and setting out the principles and
procedures to be followed by administrative tribunals and/or
officials.





I
trust that serious efforts will be made from now on to drastically
improve the knowledge, skills and understanding of such tribunals and
officials in this regard.








In
the result, I propose a slightly amended order reading as follows:






1. The appeal is dismissed.







2. The Minister of Health and
Social Services is directed to issue to Dr Lisse a written
authorization in terms of Section 17 of Act 36 of 1994 in respect of
the Windhoek Central State Hospital within 30 days from the date of
this order.







2.1 The Minister is further
directed to supply Dr Lisse with a written Code of Conduct
and/or Rules, at the time of the issue of the aforesaid direction,
should such Code and/or rules have been in existence at the time the
application by Lisse was decided.









3. The Minister is ordered to pay
the taxed costs of Dr Lisse in this Court as well as in the Court a
quo
.

















________________________


O'LINN,
A.J.A.

















I
agree.

















________________________


CHOMBA,
A.J.A.











I
agree.

















________________________


GIBSON,
A.J.A.





















COUNSEL
ON BEHALF OF THE APPELLANT:


INSTRUCTED
BY:






MR.
M.C. KHUPE


THE
GOVERNMENT ATTORNEY



COUNSEL
ON BEHALF OF THE RESPONDENT:


INSTRUCTED
BY:






MR.
A. CORBETT


ENGLING,
STRITTER & PART








1
1999 (3) SA 715D & C.L.D at 727 F.





2
The Chairperson of the Immigration Selection Board v Frank: E E &
A, 2001 NR 107
E-H





3
This view has been laid down in my decision in the High Court in
Aonin Fishing (Pty) Ltd v Minister of Fisheries and Marine
Resources
1998 NR 147 HC and confirmed by this Court in:



The Chairman of the Immigration Selection Board v
Frank
, 2001 NR 107 SC 109E-110B; 116F-121G; 170F-176I



Government of the Republic of Namibia v Sikunda
2002 NR 2003 SC at 226G-229F. See also High Court decision 2001 NR
181.



Mostert v Minister of Justice, 2003 NR 11 at
22J-28H.



Cronje v Municipal Council of Mariental, 2004
(4) NLLP 129 at 175-182.



Bel Porto School Governing Body & Others v
Premier Western Cape & Another
2002 (3) SA 265 CC at 291C
–295H; 300C-316E.





4
1955 (3) SA 60 OPD at 71 (C) and 71 D-E.





5
2nd edition, (1951) part 25, p16.





6
See footnote 3





7
Unreported judgment handed down on 10th September 2002.





8
1999 (1) SA 92 (SCA) at 109 C-G.