The South African Dental Association (SADA), representing the majority of dentists in South Africa, challenged regulations promulgated by the Minister of Health under the Health Professions Act 56 of 1974. These regulations recognized dental assistants as health professionals, set qualifications for their registration, and defined the scope of their profession. The Dental Assistants Association of South Africa (DAASA) had advocated for professional recognition and regulation since 1995, seeking formal training requirements and professional protection. SADA made various representations to the Minister between 2001 and 2010, initially expressing support in principle for registration but later objecting to the regulations on grounds that they lacked statutory power, ignored SADA's representations, and would lead to unemployment and criminal liability for dental assistants and dentists. The regulations in question were promulgated between 2005 and 2012, establishing a professional board, setting qualifications, providing for registration, and defining the scope of work for dental assistants.
The appeal was dismissed with costs, including the costs of two counsel where employed by each of the respondents.
The binding legal principles established are: (1) The making of regulations by a Minister constitutes administrative action within the meaning of PAJA and must comply with its requirements, including the 180-day time limit for review applications in section 7(1). (2) Under the Health Professions Act 56 of 1974, read purposively, a register for a new health profession need not be established before a professional board is constituted; rather, the register should be kept consequent to or attendant upon the establishment of a board, and logically the scope of the profession should be defined before the obligation to register arises. (3) The sequential process for establishing a new regulated health profession involves: (a) establishing a professional board (section 15), (b) defining the scope of the profession (section 33), and (c) keeping a register and requiring registration (sections 17-18). (4) The general rule in Biowatch that unsuccessful litigants in constitutional litigation against the State should not be ordered to pay costs does not apply where there has been impropriety in the manner in which litigation has been undertaken, including taking inconsistent positions, failing to make full disclosure, and conducting litigation in a vexatious or obstructive manner.
The court made several non-binding observations: (1) The struggle of dental assistants for professional recognition is similar to historical struggles by other health professions (such as dental therapists) against resistance from established professions. (2) The infection control risks in dental practice justify regulation of dental assistants given their exposure to communicable diseases and role in prevention. (3) SADA's objections appeared motivated more by economic self-interest (maintaining low wages for dental assistants) than genuine concern for public welfare or the interests of dental assistants themselves. (4) The worldwide trend is toward greater regulation of allied health professions in the public interest, as reflected in World Health Organization recommendations. (5) Many comparable jurisdictions (Australia, United Kingdom, United States, European Union countries) have systems for registering or regulating dental assistants. (6) The court expressed concern about SADA's "condescending and patronising attitude" toward dental assistants and its failure to cite DAASA (the most financially vulnerable party) as a respondent. Willis JA, in a separate concurring judgment, disagreed with the moralistic censure in paragraph 59, noting that while SADA's position may have been unfortunate and unwise, the case should be decided on legal grounds rather than judicial views about regulation, and that the dental profession had functioned "fairly well for decades, if not centuries" without regulation of dental assistants.
This case is significant in South African jurisprudence for several reasons: (1) It clarifies the procedural requirements under PAJA for challenging subordinate legislation, confirming that ministerial regulations constitute administrative action and are subject to the 180-day time limit in section 7(1). (2) It interprets the statutory framework for establishing new health professions under the Health Professions Act 56 of 1974, clarifying that there is no requirement for a register to be established before a professional board can be constituted, but rather that the register should be kept consequent to or attendant upon the establishment of a board. (3) It demonstrates the court's support for transformation in the health professions sector, recognizing the historical disadvantage faced by dental assistants (a predominantly female and Black group) and the public interest in regulating health-related professions. (4) It applies the Biowatch principles regarding costs in constitutional litigation, finding that improper conduct in litigation can justify departing from the general rule against awarding costs against unsuccessful litigants in constitutional matters. (5) It reflects the global trend toward regulation of allied health professions in the public interest, citing World Health Organization recommendations. The judgment also illustrates the court's willingness to criticize parties for taking inconsistent positions, failing to make full disclosure, and conducting litigation in a manner that appears designed to obstruct transformation and public interest objectives.