South African Nursing Council v Khanyisa Nursing School (Pty) Ltd and Another

Khanyisa Nursing School (Pty) Ltd (Khanyisa) applied to the South African Nursing Council (the Council) for accreditation to offer two nursing programmes: a diploma in nursing for general nurses and a higher certificate in nursing for auxiliary nurses. After lengthy delays dating from the application in December 2014, the Council granted accreditation on 30-31 March 2022 (notified on 26 April 2022). However, the accreditation contained a contested stipulation that the programmes could only commence "at the beginning of the academic year 2023." Khanyisa objected as this would prevent it from commencing programmes in May 2022, which would have allowed students to complete their studies before the May 2023 board examinations. The delay would also cause Khanyisa financial harm. The Council refused to remove the stipulation, claiming it was functus officio. Khanyisa brought urgent review proceedings in the High Court to set aside the contested stipulation.

• What is the correct interpretation of 'any calendar year' in the definition of 'academic year' in regulations R 169 and R 171 promulgated under the Nursing Act 33 of 2005?
• Does 'any calendar year' mean strictly 1 January to 31 December, or does it mean any 12-month period commencing from any date in a given year?
• Did the Council have the power to impose the contested stipulation requiring programmes to commence only at the beginning of 2023?
• Did Khanyisa have a legitimate expectation to commence programmes by mid-2022 based on the Council's past practice of permitting mid-year commencement?

The appeal was dismissed with costs, including costs of two counsel. The High Court order was sustained, permitting Khanyisa to commence the accredited programmes on or before 4 July 2022 without the contested stipulation restricting commencement to the beginning of 2023. The punitive costs order made by the High Court was also upheld as falling within the court's discretion.

In the context of regulations R 169 and R 171 promulgated under section 58(1)(f) of the Nursing Act 33 of 2005, the phrase "any calendar year" in the definition of "academic year" means a period of 12 months commencing from any date in a given year, and not strictly a period from 1 January to 31 December. This interpretation is mandated by: (1) the vocational training context in which the regulations operate; (2) the functional purpose of ensuring 44 weeks of study occur within a bounded timeframe; (3) the flexibility required by practical realities of nursing training and national health needs; (4) the timing of examinations; and (5) the historical practice of the Council in accrediting programmes with mid-year commencement. An administrative body therefore lacks the power to impose a stipulation requiring programmes to commence only at the beginning of a January-December calendar year when the regulations permit commencement at any time during a 12-month period.

The Court made several important obiter observations: (1) It cautioned that "the lawyer's reverence for dictionaries has limits" and that dictionary meanings often give rise to further questions about which community's usage is reflected and over what time period; (2) It noted that the conclusion about the meaning of "any calendar year" is "confined to the regulatory setting in which this term is used in the regulations to which I have referred," suggesting the interpretation may not apply universally in other contexts; (3) The Court noted it did not need to engage the second issue regarding legitimate expectation, which would have involved "legal questions of no small complexity," particularly "whether an unlawful or ultra vires representation can found the basis of a substantive legitimate expectation"; (4) The Court observed that while the Council's conduct in making mid-year accreditations was "by no means dispositive" of the meaning (as the Council may have acted in error), it was "at least indicative" that no convention existed requiring January-December academic years; (5) The Court noted that the High Court's punitive costs order was based on the Council's "dilatory conduct in accrediting the programmes, when access to education is of such importance to the health care system."

This case is significant for South African administrative and statutory interpretation law because: (1) It provides important guidance on the interpretation of subordinate legislation, emphasizing functional and purposive interpretation over rigid dictionary definitions; (2) It warns against "selectivity bias" in choosing dictionary meanings and cautions that "to stare blindly at the words used seldom suffices to yield their meaning"; (3) It demonstrates the importance of context, purpose and practical considerations in interpreting regulatory provisions, particularly in specialized vocational training settings; (4) It establishes that in the context of nursing education regulations under the Nursing Act 33 of 2005, an "academic year" and "calendar year" should be interpreted flexibly to accommodate the practical needs of vocational training and public health imperatives; (5) It affirms that an administrative body's historical interpretation and application of its own regulations is relevant (though not determinative) to statutory interpretation; (6) It reinforces that interpretation must be guided by practical common sense and the broader social purpose of the regulatory scheme, particularly where public health and access to education are implicated.