The Minister of Health and Another v Maliszewski and Others

The respondents were medical doctors who had qualified at overseas universities (Poland, Hungary, Slovakia, Serbia, Bulgaria, and Russia) and immigrated to South Africa. They were granted "limited registration" by the South African Medical and Dental Council, which permitted them to work only in the public health service (government or provincial hospitals). All respondents became permanent residents and citizens of South Africa, but all acquired citizenship after 31 December 1991. They sought "full registration" which would allow them to enter private practice as general practitioners, but the Council refused on the basis that they had not passed the examination for full registration (EFR). In 1991, the Council had granted a "special dispensation" to returning South African exiles and others who acquired citizenship before 31 December 1991, allowing them to obtain full registration without passing the EFR, subject to certain conditions including a year's intern training and certification of competence by their heads of department. The respondents claimed they were entitled to equal treatment with those who benefitted from the special dispensation, arguing that the cut-off date of 31 December 1991 was arbitrary and that they had been unfairly discriminated against. They instituted action against the Minister of Health and the Council seeking an order compelling full registration without restriction.

• Whether the respondents were entitled to full registration without passing the EFR on the basis of the special dispensation granted in 1991
• Whether the Council's refusal to extend the special dispensation to the respondents constituted unfair discrimination
• Whether the cut-off date of 31 December 1991 for the special dispensation was arbitrary, unreasonable or irrational
• Whether the Council had a discretion under section 4(g) of the Act to recognize the respondents' foreign qualifications as equal to prescribed South African qualifications
• Whether a mandamus could be granted compelling the Council to register the respondents without the EFR requirement

The appeal succeeded with costs (including costs of two counsel), but excluding costs relating to two-thirds of the appeal record. The appellants' attorneys were ordered not to recover from their clients any costs relating to the preparation and presentation of two-thirds of the appeal record. The High Court judgment was set aside and replaced with an order dismissing the action with costs (including costs of two counsel).

A special dispensation granted by a regulatory body in response to unique historical circumstances, with clearly defined temporal limits and beneficiary criteria, does not create a general policy or practice that can be extended beyond its terms. Such a dispensation creates no legitimate expectation for persons falling outside its scope, and its expiry results in the automatic application of normal statutory requirements. A cut-off date for such a dispensation is not arbitrary or discriminatory merely because it could have been set at a different time; the reasonableness of the date must be assessed in the context of the dispensation's purpose as a temporary measure. Persons who do not qualify for a special dispensation and who have not complied with statutory requirements for registration cannot compel a regulatory body to grant registration on the basis of alleged unfair discrimination where they have been treated equally with all others in their position.

The Court expressed sympathy for the respondents' position, noting their qualifications from internationally recognized universities, their extensive practical experience, their teaching responsibilities, and the demanding conditions in the public health sector. The Court observed that the requirements for full registration were "neither onerous nor unfair" for individuals in the respondents' position. The Court also made extensive observations regarding the unacceptable practice of including voluminous irrelevant documentation in appeal records, reiterating warnings from previous cases and emphasizing that attorneys must exercise proper judgment and supervision in record preparation, consulting with trial counsel or senior practitioners when necessary. The explanation that time pressures and lack of familiarity with the matter led to inclusion of all exhibits was rejected as inadequate.

This case establishes important principles regarding temporary regulatory dispensations and their limitations: (1) Special dispensations granted in response to unique historical circumstances (such as the transition from apartheid) do not create ongoing entitlements or legitimate expectations for persons falling outside their defined scope. (2) Cut-off dates for such dispensations, while necessarily somewhat arbitrary, are not automatically unreasonable or discriminatory. (3) Once a special dispensation expires, normal statutory requirements apply without exception. (4) Equal treatment does not require extension of benefits beyond a dispensation's defined terms; equality is assessed by comparison with others in the same position at the relevant time. The case also reinforces the Court's willingness to impose punitive costs orders against legal practitioners who burden courts with excessive, irrelevant documentation, continuing the approach established in cases like Maskam Boukontrakteurs and Absa Bank v Davidson. It serves as a warning that proper supervision and care must be taken in preparing appeal records.