Uundjondjo v Medical and Dental Council of Namibia (HC-MD-CIV-APP-ATL-2022/00005) [2023] NAHCMD 210 (20 April 2023)

REPUBLIC OF NAMIBIA HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK JUDGMENT In the matter between: HC-MD-CIV-APP-ATL-2022/00005 DR MANENE UUNDJONDJO APPELLANT and THE MEDICAL AND DENTAL COUNCIL OF NAMIBIA RESPONDENT Neutral Citation: Uundjondjo v The Medical and Dental Council of Namibia (HC-MD-CIV-APP-ATL-2022/00005) NAHCMD 210 (20 April 2023). Coram: MASUKU J Heard: 21 October 2022 Delivered: 20 April 2023 Flynote: Appeal – Section 57 of the Medical and Dental Council Act 10 of 2004 (‘the Act’) – Civil Procedure – judgments and orders and the application of the functus officio principle – Powers and functions of the Executive Committee of the Medical and Dental Council – Composition of the appeal committee of the Medical and Dental Council. Summary: The appellant was registered as a medical intern at the Onandjokwe Hospital, having obtained her medical degree from Russia. She was required to complete her internship within a period of three years. She failed to do so and before the expiry of that period, she applied to the respondent for extension of time. Her application was unsuccessful for the reason that the respondent took the position that she had struggled in her internship and did not finish all the rotations that she was required to. Dissatisfied with the decision of the respondent, she appealed to the appeal committee of the respondent, set up in terms of s 54 of the Act. Her appeal was dismissed by the appeals committee, hence the appeal to this court. Held: That the appeals committee was properly constituted when it heard the appellant’s appeal. The language employed by the legislature does not require medical interns to be co-opted and to form part of the appeal committee as they are in a transitional stage of their careers and are not a separate and fully-fledged profession as such. Held that: The Executive Committee of the respondent was well within its rights to make decisions such as that of the appellant in between the Council’s meetings. Held further that: The reason that the chairperson of the appeals committee should be either a retired judge, magistrate or senior counsel, is so that he or she should offer guidance to the members of the respondent, who are not legally trained. Held: That the chairperson of the committee was not entitled to make his own decisions as if they were decisions of the committee. The appeal committee’s decisions must be made by the entire members of the committee (or a quorum thereof). The members should signify their assent or dissent thereto. As such, the chairperson is not entitled by virtue of his position, to make decisions, which have not been expressly concurred in by the members of the appeal committee and they be attributed to the appeal committee. Held that: Where the appeal committee has made a decision, it is not open to it to revisit that decision, even if it thinks it is erroneous. Once a decision is made, the appeal committee becomes functus officio and can only revisit the decision if it corrects arithmetic errors, orders as to costs and grammatical errors. It is not entitled to change the sense and substance of the judgment as it corrects those errors. Appeal upheld with no order as to costs. ORDER 1. The decision of the appeals committee dismissing the appellant’s appeal is set aside. 2. The matter is remitted to the appeals committee to hear the appellant’s appeal afresh. 3. The appeals committee must be differently constituted for the purposes of hearing the appeal. 4. There is no order as to costs. 5. The matter is removed from the roll and is regarded as finalised. JUDGMENT MASUKU J: Introduction [1] Serving before this court for determination is an appeal lodged by the appellant, Dr Manene Uundjondjo against a decision of the appeal Committee of the Medical and Dental Council of Namibia taken on 18 March 2022. In that decision, the said Committee rejected Dr Uundjondjo’s application for the extension of her medical internship for a period of six months. [2] I will, for ease of reference in this judgment, refer to Dr Uundjondjo as ‘the appellant’. The Medical and Dental Council of Namibia, which features as the respondent in these proceedings, will be referred to as ‘the Council’, whereas the Appeal Committee of the Council will be referred to as appeal committee. Background and relevant events [3] It is perhaps important, at this juncture, in dealing with the relevant background, to record some of the key events in this matter in some detail. This is so because these may later prove to be important landmarks in the final determination of the matter. This may, at first blush, seem laborious, but it is important. [4] The appellant is a young woman who set out in life to pursue the medical profession. In her quest to realise her dream, she enrolled in a medical school in the Orgarev, Mordovia State University, Russia. She completed her medical course in June 2016. She returned to Namibia and was, in terms of the relevant legal framework, required to undergo a pre- registration evaluation for medical students. On 8 February 2016, the appellant was registered as a medical intern at Windhoek Central Hospital.1 [5] By letter dated 12 February 2018, the appellant was given placement with the Ministry of Health and Social Services as a medical intern at Onandjokwe Intermediate Hospital.2 She was accordingly registered with the Council on 19 February 2018 and her placement at Onandjokwe Intermediate Hospital was recorded in her certificate of registration.3 [6] On 13 January 2020, the appellant wrote a letter to Registrar of the Council, requesting an extension of her internship and salary for a period of 1 Page 47 of the appeal record. 2 Page 48 of the appeal record. 3 Page 50 of the appeal record. 12 months.4 She stated in the letter that she made the request because she had not completed some of her rotations, including internal medicine and family medicine. She also recorded that she had to repeat some rotations, including Psychiatry, Orthopaedics, Paediatrics, Obstetrics and Gynaecology and Surgery, whose rotations ranged between one month and four months. It would appear from the said letter that she was scheduled to complete her internship in March 2020. [7] The Registrar of the Council, by letter dated 27 January 2020, 5 advised the appellant that her application for an extension was unnecessary for the reason that she was entitled to a period of three years to complete her internship and that her third year of internship was due to expire after March 2020. She was advised in the said letter that should it become necessary for her to apply for an extension in the future, she should file the request in writing not less than six months before the expiry of the three years. Finally, she was further advised that the decision whether or not to extend the internship was in the Council’s discretion. [8] On 8 March 2021, the appellant wrote a letter to the Council requesting the extension of her internship for a period of six months.6 The reasons advanced for the extension were that she had not completed all her rotations, e.g. surgery, which she was still busy with, and Psychiatry, Orthopaedics and internal medicine. She indicated that she had to repeat Orthopaedics because of maternity leave. [9] On 6 May 2021, the Registrar of the Council wrote a letter to the Medical Superintendent at Onandjokwe Intermediate Hospital, Dr Akutu Apollos Munyika, requesting a progress report regarding the appellant’s performance and whether her application for extension was supported by the hospital of placement.7 In response to the request from the Registrar, the 4 Page 52 of the appeal record. 5 Page 53 of the appeal record. 6 Page 55 of the appeal record. 7 Page 58-59 of the appeal record. Medical Superintendent Dr Munyika gave a bleak picture of the appellant’s performance. [10] In particular, Dr Munyika pointed out they had terminated the appellant’s internship in March 2021 when it expired and they advised her to apply for an extension with the Council. Regarding her performance, Dr Munyika stated the following: 1. Surgery – failed, and recommended to repeat for four months; 2. Internal Medicine – failed and recommended to come back for four months; 3. * 4. * 5. * 6. Psychiatry – failed and expected to repeat one month; 7. Family medicine - failed and expected to repeat one month; and 8. Orthopaedics – failed and expected to repeat two months. [11] The letter ended on a pessimistic note, namely: ‘It is vital to mention here that Dr Uundjondjo really struggled to get through. She is only signed off in three out of eight rotations. We have noticed that she really need (sic) to get the basics right. We have encouraged her to write to council for possible options. At this stage, we will submit this for council to decide on way forward for Dr Uundjondjo.’ [12] On 30 July 2021,8 the Council wrote a letter to the appellant, in response to her application for extension. The decision was to decline the application for extension. As the gravamen of the decision to refuse the application, the Council recorded that: ‘3. We wish to advise that your request for extension of internship for a period of six (6) months to complete your internship has been declined in that; 8 Page 62 of the appeal record. (i) For the past three years you have been struggling to successfully complete your internship training and have not been signed off in the following domains: Internal Medicine, Surgery, Psychiatry and Orthopaedics/Orthopaedic Trauma. (ii) A minimum of twelve (12) months period is required to complete the outstanding rotations contrary to your request of 6 months. (iii) You did not provide convincing reasons to the satisfaction of the Council as to why you could not complete internship within the prescribed period of three years. 4. As a result, your internship is regarded as cancelled as from the date of this letter and your name is removed from the register of medical interns. 5. The implications of the removal of your name is (sic) that you are no longer allowed to practise as a medical intern and practising as such without registration is an offence punishable by law. 6. Should you be aggrieved by the decision of the Council, you are at liberty to lodge an appeal within 30 days of the date hereof and in terms of Section 56 of the Medical and Dental Act, 10 of 2004 read with regulations relating to appeal, Government gazette No.4232 of 29 March 2009. 7. Do not hesitate to contact Mr Malakia Mateus should you need more information thereto.’ [13] On 23 August 2021, the appellant wrote a letter to the Council in essence requesting a reconsideration for an extension of the internship for a period of 12 months.9 In this letter, the appellant stated that she was unable to complete her internship in the prescribed period because: ‘Firstly, my biological mother was diagnosed with cancer and was terminally ill during my internship period. As a result of her condition, she needed palliative care and extensive support and care from her family until she passed away on 12 February 2021. This took a very heavy toll on me psychologically and physically, which subsequently affected my performance and completion of my rotations. Secondly, during my internship, I fell pregnant and this affected my ability to complete some of my rotations. In addition, please find below the four rotations I still 9Page 64 of the appeal record. need to complete and a dissemination of reasons I was unable to finish during the prescribed times.’ [14] Attached to the letter were a medical certificate confirming that the appellant had been pregnant and needed a Caesarean section in April 2021. She was given the period 23 April to 20 June 2020 to be off duty. 10 Also attached, is the appellant’s mother’s death certificate issued by the Roman Catholic Hospital in Windhoek.11 It shows that she passed away on 12 February 2021. The said letter further confirms the appellant’s version regarding her state of health and death related earlier in her letter to the Council. [15] On 25 August 2021, the registrar of the Council advised the appellant that her letter of appeal for extension was not in conformity with the requirements of the regulations.12 She was advised to file one compliant with the relevant regulations. It would appear that she did so because on 19 October 2021, the registrar of the council wrote to her advising that the reasons advanced by her in her letter dated 23 August 2021, for the extension, were not satisfactory.13 The Council stood by its letter dated 30 July, 2021, the Registrar remarked. [16] Disgruntled by the decision of the Council, the appellant then approached the Council’s Appeal Committee established in terms of s 56(1) of the Medical and Dental Act 10 of 2004, (‘the Act’). That provision entitles a person aggrieved by a finding or decision made by the Council or the professional conduct committee, to appeal to the appeal committee against the finding or decision made. [17] It appears from the record of proceedings of the appeal committee that the hearing of the appellant’s appeal was held on 18 March 2022. On that very date, the chairperson of the appeal committee, delivered an ex tempore 10 Page 71 of the appeal record. 11 Page 72 of the appeal record. 12 Page 73 of the appeal record. 13 Page 74 of the appeal record. judgment, presumably, of the appeal committee. The chairperson also indicated that he would ‘give a brief judgment now, but I will also write a full judgment and it will be delivered within fourteen days.’14 [18] The chairperson dismissed the appeal and held that the appellant applied for extension after the prescribed time. As such, he found, the appellant’s registration had lapsed on 1 March 2021. He also ruled that the appellant ‘struggled throughout and in three years she could only complete three (3) rotations out of eight (8), and it shows that there were problems with her as an intern, that she could not quite make it.’15 [19] True to his word, the chairperson delivered a reasoned judgment subsequently. It is not apparent on its face as to when it was handed down. It was signed only by the chairperson. I will not advert to its contents at the present moment. A word or two may have to be said about the propriety of delivering an ex tempore judgment and a written one on the same case later in this judgment. The grounds of appeal [20] On 26 April 2022, the appellant lodged an appeal against the whole ex tempore judgment issued on 18 March 2022 and the written judgment, which is alleged in the notice of appeal, to have been delivered on 12 April 2022. The appellant contends that the appeal committee erred in fact and in law in various respects. The grounds of appeal consist of 26 paragraphs and it is unnecessary to repeat all the allegations therein contained. [21] What I intend to do though, is to identify the main grounds of appeal from the notice of appeal and enumerate them below. First, it was the appellant’s case that the appeal committee was not properly constituted. In this regard, it was submitted that a person ‘practising’ as a medical intern should have formed part of the appeal committee. Second, it was alleged that 14 Page 181 of the appeal record. 15 Page 181 of the appeal record. the appeal committee misconstrued its powers by assuming that it had powers of appeal in the wider sense, including considering new evidence and/ or additional information on which the Council did not base its decision. [22] Third, it was contended that the appeal committee misdirected itself when it failed to consider the recommendation by Dr Munyika for the appellant to repeat certain rotations. It, instead, concentrated on only one aspect of Dr Munyika’s letter dated 10 May 2021, namely that the appellant could not get the basics right without any elaboration thereon. Fourth, that once the appeal committee delivered its ex tempore judgment, it became functus officio and could not thereafter, deliver another judgment in law as it purported to do. [23] Fifth, the appellant further took issue with appeal committee’s finding that the appellant’s application for extension of her internship on 8 March 2021, was submitted after the appellant’s internship was deemed cancelled on 1 March 2021. Sixth, the appellant contended that the appeal committee erred in law in finding as it did, that the appellant was to apply for extension of her internship lapsed on 1 March 2021, in the absence of the enabling statute, i.e. the Act and the regulations made thereunder, regulating the relevant period. [24] Seventh, the appellant contended that the appeal committee erred in law when it assumed that the appellant sought leave from it to condone her application for extension of her internship. This is because the appeal committee is not imbued with such power in terms of the Act and the regulations made thereunder. Eighth, the appeal committee was accused of erring in fact and in law when it found that the appellant sought condonation for the extension to complete her internship from it, thus failing to realise that the application for condonation was brought ex abundanti cautela (out of the abundance of caution) in case the appeal committee found that the Executive Committee of the Council had such powers to extend the period of internship. [25] Ninth, the appellant further contended that the appeal committee misdirected itself when it failed to find that the Executive Committee of the Council acted ultra vires (outside its powers), when it purported to decide the appellant’s application for extension of the internship period. Tenth, the appeal committee misdirected itself when it failed to make a finding that the Council failed to exercise its powers to decide on the appellant’s application for extension of the internship period. Instead, the Council endorsed the decision of the Executive Committee, contrary to the imperatives of the principle of legality. [26] Eleventh, the appellant further contended that the appeal committee misdirected itself when it failed to find that the Council impermissibly authorised the Executive Committee, appointed in terms of s 12(1)(a) of the Act, to exercise powers conferred on the Council in terms of s 6(2), as read with s 11(7) of the Act, to decide the appellant’s application for extension of her internship period. [27] Twelfth, it was contended that the appeal committee misdirected itself by failing to find that the Council exercised a discretion in terms of Regulation 3(9) of the Registration Regulations, when it dealt with an application for extension of the internship period. Thirteenth, the appeal committee was accused of misdirecting itself in law in failing to find that regulation 3(8) of the Regulations, relating to registration of interns and restoration of names to the register (the Registration Regulations), is subject to regulation 3(9) of the Registration Regulations. [28] Fourteenth, the appeal committee was accused of misdirecting itself in failing to find that compliance with s 24 of the Act is a pre-requisite for the removal of the appellant’s name from the roll of the register of medical interns. Last but by no means least, the appellant accused the appeal committee of misdirecting itself when it dismissed the appellant’s application for condonation, which had been brought ex abundanti cautela. The arguments presented [29] It will be seen from the grounds of appeal that the appellant took a kitchen sink approach in dealing with this matter. That notwithstanding, the argument does not deal with all the grounds of appeal raised and captured above. I will, in order to condense the issues, deal with the parties’ arguments in broad strokes on identified issues. I will then proceed to make my determination on the question whether the appeal should succeed, as Ms Shifotoka strongly argued, or it should be dismissed, as Mr Kangueehi emphatically retorted. The appellant’s argument [30] Ms Shifotoka, for the appellant, argued and quite strenuously that the appeal ought to be upheld and the appellant allowed to fulfil her dream. The first salvo fired by Ms Shifotoka, is that the appeal committee was not properly constituted for the reason that Dr Shituleni, was co-opted and he is not a registered member of the profession to which the appellant belongs. This, it was alleged, as in violation of s 17(1)(a)(i) of the Act. [31] It was further submitted on the appellant’s behalf that the appeal committee erred when it held that the appellant was registered as a medical intern with effect from 19 February 2018 and that as such, her internship was due to end at the beginning of March 2021. It was argued in this regard that the appellant was issued with a certificate of registration on 19 February 2018 and was placed as an intern on 9 April 2018. There was, therefor, no basis on which the appeal committee could conceivably find that the internship ended on 1 March 2021. [32] Another submission made on the appellant’s behalf was that the judgment issued by the appeal committee does not comply with the provisions of s 56(2)(b)(iii) of the Act. This provision requires that the appeal committee, in its judgment on appeal, must allow or dismiss the appeal. Furthermore, it was argued that the appeal committee did not pronounce whether the decision of the Council was confirmed or amended or that the penalty imposed, was amended or confirmed. It was coined as a judgment that ‘is bad in law.’ [33] Ms Shifotoka further argued that the appellant, after the dismissal of her first application for extension, filed another one for reconsideration. In the latter application, she detailed the reasons for the extension, including the calamity of the sickness and eventual death of her mother and how these events affected her psychologically and physically as well. [34] Furthermore, it was argued on the appellant’s behalf that the appeal committee did not consider the fact that she was with child and had to be booked off for several weeks as she had undergone a Caesarean section in the process. Had these issues been properly considered, the appellant would have been granted the extension that she sought, as the events she narrated, constitute good cause. [35] Another argument advanced was that the decision to refuse the extension of the internship was made by the executive committee of the Council and not by the Council itself. It was submitted in this regard that properly construed, the decision should have been made by the authorised body, namely, the Council and not the Executive Committee as happened in line with s 6(2) of the Act and regulation 3(9). The decision was therefor a nullity, as it was made by a body not empowered to do so by the relevant provisions of the law. [36] Ms Shifotoka further argued that the appellant’s removal from the register of interns was raised before the appeal committee. That notwithstanding, the said committee did not deal with that issue in its judgment. It was further submitted on the appellant’s part that the issue of removal of the appellant’s name from the register was inappropriate in the circumstances. What may have been done permissibly, if the situation was supported by the facts, was to have deemed or regarded the appellant’s registration as cancelled in terms of regulation 3(8). [37] In what is termed ‘evidence of struggle’, Ms Shifotoka argued that the appeal committee found that the appellant struggled and ‘it shows that there were problems with her as an intern, she could not quite make it’.16 It was submitted that there was no evidence before the appeal committee to enable it to come to that particular conclusion. It should, it was so submitted, have sought further evidence and information in terms of s 56(2)(b)(i) and (ii) of the Act, but chose not to do so. [38] Lastly, Ms Shifotoka submitted that the proper course to follow in this matter is for the court to break company with the approach in the run of the mill case. This is because the Council exhibited bias towards the appellant such that the referral of the matter back to the Council would yield unfairness to the appellant. Relying on Minister of Health and Social Services v Lisse,17 it was submitted on the appellant’s behalf that the proper course in the instant case, is for the court to endorse the appellant’s application for an extension and to order the respondent to bear the costs of the appeal. The respondent’s argument [39] Mr Kangueehi, for the respondent argued that the appellant’s registration as an intern lapsed at the expiry of the three year period provided in Regulation 3(8) and this was on 1 March 2021. It was argued that the appellant did not, as required and properly advised, apply for the extension of six months before the expiry of the internship period thus leading to her registration being regarded as having as cancelled. It was argued further that despite the existence of Regulation 3(9), which empowers the Council to extend the period of internship, that could not be done beyond the period allowed in Regulation 3(7) and 3(8). [40] It was also submitted on the respondent’s behalf that when motivating her application for the extension, the appellant was obliged to show good cause. What she, however mentioned in her letter, was that she failed to 16 Page 198 of the appeal record line 19-23 of ex tempore judgment. 17 Minister of Health and Social Services v Lisse 2006 (2) NR 739 (SC). complete the programme due to ‘unforeseen circumstances’. This, it was argued, falls far short of the required standard where a party is in default. That party must show good cause and the appellant dismally failed to do so. [41] It was argued that the Council also sought the opinion of Dr Munyika, who was the appellant’s supervisor but his report ‘is damning’18 as it shows that the appellant managed to complete only three from five rotations. The learned doctor further stated that the appellant struggled and could not get the basics right. In the circumstances, the Council was correct to refuse the extension requested. ‘Solomonic wisdom dictates that the appellant cannot be unleashed on the populace without the basics right’19, Mr Kangueehi further submitted. [41] It was further submitted for the respondent that the Council properly exercised its powers in terms of the Act. It was argued that there was nothing untoward in the Council establishing an Executive Committee to perform its functions as this is allowed by s 12 of the Act. The decision made by the Council was therefor validly made and cannot be properly assailed, Mr Kangueehi emphatically argued. [42] The respondent further poured scorn on the argument that the appeal committee was not properly constituted, as argued on the appellant’s behalf. This was, so the respondent argued, because it was in line with the requirements of s 12(3) of the Act. It was further submitted that even if the appeal committee was not properly constituted, the appellant has not shown any prejudice suffered thereby. [43] On the issue of the two judgments issued by the appeal committee, the respondents maintained that there was nothing untoward because the chairperson of the appeal committee had intimated on the delivery of the ex tempore judgment that another one would be issued in due course. The respondent therefor prayed that the appeal be dismissed with costs. 18 Para 28 of the respondent’s heads of argument. 19 Para 30 of the respondent’s heads of argument. Determination [44] Having outlined the arguments presented on the parties behalf, it should be pointed out that it may not be necessary to deal with each and every argument advanced. I do, however, intend to first deal with the issue of the composition of the appeal committee. I will thereafter proceed to deal with the rest of the arguments as may be necessary or expedient. Composition of the Appeal Committee [45] It must be recalled that the appellant’s counsel argued that the appeal committee was not properly constituted because there was no medical intern among the members thereof. The argument stems from the relevant provision, namely, s 12(3)(a) of the Act, the relevant portions of which I quote below: ‘The Council must establish an appeal committee consisting of – (i) a retired Judge or retired magistrate, or retired Senior Counsel, or a (ii) (iii) Senior Counsel, who will be the chairperson of the appeal committee; one or more members of the Council as the Council may determine; one person who is a member of any Professional Council established in Namibia by or in terms of any law relating to any health profession to which the Act does not apply; and (iv) one person who is not a registered person who is not a registered person in terms of this Act or in terms of any law referred to in subparagraph (iii).’ [46] The next provision is s 12(3)(c), which provides that, ‘The appeal committee, when conducting an appeal, must co-opt two registered persons practising in the profession of the registered person who appealed to such committee against the decision or finding made, or the penalty imposed, or the refusal or failure to make a decision, as the case may be, by the Council or by the professional conduct committee, to act as members of the appeal committee for the purpose of such appeal.’ [47] Ms Shifotoka argued and strenuously too, that the appeal committee was not properly constituted for the reason that there was no medical intern as required by s 12(3)(c) quoted above. Her submission was that whenever a medical professional is appealing, there must be two members of the profession to which the appellant registered member belongs. [48] I immediately made my discomfort with the correctness of this argument very plain during the hearing. My discomfort stems from the fact that a medical intern, although in some employment relationship, is not a profession standing on its own. Being a medical intern is a midway station towards eventually becoming a fully-fledged medical doctor, depending on the route or qualifications you want to obtain. [49] To draw a parallel, with the legal profession, there are trainee lawyers who are referred to either as candidate legal practitioners or articled clerks in other jurisdictions. They spend time under an admitted legal practitioner to learn and hone the skills of the profession. They eventually write prescribed admission examinations that see them being admitted as fully-fledged legal practitioners, if they pass the prescribed examination. [50] It would be absurd and indeed queer to then refer to candidate legal practitioners’ preparatory period as a fully-fledged profession, standing on its own. This is because it is a transitional training station towards becoming a fully-fledged legal practitioner. No one can, in the circumstances of this case, aspire to be a ‘medical intern’ their whole lives. That would be a strange profession that lacks finality and completeness and thus fulfilment. It must also not sink into oblivion that the members who were co-opted in this case, can be properly regarded as fit because they are registered medical practitioners who have walked in the shoes of a medical intern and would know and appreciate what is involved in that transitional and developmental stage of a medical intern. [51] I therefor come to the conclusion that there is no merit to this argument. It flies in the face of the objects of the co-option referred to in the relevant provision. It befuddles me to think of a medical intern standing in to assess the proficiency a fellow medical intern, when both are devoid of any medical qualification and registration in Namibia. That appears to be absurd and would not have been the intention of the legislature when it made the provision for co-option. This argument thus falls flat on its face and must be dismissed. Alleged abdication [52] Although coined differently, I understood the appellant to submit that the Council abdicated its responsibility and allowed its Executive Committee to take the critical decisions in this particular regard. Mr Kangueehi’s argument was a horse of a different colour. He referred the court to the provisions of s 12 of the Act. [53] Section 12(1)(a), (b) (c) and (d) of the Act, reads as follows: ‘12(1)(a) For the purposes of performing its functions or duties and exercising its powers in terms of this Act, the Council must establish an executive committee of the Council to so exercise the powers and perform the functions of the Council, subject to paragraph (b), during the periods between the meetings of the Council. (b) The executive committee – (i) does not have, except in so far as the Council otherwise directs in writing, the power to set aside or amend any decision of the Council; and (ii) must report to the Council in writing, at the first meeting of the Council after a power, duty or function has been exercised or performed by the executive committee, that it had so exercised or performed such power, duty or function, including such other particulars relating thereto as the Council may require. (c) the Council lay amend or set aside, at the meeting referred to in subparagraph (b), any decision or act of the executive committee made or performed in terms of that paragraph.’ [54] It would seem to me, from reading the above provisions, that the legislature intended that as far as possible, the Council sits and makes decisions pertaining to their functions under the Act. This, it was understood, would not be possible at all times. It was for that reason that the law made provision for the existence of the executive committee of the Council. It was established for the purpose of exercising the powers and functions of the Committee in between Council meetings. This was done in an effort not to hamstring the activities of the Council. [55] I do not understand the appellant’s complaint to be that the executive council did not follow the above provisions when it met to decide the matters related to her e.g. that it changed decisions of Council or sought to amend same or that there was no proper reporting of the decision made by the said committee. [56] The appellant’s case, as I understood it, was that the executive committee usurped the Councils powers and functions. In my considered view, the executive committee was empowered, in between the meetings, to take the decisions and to exercise the functions that it did, subject to the provisions of subsection (b)(i),(ii) and (c) quoted above. There is no allegation that the provisions of s 12(1)(b)(i)(ii) and (c) were in any manner, shape or form violated by the executive committee. This ground of appeal is, in my considered view liable to fail and I dismiss it accordingly. The alleged lapsing of the appellant’s internship and the alleged consequential effect [57] Mr Kangueehi, in his compelling address argued that the appellant’s internship lapsed and could not be extended by the Council. In other words, it was his submission that the internship lapsed due to effluxion of time. In order to interrogate this issue, it is perhaps important to have regard to the applicable Regulations. I must add that this argument was raised in response to the appellant’s contention that the Council unlawfully cancelled the internship in question. [58] The relevant provisions are to be found in Regulation 8. Regulation 8(2) provides that the internship period must consist of periods which, when added together, are not less than two years. Regulation 8(7), on the other hand, provides that the period of two years mentioned immediately above, must be completed within a period of three years after the date of first registration of a person as a medical intern. Rule 3(8) provides that subject to subregulation (9), a medical intern, who fails to comply with the subregulation (7), ie to complete the programme within the three year period from first registration, must be regarded as cancelled from the date when the three year period is exceeded. [59] Subregulation 3(9) is, in my view critical. It provides as follows: ‘The Council may, on good cause shown, extend the period referred to in subregulation (7), within which the medical internship must be completed by the medical intern.’ [60] Subregulation (7), it must be recalled, states that, ‘The period of two years for medical internship referred to in subregulation (1) must be completed within a period of three years after the date of first registration of a person as a medical intern.’ What becomes clear from the foregoing, is that the Council is empowered, where good cause is shown, to extend the three year period, within which the internship must be completed, as provided for in subregulation 3(7). That is the import of the two subregulations when read together. [61] The appeal committee, in its decision, held that at the time when the appellant made an application for extension of her internship, her internship had lapsed. The chairperson said in his ex tempore judgment that, ‘After the expiry of the three (3) years her internship came to an end in the beginning of the month following the three (3) years that have lapsed, which means that in, on the first of March 2021 her internship lapsed.’20 [62] This is in sharp contrast with the calculation made by the Council. In its letter dated 06 May 202121, the registrar wrote to Dr Munyika and citing the records, stated as follows at para 3: ‘According to regulation 3(8) of the regulations relating to the registration as an intern (No 7419 of December 2016), Dr Undjondjo’s internship must be regarded as cancelled from the 01st April 2021, being the date on which the prescribed maximum period of three years was exceeded. 4. On the 26th March 2021 and in accordance with regulation 3(9) of the regulations referred to in paragraph 3 above, the Council has received a request from Dr Undjondjo for the extension of internship training to complete her rotations in surgery, psychiatry, internal medicine and orthopaedics/orthopaedic trauma.’ [63] I am of the considered view that the calculation of time by the Council was correct regarding when the appellant’s internship started and ended. The date supplied by the appeal committee, of 1 March 2021, is not borne by the record and finds no basis at all in the letters and other documents filed of record in this matter. Furthermore, submissions by Ms Shifotoka regarding this issue were thrown out by the chairperson. He refused to allow her to deal with that issue as he had already taken a position on the matter. 22 To this extent, I find that the chairperson of the appeal committee, misdirected himself. [64] In this regard, it is clear that the appellant filed her application for extension within the three-year period, namely, on 26 March 2021, a few days before the expiry on 1 April 2021. When regard is had to regulation 3(8), the internship would have been cancelled on 1 April 2021. In its letter dated 27 January 2020, responding to the appellant’s first request for an extension, and 20 Page 197 of the appeal record, line 19-22. 21 Page 57 of the appeal record. 22 Page 179 of the appeal record. which was found to be premature, the appellant was informed that she must apply for the extension six months before the expiry of the internship. No authority for this direction was provided, whether in the Act or the regulations. [65] In this connection, I am of the considered view, having regard to regulation 3(9), that the appellant filed her application within the currency of the three year period and the application was not rejected or refused on the basis that it was filed out of time. The Council refused it on its merits. In this connection, in another letter by the Council to the appellant, dated 27 January 2020,23 the Council had, through the registrar, advised the appellant that her internship would end by March 2021, as the third year would commence after March 2020. The appellant was thus entitled to rely on the Council’s word and calculation in that regard. (Emphasis added) [66] I must add that the fact that the expiry of the three years occurred when the Council was already seized with the application cannot prejudice the appellant in this case. I therefor find that the ruling by the chairperson of the appeal committee on the expiry date was erroneous and did not serve to deny the Council of the right to consider the application for extension. I find that the chairperson erred in finding that the application for extension lapsed when he states it did on 1 March 2020. [67] I am even doubtful whether the appeal committee was entitled to make a ruling on this issue of the lapsing as it did. There was no evidence on this issue before it. I say so in particular, considering that there was no cross appeal filed to the effect that the Council had no power to receive and consider the appellant’s application for extension, considering that it was filed out of the prescribed three years. The appellant was confronted with an issue before the appeal committee that was not decided by the Council. The appeal committee judgment(s) 23 Page 54 of the appeal record. [68] I have deliberately referred to judgment(s) in the above sub-heading due to the notorious fact that the chairperson delivered two judgments in respect of this matter. The first was on 18 March 2022, which was ex tempore. It was followed by another judgment some 14 or so days later on 12 April 2022. The question that follows is, what is the status of the judgment delivered subsequent to the ex tempore judgment? Does it co-exist with the ex tempore judgment or supersedes it? [69] The learned authors Herbstein & van Winsen state the following in their celebrated work:24 ‘The general principle now well established is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it. The reason is that the court thereupon becomes functus officio: it’s jurisdiction in the case having been fully and finally exercised, its authority over the subject matter ceases.’ [70] At page 687, the learned authors continue and state that, ‘If a judicial officer delivers an ex tempore judgment and then prepares a revised version of it which amends, supplements or explains the original judgment without affecting the substance of it, the revised judgment will be considered to be the judgment of the court.’ Is that what happened in this case? [71] Before I answer the above question, I need to state that the law as stated by the learned authors is not confined solely to courts. It applies with equal force to tribunals and bodies, such as the appeal committee in this case. What the learned authors say is that once a court, a tribunal or indeed the appeal committee, has passed its judgment in a matter, its jurisdiction over that matter ceases and it cannot itself correct, alter or supplement it. An exception is where the court, having delivered an ex tempore judgment amends, supplements or explains the judgment without affecting its substance and I may add sense, as well. 24 Herstein & van Winsen, The Civil Practice of The Supreme Court of South Africa, 4th ed, Juta & Co, 1997, p686. [72] In answering the question posed in para 70 above, it appears to me that the instant case is not one where there was felt a need, after delivering the ex tempore judgment, to amend, supplement or explain it. In the latter instance, it will become plain after reading the ex tempore judgment that there are certain portions that need to be amended, supplemented or explained but without changing the sense and substance of the judgment. [73] In the instant case, the chairperson stated as follows up front and before delivering the ex tempore judgment:25 ‘I will give a brief judgment now, but I will also write a full judgment and it will be delivered within fourteen (14) days.’ (Emphasis added) It is accordingly clear that the chairperson deliberately decided before delivering the ex tempore judgment, to write another judgment. It was not a case where he belatedly saw the need to amend, supplement or explain certain portions that were not, for some reason, obscure or not well articulated in the ex tempore judgment. [74] It appears to me that the second judgment violates the functus officio principle, meaning that after delivering the first judgment, the appeal committee has fully and finally exercised its function. This is because at that time, it had exercised its authority over the subject matter. In the premises, I will have no regard to the second judgment, which must be regarded as pro non scripto, (as if it was never written). [76] In a recent judgment,26 the Supreme Court endorsed a judgment delivered in Cargo Dynamics Pharmaceuticals v Minister of Health,27 where the following legal position was adopted: 25 Page 181 of the appeal record. 26 Shanghala v State SA 62/2022 (6 March 2023). 27 Cargo Dynamics Pharmaceuticals v Minister of Health 2013 (2) 552 (SC) para 8 ‘The general principle is that once a court has duly pronounced a final judgment or order, it may not correct, alter or supplement it, as it is functus officio. There are four main exceptions to this rule: the judgment may be supplemented in respect of ancillary matters such as costs which the court overlooked; it may be clarified if its meaning is obscure or ambiguous provided the clarification does not vary “the sense and substance” of the order; a court may correct a clerical, arithmetic or other error to give effect to its true intention; and the court may amend its costs order in specific circumstances.’ [77] It appears to me that the appeal committee, or its chairperson ventured into impermissible terrain by making up his mind even before delivering the ex tempore judgment, that he would prepare and deliver the written judgment. The purpose was not to deal with any of the categories mentioned in Cargo Dynamics. The situation in this matter, as I see it, differs from the situation confronting the Supreme Court in the Shanghala case, where a judgment was read out in court and there were variations in the signed judgment, some of which the court found changed the sense and substance of the judgment delivered earlier. [78] There are further difficulties with the judgment, including the later one. There is no indication that either judgment was that of the appeal committee on its face. The ex tempore judgment, was pronounced by the chairperson. There is no indication that the members of the committee agreed with the judgment. Had they done so, this would have been recorded in the official transcript. [79] Although I have regarded the latter judgment pro non scripto, it is fitting to mention that it was never signed or concurred in by any of the members of the committee. On the face of it, it is a judgment issued and signed by the chairperson of the appeal committee. This is incorrect. A judgment of the committee must be concurred in by the members and they must sign the judgment, indicating their concurrence. If there are dissenting views on the judgment or aspects of it, the dissenting members would indicate their dissension with reasons and then sign off their dissension. [80] Section 56(2) of the Act, makes it plain that the appeal is dealt with and any decision made on the appeal, must be that of the appeal committee not just the chairperson. If it had been intended that the show be exclusively that of the chairperson alone, the provisions of the Act would have stated so in clear language. As result, there is no judgment pronounced by the committee, neither is an allegation made on the face of either the judgment, including the second one, that the members concurred therein. What the chairperson delivered as judgments, were a nullity. [81] While still on this aspect, Ms Shifitoka further punched holes into the judgment issued. She referred the court to s 56(2)(b) of the Act, regarding the powers of the appeal committee in dealing with the appeal before it. Section 56(2)(b)(iii) to (vi) entitle the committee to ‘(iii) allow or dismiss the appeal concerned; (iv) amend or confirm the finding or penalty made or imposed by the Council or the professional conduct committee relating to the appeal concerned; (v) make an order as to the payment of costs and how such costs must be determined; or make such other order in terms of this Act as the appeal committee may consider appropriate’. [82] The first ‘judgment’ does not make any order as required above. It was in the second ‘judgment’, about which I have pronounced, that the chairperson made an order dismissing an application for condonation and the appellant’s appeal with costs. A ruling on the determination of the costs, as required by the Act and stated in s 56(2)(b)(v), was not done. [83] I wish I could avoid making the comment that follows but it is one that is inevitable and I am in duty bound to make if I am to perform my duties in determining this appeal properly. The chairperson of the appeal committee let the committee down badly and by extension, the Council and the entire medical profession. [84] The decision by the legislature to appoint a retired judge, magistrate or senior counsel, to chair the appeal committee, was to ensure that the medical practitioners, who are part of the appeal committee and are understandably not experts in law, are afforded full and proper guidance in all the preparation and determination of the appeals that serve before them. In this connection, it was to ensure that all the legal issues, even obscure ones, that serve before the appeal committee, are handled competently and professionally. [85] From what I have stated above, this was unfortunately not done by the chairperson. He did a great disservice both to the medical and legal professions in this matter. A decision to appoint another person is necessary if the fiasco that occurred in this matter is not to be repeated, to the detriment of the medical professionals who refer their matters to the appeal committee. [86] A reading of the transcript of proceedings makes reading very difficult. Ms Shifotoka and her instructing counsel were given unnecessarily rough and untoward treatment by the chairperson. Had the appellant chosen to review the proceedings, the evidence of bias and untoward conduct by the chairperson, literally litter the record of proceedings. I will say nothing of this matter henceforth and leave this to the relevant authorities to decide. The application for extension of internship and the Council’s treatment of it [87] I now turn to deal with the application for extension of internship made by the appellant to the Council. I have touched on it earlier. The appellant, as previously stated, made the application for extension of her internship by letter dated 8 March 2021, which was referred to earlier.28 The letter reads as follows in part: ‘I, Manene Liis Lovisa Nangula Uundjondjo Identity number: 88062700356 and Salary number: U2706198800078 employed by Onandjokwe Hospital as an intern. I took up my internship in March 2018 and was scheduled to complete the program in March 2020 but I have not been able to due to unforeseen circumstances. 28 Page 55 of the appeal record. I hereby humbly request your good office to extend my internship for a period of six months I have some rotations that I have not completed i.e. Surgery which I’m currently busy with. I also have some rotations I have to repeat: Psychiatry – one month, Orthopaedics – 2 months due to maternity leave and Internal medicine – 2 months. Please accept the assurances of my highest consideration.’ [88] The registrar responded by letter dated 6 April 2022, 29 advising that the Council would deliberate on her request in June 2021. He undertook to advise her of the outcome of the application once determined. The registrar also advised the appellant that her internship would be regarded as cancelled as from 1 April 2021, when the three-year period of the internship would end. [89] In the interregnum, the Council wrote to Dr Munyika, requesting his report on the appellant’s performance in view of the application for extension.30 Dr Munyika responded on 10 May 2021.31 He gave his report on the appellant’s performance and stated as follows in conclusion: ‘It is vital to mention here that Dr Uundjondjo really struggled to get through. She is only signed off three out of eight rotations. We have noticed that she really need (sic) to get the basics right. We have encouraged her to write to Council for possible options. At this stage, we will submit for council to decide on the way forward for Dr Uundjondjo.’ [90] The Council responded to the appellant’s letter via a letter dated 30 July 2021.32 The operative portion of the letter is quoted below: ‘3. We wish to advise that your request for extension of internship for a period of six (6) months to complete your internship has been declined in that, 29 Page 57 of the appeal record. 30 Letter dated 6 May 2021, p 58 of the appeal record. 31 Page 60 of the appeal record. 32 Page 62 of the appeal record. (i) for the past three years you have been struggling to successfully complete your internship training and have not been signed off in the following domain: Internal Medicine, Surgery, Psychiatry and Orthopaedics/Orthopaedic Trauma. (ii) A minimum of twelve (12) months is required to complete the outstanding rotations contrary to your request of 6 months. (iii) You did not provide convincing reasons to the satisfaction of the Council as to why you could not complete internship within the maximum period of three years. 4. As a result, your internship is regarded as cancelled from the date of this letter and your name is removed from the register for medical interns. 5. The implications of the removal from the register is (sic) that you are no longer allowed to practise as a medical intern and practising as a medical intern as such without registration is an offence punishable by law.’ [91] On 23 August 2021, the appellant drafted and sent another letter to the Council, which was a request for a reconsideration of the application for extension of her internship. In this letter, she discloses two particular facts, which she claimed were the unforeseen circumstances behind her failure to complete the internship. [92] First, was that her biological mother was diagnosed with cancer and was terminally ill during her internship period. Because of her mother’s condition, she needed palliative care and extensive support from her family until she passed away on 12 February 2021. It was her case that she was required to travel between Windhoek, where her mother was based and Ondangwa, where the appellant was based, particularly between November 2019 and February 2020. Second, was that she fell pregnant and this affected her ability to complete some of the rotations. As indicated earlier, she provided evidence that she had to undergo a Caesarean section and was booked of for about two months. [93] The Council responded to the appellant’s reconsideration application by letter dated 19 October 2021. She was informed that her request had been considered by the Council on 25 September 2021 and that Council was not satisfied with the reasons provided by the appellant in support of the application for extension of her internship. She was accordingly advised that the Council stood by its letter dated 30 July 2021, declining the application. [94] The appellant does not take issue with the correctness of the Council’s decision. She rather takes issue with the fact that the decision was taken by a wrong body, namely, the executive committee, as opposed to the Council Itself. This is an issue that I have addressed earlier and in my view, the Act allows the executive committee to take decisions on matters in between the meetings of the Council. I therefor am of the considered view that this challenge must fail. [95] I am of the considered view that this is a matter that I should best not deal with. I say so in light of the fact that the matter, as will be seen below, is to be remitted to the appeal committee to deal with. For the court to comment on the sustainability or otherwise of the application for extension, at this stage, would be undesirable and consequently premature. I will say nothing more of this issue consequently. Was removal of the appellant’s name from the roll of medical interns proper? [96] Ms Shifotoka proceeded to question the propriety of the Council’s decision to remove the appellant’s name from the roll of medical interns. It was her submission that the said decision was not consistent with the law and her submissions on that issue fell on deaf ears before the appeal committee. The question is whether the Council was correct in ordering the removal of the appellant’s name from the roll. [97] During the appeal hearing, Ms Fenyeho, representing the Council submitted that the appellant’s internship was not cancelled by the Council but that it came to an end by operation of law.33 This is the position that the 33 Page 130 of the appeal record. chairperson of the appeal committee took and which I found to have been wrong regarding the date when the internship came to an end. [98] When one, however, has regard to the letter from the Council, dated 30 July 2021, refusing the application for extension of the internship, para 4 thereof reads that, ‘4. As a result, your internship is regarded as cancelled as from the date of this letter and your name is removed from the register for medical interns.’ This controverts the submission by Ms Fenyeho. The question is whether the appellant’s name was properly removed from the roll. [99] Regulation 4 deals with the issue of cancellation of internship. It seems to me that cancellation may be at the instance either of the medical intern or the approved medical facility in cases where there is an allegation, which in the opinion of the approved facility, reflects that the said facility is failing to comply with the internship agreement or the standard of medical or patient care acceptable or required by that facility. In the latter instance, the medical facility in question, must in writing terminate the internship and notify the Council of its decision within 30 days of the date of termination. [100] The issue of removal of intern’s name from the roll is governed by regulation 8. It provides the following: ‘(1) If the Council under regulation 5(2) investigates the medical internship, the Council must afford the medical intern and the approved facility an opportunity to be heard on the matter. (2) If after an investigation contemplated in subregulation (1) the Council is satisfied that the medical intern has failed to comply with a standard of medical or patient care acceptable to, or required by, the Council, these regulations or the applicable internship agreement, the Council may cancel the registration of the intern and remove the name of the intern from the register. (3) The Council must inform the medical intern, in writing, not less than 30 days before the intended cancellation and the removal of his or her name from the register …’ [101] What becomes plain is that there is a difference between cancellation at the instance of a medical facility and cases where an intern has not completed the internship within the specified period. Cancellation in terms of regulation 4 by the medical facility occurs when that institution is aware of allegations, which in its opinion, reflect the intern’s inability to comply with the terms of the internship agreement or the standard of acceptable care. This, it is clear, is associated with professional inadequacies. [102] The option of removal from the roll is very serious. From what appears in regulation 8, it is clear that the removal from the roll is normally a result of disciplinary issues on the part of the intern, related to failure to comply with a standard of medical care or patient care. In this instance, the intern must be afforded a hearing before the removal can be effected and this is required by regulation 8(3). [103] There is no issue of a complaint against the appellant in this matter relating to her standards of medical and patient care. Furthermore, she was not afforded any opportunity to deal with any allegation before her name was removed from the roll of interns. What appears to be the position in this matter is the appellant’s failure to pass her rotations well or on time, requiring that she applies for an extension of the three-year period which was declined. [104] The refusal of the appellant’s application for extension does not, however, entitle the Council to remove her name from the roll because she was never confronted with any disciplinary issue related to medical or patient care. Furthermore, she was not afforded an opportunity, as required, to state her case before the removal from the roll. It appears to me that the Council employed the wrong terminology in this case. [105] A removal proper, has deleterious consequences for the intern, in case she was desirous in future of entering internship again if that is permitted. A removal, as I have stated, takes effect after allegations of impropriety are established and the intern concerned has been afforded an opportunity to deal with those allegations. [106] In the circumstances, it seems to me that the decision by the Council, to remove the appellant’s name from the roll is inappropriate, considering the circumstances of the appellant’s case. The appeal committee failed to deal properly with this issue and appears to have insisted that the appellant’s internship had been ended by operation of law, when the letter from the Council suggested otherwise and in fact removed her from the roll without following the mandatory provisions of regulation 8. Conclusion [107] I have perhaps dealt with matters that I would not otherwise have had to deal with if this had been an ordinary case. I have sensed the need, for future purposes, to give some guidance, where deemed necessary, to the respondent, in respect of some of the procedural issues. It would seem that it is not every day that such matters serve before court, yet the decisions taken by the respondent are extremely important and may be career-altering at times. [108] It will become obvious, from what I have stated above, that in the instant case, there is no judgment at all from the appeal committee. What was purported to be a judgment by the chairperson is in terms of the law, a nullity for the reasons advanced. Furthermore, the requirements of the Act regarding the power of the appeal committee in dealing with an appeal serving before it, were in any event, not followed. There was no dismissal or upholding of the appeal. The appeal must, in my considered view, be upheld. [109] It will be seen that I have commented adversely about the conduct of the chairperson of the appeal committee in the course of the judgment. In the premises, I am of the considered view that it would redound to fairness for the matter to be remitted to a differently constituted appeal committee, so that new persons, who have not dealt with this matter previously, are designated to deal with the appeal. Costs [110] I must first take this opportunity to record the court’s indebtedness to Ms Shifotoka and her instructing legal practitioner for handling this matter pro bono. That notwithstanding, Ms Shifotoka spared no effort in prosecuting this appeal. This attitude of service for God, (which is what pro bono means), has become a rarity in this day and age. I therefor understood this revelation to mean that there should be no order as to costs, as officers of this court displayed great magnanimity, which should be encouraged and better still, emulated. [111] In view of what I have stated above, the ordinary order would have been to mulct the respondent in costs because it has evidently been unsuccessful in this appeal. The fact that the matter was handled pro bono, changes the landscape. There will thus be no order as to costs. Order [112] In view of the findings, conclusions and reasons therefor, I am of the view that the order that should follow in this matter is the following: 1. The decision of the appeals committee dismissing the appellant’s appeal is set aside. 2. The matter is remitted to the appeals committee to hear the appellant’s appeal afresh. 3. The appeals committee must be differently constituted for the purposes of hearing the appeal. 4. There is no order as to costs. 5. The matter is removed from the roll and is regarded as finalised. ___________ T S MASUKU Judge 36 APPEARANCES APPELLANT: E Shifotoka Instructed by: Kadhila Amoomo Legal Practitioners, Windhoek RESPONDENT: K Kangueehi Of Kangueehi & Kavendjii – Inc., Windhoek