The
applicant seeks a declaratory order to the effect that the applicant
is entitled to the issue of an unrestricted practicing certificate
permitting her to practice as a specialist obstetrician and
gynecologist. She also seeks consequential relief that the
respondents issue her with unrestricted practicing certificate
permitting her to practice as a specialist obstetrician and
gynecologist and costs of suit.
The
background facts are that the applicant is a Yugoslavian citizen. She
has a residence permit which permits her to remain in Zimbabwe
indefinitely. On 8 February 2000, the applicant applied for
provisional registration as a medical practitioner and specialist
registration as an obstetrician and gynecologist. She was duly
registered on 7 August 2001 with the practicing certificate
restricting her practice to a Government central hospital. She
commenced work at Parirenyatwa Hospital. The applicant then took
unpaid leave from 29 July 2002 to 28 February 2003.
In
April 2005, the applicant applied for re-registration on the
provisional register. This was approved in May 2005 subject to her
obtaining a post of Senior Registrar Obstetrician and Gynecologist
working in a Government hospital under the supervision of a
specialist gynecologist.
In
February 2006 the applicant wrote to the first respondent requesting
re-registration as approved in May 2005. She attached confirmation of
an offer of employment by Parirenyatwa Group of Hospitals. She was
duly registered on the provisional register with effect from 23
February 2006 for a period of three years.
In
January 2008, the applicant applied for the issue of an un-restricted
practicing certificate. The application was not approved.
The
applicant then filed the present application.
In
its opposing papers, the first respondent raised a point in
limine
that the applicant had not exhausted the domestic remedies available
to her before approaching the court.
I
will deal with this point first.
Counsel
for the respondents submitted that in terms of section 22 of the
Health Professions Act [Chapter
27:19]
(“the Act”), any person who is aggrieved by any decision taken in
regard to him by Council may appeal against the decision to the
Authority within thirty days after being informed of the decision.
Section
123 of the Health Professions Act provides for an appeal from the
Authority to this court.
It
was further submitted that the appeal procedure was capable of
affording the applicant effective redress. No special circumstances
or reasons were advanced by the applicant for approaching this court.
The applicant ought to have exhausted the domestic remedies available
to her under the domestic legislation.
Counsel
for the applicant submitted that the point raised in
limine
is without merit and ought to be dismissed…,. He said that this
court has already stated, in McGown
v Health Professions Council
1994 (1) 86 (H), that in such disputes as the present one, the
procedure for an appeal does not apply.
He
further submitted that in an application for a declaratory order,
such an order will be granted even if some other form of relief is
available.
In
my view, McGown
v Health Professions Council
1994 (1) 86 (H) can be distinguished from the present matter. In that
matter SMITH J, when he made the remark that “the applicant does
not have a right of appeal against the condition imposed by the PCC”
he was dealing with the provisions of the now repealed Medical,
Dental and Allied Professions Act [Chapter
244].
That Act did not provide a procedure for an appeal where a person had
a condition imposed by the PCC. The repealed Act did not have a
provision similar to section 22(1) of the Health Professions Act
[Chapter
27:19]
which provides for an appeal to lie to the Health Professions
Authority of Zimbabwe (“the Authority”) by any person who is
aggrieved by any decision taken in regard to him by a Council. It did
not also provide for an appeal to the High Court whereas the Health
Professions Act further provides for an appeal to lie to this court
where any person is aggrieved by a decision of the Authority. See
section 128(1) of the Health Professions Act [Chapter
27:19].
In
my view, the appeal procedure is available to the applicant as such a
procedure is available in terms of the Health Professions Act to any
person aggrieved by any
decision taken in regard to him…,.
The
applicant has decided to approach the court rather than proceed by
way of domestic remedies provided for in the Health Professions Act.
It
has been laid down in a number of cases that where domestic remedies
are capable of providing effective redress in respect of the
complaint, a litigant should exhaust the domestic remedies themselves
unless there are good reasons for not doing so. See Girjac
Services (Private) Limited v Mudzingwa
1990 (1) ZLR 243 (S)…,.
The
same approach was adopted in Masunda
v Chairperson of Cresta Lodge Disciplinary and Grievance Committee
HH115-94…, and Moyo
v Forestry Commission
1996 (1) ZLR 173 (H)…,.
The
applicant did not advance, in her founding papers, good reasons for
not pursuing the domestic remedies available to her. However, it was
submitted on her behalf that a declaratory order will be granted even
if some other form of relief is available. See Jansen
v AFC
1995 (1) ZLR 63 (H)…,.
In
Jansen
v AFC
1995 (1) ZLR 63 (H) the point was also made that the merits of each
case constitute one of the circumstances of the matter to which
regard must be paid before a declaratory order is issued.
In
casu,
the applicant seeks a declaratory order to the effect that she is
entitled to an un-restricted practicing certificate.
The
nature of the relief being sought by the applicant is such that she
is asking me to substitute my own decision for that of the first
respondent.
It
has been held in these courts that a court will not interfere in the
sphere of practical administration. See Director
of Civil Aviation v Hall
1990 (2) 354 (S)…,. There are issues which, in my view, can best be
revolved by the administrative structure provided for in the Health
Professions Act.
In
my view, there are disputes of fact which this court cannot resolve.
They
would require the expertise provided for in the Health Professions
Act. In paragraph 13 to her founding affidavit the applicant disputes
that she remains registered on the provisional register of medical
practitioners. She refers to annexure C to disprove the respondents
averments.
This
court cannot say whether registration on the specialist register is
the same as registration on the permanent register. The court does
not know what to do with the fact that during the period of the
applicant's initial registration on the provisional register, she
was absent without leave for a certain period. Such issues can best
be dealt with by the domestic remedies provided for in the Health
Professions Act.
In
view of the above, I am not able to grant to the applicant the relief
that she seeks. The Health Professions Authority is capable of
providing effective redress in respect of the applicant's
complaint. She ought to have exhausted the domestic remedies
available to her under the domestic legislation.
In
the result, the point in
limine
is upheld.
Accordingly,
the application is dismissed with costs.
