THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 835/2022
In the matter between:

SOUTH AFRICAN NURSING COUNCIL
APPELLANT

and

KHANYISA NURSING SCHOOL (PTY) LTD

FIRST RESPONDENT

MINISTER OF HEALTH
SECOND RESPONDENT

Neutral citation: South African Nursing Council v Khanyisa Nursing School (Pty)
Ltd and Another (835/2022) [2023] ZASCA 86 (2 June 2023)
Coram:
DAMBUZA ADP, GORVEN and MEYER JJA and DAFFUE
and UNTERHALTER AJJA
Heard:

2 May 2023
Delivered:
This judgment was handed down electronically by circulation to
the parties’ representatives by email, publication on the Supreme
Court of Appeal website, and release to SAFLII. The date for
hand down is deemed to be 2 June 2023 at 11h00.

Summary:
Interpretation of regulations – meaning of any calendar year in
the definition of an academic year – regulations to accredit programmes in terms of
the Nursing Act 33 of 2005 – use of dictionaries to attribute meaning – meaning that
is functionally satisfactory – meaning within the context of the vocational training
of nurses.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Ndlokovane AJ,
sitting as the court of first instance):
The appeal is dismissed with costs, including the costs of two counsel.

JUDGMENT

Unterhalter AJA (Dambuza ADP, Gorven and Meyer JJA and Daffue AJA
concurring):

Introduction
[1] The first respondent, Khanyisa Nursing School (Pty) Ltd (Khanyisa), has for
many years been accredited to train nurses. Khanyisa does so from its main campus
in Johannesburg, and from campuses in other parts of the country. The appellant, the
South African Nursing Council (the Council), was established in 1978. It derives its
statutory powers from the Nursing Act 33 of 2005 (the Act). The Council’s objects
include the establishment of standards for nursing education and training within the
ambit of the Act.

[2] Khanyisa applied to the Council for accreditation to offer two nursing
programmes: a diploma in nursing in the category ‘general nurse’; and a higher
certificate in nursing in the category ‘auxiliary nurse’ (the programmes). The

approval of these applications was long delayed. On 26 April 2022, following a
decision of the Council taken at its meeting on 30-31 March 2022, the Council
notified Khanyisa that it had granted Khanyisa full accreditation to offer the
programmes at four of its campuses. The letters of accreditation sent by the Council
reflected the date of accreditation as 30-31 March 2022. This was made subject to a
stipulation, framed as follows: ‘the commencement date of the approved programme
should be at the beginning of the academic year 2023 . . .’. I shall refer to this as the
contested stipulation.

[3] The contested stipulation was not acceptable to Khanyisa. If Khanyisa could
have admitted students for the accredited programmes in May 2022, this would have
allowed sufficient time to permit students admitted to these programmes to complete
the programmes prior to the May 2023 board examinations. If Khanyisa was not
permitted to do so, and was required to commence the programmes at the beginning
of the following year, in 2023, this would be financially detrimental to it. Khanyisa’s
attorneys wrote to the Council. Khanyisa complained that the contested stipulation
was unlawful. It sought urgent confirmation that it could commence its first intake
in May 2022, failing which, Khanyisa would approach the courts on an urgent basis.

[4] The Council was unmoved. It replied that the Council could not accede to
Khanyisa’s request because the Council was functus officio. Khanyisa then brought
an urgent application in the Gauteng Division of the High Court, Pretoria (the high
court) to review and set aside the accreditations, and, in essence, to order the Council
to grant Khanyisa the accreditations, shorn of the contested stipulation. The review
was predicated upon the proposition that the Council lacked the power to impose the
contested stipulation, but if it did not, the contested stipulation was in any event an
imposition that is arbitrary, capricious and unlawful.

[5] The high court (per Ndlokovane AJ) found that, in terms of the regulations
promulgated under the Act, the accreditation of the programmes required that 44
weeks of training must be completed within an academic year, which is defined to
mean within a calendar year. A calendar year means ‘a conventional calendar year’,
that is from January to December. This, the high court decided, did not conclude the
matter. The high court held that as the Council had on previous occasions granted
accreditation for programmes to commence in the middle of the year, Khanyisa had
a legitimate expectation that the Council would accredit Khanyisa’s programmes to
commence on or before 4 July 2022. The Council, the high court reasoned, had
unreasonably delayed the accreditation of Khanyisa’s programmes. The high court
declared that Khanyisa was permitted to commence the programmes on or before 4
July 2022, and ordered the Council to give full accreditation to Khanyisa to offer the
programmes on this basis. The high court also ordered the Council to pay Khanyisa’s
costs, including the costs of two counsel, on the scale as between attorney and client.
The high court considered that the Council’s dilatory conduct in accrediting the
programmes, when access to education is of such importance to the health care
system, warranted the imposition of a punitive costs order. Aggrieved by the
decision, the Council sought leave to appeal, which the high court granted.

Issues
[6] The appeal turns on two issues. First, under the regulations that are of
application to the accreditation of the programmes, an academic year is defined by
reference to ‘any calendar year’. The question therefore is this: Does any calendar
year mean a year from 1 January to 31 December? And if it does, was the Council
required to attach the contested stipulation to its accreditation of the programmes?
If the Council was so required, then the contested stipulation was lawful. That
conclusion would then give rise to a second issue. Did Khanyisa nevertheless enjoy

a legitimate expectation to commence the programmes by the middle of 2022, given
the past conduct of the Council, which had permitted accreditation of like
programmes on the basis of commencement by the middle of a given year. This issue
engages legal questions of no small complexity. In particular, whether an unlawful
or ultra vires representation can found the basis of a substantive legitimate
expectation. I need only engage this second issue if the first issue is resolved in
favour of the Council.

The regulations: what is an academic year?
[7] Section 42 of the Act sets out the requirements for an institution, such as
Khanyisa, to conduct a nursing education and training programme. Khanyisa was
required to apply in writing to the Council for accreditation of the programmes. To
obtain accreditation, it had to submit information of the education and training
programmes to be provided, and indicate how it would meet the prescribed standards
and conditions for education and training.

[8] Section 58 of the Act empowers the Minister of Health (the second
respondent, who took no part in the proceedings) to make regulations, after
consultation with the Council. Among the matters in respect of which the Minister
may make regulations, two are here relevant. First, the Minister may determine the
qualifications and conditions to be complied with which entitle a person to register
to practise in one of the categories set out in s 31. This power is conferred in terms
of s 58(1)(f). Section 31 lists five categories of practitioner, among them, a staff
nurse and an auxiliary nurse. The programmes for which Khanyisa sought
accreditation were, as I have indicated, to train learner nurses to qualify as
practitioners in these two categories. Second, s 58(1)(g) gives the Minister the power
to make regulations so as to accredit institutions as nursing education institutions.

[9] The Minister has made regulations in terms of ss 58(1)(f) and (g). In terms of
s 58(1)(f), the Minister made regulations specifying the minimum requirements for
the education and training of a learner to register as an auxiliary nurse (regulation R
169 dated 8 March 2013)1 and as a staff nurse (regulation R 171 dated 8 March
2013)2. Regulation 5(3) of R 169 stipulates that the duration of the programme is
‘one (1) academic year of full-time study’. Regulation 5(3) of R 171 stipulates that
the duration of the programme is ‘three (3) academic years of full-time study’. The
difference of duration reflects the difference in the qualification. Both regulations
measure duration by reference to academic year(s) of full-time study. Both
regulations define an academic year as ‘a period of at least 44 weeks of learning in
any calendar year’.

[10] The Minister has also made regulations in terms of s 58(1)(g). Regulation R
173 of 8 March 20133 sets out the conditions for the accreditation of an institution
as a nursing education institution. Accreditation means the certification of an
institution, for a specified period, as a nursing education institution, with the capacity
to offer a prescribed nursing programme. Such programmes are those complying
with the Council’s prescribed accreditation requirements.

[11] Khanyisa applied for the accreditation of the programmes in terms of
regulations R 169 and R 171. This was done on 19 December 2014. After lengthy
engagements, the Council, at a meeting on 31 March 2022, decided to grant the
accreditation sought. The letters of accreditation were dated 26 April 2022. These

1 Regulations relating to the approval of and the minimum requirements for the education and training of a learner
leading to registration in the category Auxiliary Nurse, GN R169, GG 36230, 8 March 2013.
2 Regulations relating to the approval of and the minimum requirements for the education and training of a learner
leading to registration in the category Staff Nurse, GN R171, GG 36232, 8 March 2013.
3 Regulations relating to the accreditation of institutions as Nursing Education Institutions, GN R173, GG 36234, 8
March 2013.

letters stated that the Council was to issue certificates of accreditation in the
following terms (relevant for present purposes):
‘Type of accreditation: Full Accreditation
Date of accreditation: 30-31 March 2022, however, the commencement date of the approved
programme should be at the beginning of the academic year 2023 considering that the Nursing
Education Institution will now commence the process of marketing the accredited programme as
well as recruitment and selection process.
Duration of accreditation: Five (05) years
1 January 2023 – 31 December 2027.’
I have referred to this as the contested stipulation.

[12] Khanyisa objected to the contested stipulation. The contested stipulation
carried the consequence that Khanyisa could not commence the programmes and
offer them to students to enrol in 2022, and have these students write their
examinations in May 2023 (and thereby comply with the 44 weeks of learning
prescribed by the regulations). Rather, Khanyisa would have to await the start of
2023. This would not only cause Khanyisa financial harm, it would constrain the
training of nurses, when the country suffers from a shortage of qualified nurses.

[13] As I have recounted, the Council was unyielding. Khanyisa brought urgent
review proceedings to review and set aside the contested stipulation so as to enjoy
the accreditation of the programmes, shorn of the contested stipulation.

[14] It was common ground between counsel for the parties, who appeared before
us, that the question as to whether the Council had the power to impose the contested
stipulation turned upon the meaning to be attributed to the definition of an academic
year in regulations R 169 and R 171. I recall that these regulations defined an
academic year to mean ‘a period of at least 44 weeks of learning in any calendar

year’. If a calendar year means a year starting from 1 January and ending on 31
December, then the Council could (and indeed was obliged to) attach the contested
stipulation to the accreditation of the programmes because the academic year could
only commence, at the earliest, on 1 January 2023. If, however, a calendar year
means any one-year period, computed with greater flexibility, then the Council was
under no obligation to impose the contested stipulation and should not have done so.

[15] The principles that guide our approach to interpretation have often been
stated: interpretation is a unitary exercise that takes account of text, context and
purpose.4 Frequently, lawyers have recourse to dictionaries as the repository of the
ordinary meaning of words. This is often a good starting point. But the lawyer’s
reverence for dictionaries has limits. As this Court has observed, to stare blindly at
the words used seldom suffices to yield their meaning in a statute or contract.5
Dictionaries record the history of how (often disparate) language communities have
used words. There is no straightforward attribution of a dictionary meaning of a word
as the word’s ordinary meaning so as to construe a statute, subordinate legislation or
a contract. The dictionary meaning of a word will often give rise to further questions:
for whom is this the ordinary meaning, as used in which community? And the
different shades of meaning with which a word has been used, over time, quite often
lead to selectivity bias. That is to say, the interpreter chooses the dictionary meaning
that best suits the preferred outcome of the case, rather than the meaning that shows
the greatest fidelity to the meaning that best fits what has been written, given what
we know as to the institutional originator of the words, what the words are used for,
and the larger design of the instrument we are called upon to interpret.

4 Capitec Bank Holdings Ltd and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others [2021] ZASCA 99;
[2021] 3 All SA 647 (SCA); 2022 (1) SA 100 (SCA) para 25.
5 Plaaslike Oorgangsraad, Bronkhorstspruit v Senekal 2001 (3) SA 9 (SCA) at 18J-19A.

[16] The case before us well illustrates the risks of using dictionaries to make
simplistic attributions of meaning. Many dictionaries record that a calendar year is
a period of 365 or 366 days, starting on 1 January and ending on 31 December. In
many settings this makes sense. In other settings, this is not so. In astronomy, for
example, a calendar year is the time taken by the earth to make one revolution around
the sun. What a calendar year means depends upon the function the words are
intended to serve. Dictionary entries seldom yield uniform meanings. One reputable
dictionary includes this meaning of a calendar year: it is ‘a period of time equal in
length to that of the year in the calendar conventionally in use’.6 In an early judgment
of this Court, a calendar year was defined as the period from 1 January to 31
December.7 Commentary on the meaning of a calendar year has been less categoric.
The learned author of LAWSA writes that the meaning of a calendar year ‘is
ambiguous since it may mean one of the cyclical numbered years commencing on 1
January or similar period commencing on any date. What the term “calendar” seems
to convey is that the period in question is calculated, not by the enumeration of a
special number of days, but by fixing its effluxion by reference to the corresponding
date in the succeeding year’.8

[17] What then is the meaning of a calendar year which we find in the definition
of an academic year in regulations R 169 and R 171? The function of the definition
is to determine the duration of the programmes. In both regulations, regulation 5(3)
specifies the duration of the programme, and does so by reference to the number of
academic years of full-time study. How long is that? The definition of an academic
year tells us that an academic year means 44 weeks of learning. And then the

6 See for example in the Merriam-Webster Dictionary.
7 R v Close Settlement Corporation Ltd 1922 AD 294 at 301.
8 27 Lawsa 2 ed para 298.

question is this: 44 weeks of learning, bounded within what time period? The
definition goes on to state ‘in any calendar year’. That could mean within a period
in any year commencing 1 January and ending on 31 December. And that is what
the Council contends for. I am however disinclined to this interpretation, and for
these reasons.

[18] First, these regulations are concerned to specify the minimum requirements
necessary to train nurses in different categories of practice. The regulations thus treat
vocational training and the meaning of an academic year within this setting. There
is no reason to think that, in a modern era of vocational training, there is any
convention that requires an academic year to run from January to December. On the
contrary, there are very good reasons to suppose, as the founding affidavit reminds
us, that the shortage of qualified nurses requires flexibility as to the period within
which an academic year can run. Moreover, since vocational training requires
practical training in hospitals and other health care facilities, rigidity as to the time
period that may constitute an academic year is not indicated.

[19] Second, the function of the definition of an academic year is to demarcate the
period within which the minimum of 44 weeks of full-time study must take place.
The plain purpose of this demarcation is to ensure that the 44 weeks does not take
place over an indeterminate time period, but a calendar year. That function is met if
a calendar year means any year, reckoned from a starting month in a given year, and
ending a year hence. There is some modest textual support for this, as Khanyisa
submitted, by the use of the words ‘any calendar year’ rather than ‘a calendar year’.
But the textual nudge is subsumed by the altogether greater weight that would
attribute a meaning that is functionally satisfactory, while also allowing for
flexibility appropriate to vocational training.

[20] Third, the Minister made these regulations, as required by s 58 of the Act,
after consultation with the Council. Given that the regulations concern vocational
training, in a field of great national need, there is little reason to attribute to the
Minister an intention to determine that an academic year must take place within the
confines of 1 January to 31 December.

[21] This interpretation is strengthened by the following. The regulations were
made after consultation with the Council. The affidavits before us make it plain that
the Council has, over many years, accredited programmes that were permitted to
commence in an academic year that was not bounded by 1 January to 31 December.

[22] Of particular salience is the following conduct of the Council. On 22
November 2019, the Minister made regulations in terms of s 58(1)(f) to approve the
minimum requirements for the education and training of students to qualify in the
category of midwife (regulation No 1497).9 This regulation was made after
consultation with the Council. It contains much of what is to be found in R 169 and
R 171 (promulgated in 2013). In particular, regulation No 1497 specifies that the
duration of the programme is one academic year of full-time study. It defines an
academic year in identical terms to the definitions found in regulations R 169 and
171, that is ‘a period of at least 44 weeks of learning in any calendar year’. If the
Council, consulted by the Minister, had sought a change to the meaning of an
academic year in regulation No 1497 it would no doubt have raised this issue. There
is no evidence that it did so, and no change was made. The definition of an academic
year was retained. And, both before and after the promulgation of regulation No
1497, the Council continued to accredit programmes with a mid-year intake of

9 Regulations relating to the approval of and the minimum requirements for the education and training of a learner
leading to registration in the category midwife, GN 1497, GG 42849, 22 November 2019.

students. The Council has plainly conducted itself on the basis that an academic year,
and thus a calendar year, does not mean 1 January to 31 December.

[23] The conduct of the Council is by no means dispositive of what an academic
year must be taken to mean. The Council may have made these accreditations in
error. But their conduct is at least indicative of the fact that the vocational training
of nurses has not taken place under any convention that connotes an academic year
to mean 1 January to 31 December. And further, the Council, having been consulted
in the making of the regulations, did not understand the regulations to mean what it
now contends for.

[24] Fourth, the meaning of an academic year is informed by the timing of the
examinations. The examinations of students in the different categories of practice
have taken place in May. If the academic year must run for 44 weeks within the
period 1 January to 31 December, this would give rise to the wasteful consequence
that the teaching of certain programmes will end long before the examinations take
place. This would delay students obtaining their qualifications and their entry as
qualified practitioners into the health care system, where their services are in short
supply. The meaning of an academic year must be understood with practical
common sense, given the manner in which vocational training needs to be offered
and has been organised.

[25] For these reasons, I find that the meaning of ‘any calendar year’ in the
regulations means a period that runs from a date of commencement in any given year
and extends for 12 months from that date. Once that is so, the Council was not
required to impose the contested stipulation, and had no defensible reason to do so,
given the extensive time it had taken to decide upon the accreditation of the

programmes, and the evident need for the programmes to commence as soon as
possible after accreditation.

[26] I caution that this conclusion as to 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.

[27] Given my finding on the first issue in respect of the meaning of ‘any calendar
year’, I need not engage the second issue in respect of whether Khanyisa enjoyed a
legitimate expectation to commence the programmes by the middle of 2022 in light
of the past conduct of the Council.

[28] The order made by the high court is accordingly sustained, though for
different reasons. As to the costs order imposed by the high court, that order fell
within the high court’s discretion, the exercise of which does not warrant our
intervention.

[29] In the result, the following order is made:
The appeal is dismissed with costs, including the costs of two counsel.

__________________________
D N UNTERHALTER
ACTING JUDGE OF APPEAL

Appearances

For the appellant:
J A L Pretorius and R C Netsianda
Instructed by:
Maponya Incorporated, Pretoria

Phatshoane Henney Attorneys, Bloemfontein

For the respondents:
E van As and A Basson
Instructed by:

JJ Jacobs Attorneys Incorporated, Pretoria

Pieter Skein Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
7June 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and
does not form part of the judgments of the Supreme Court of Appeal
Association for Voluntary Sterilization of South Africa v Standard Trust Limited and Others
(325/2022) [2023] ZASCA 87 (7June 2023)
Today, the Supreme Court of Appeal (SCA) dismissed an appeal with costs against the
judgment of the Western Cape Division of the High Court, Cape Town (the high court), which
dismissed an application for declaratory relief brought by the appellant, the Association for
Voluntary Sterilization of South Africa (AVSSA).

The declaratory relief sought by the appellant involved the interpretation of a clause in a will
executed by a Mr James Scratchley (the testator) on 16 May 1982 (the will). In terms of the
will, he bequeathed the residue of his estate to his administrators to be held in a testamentary
trust, the James Sivewright Scratchley Testamentary Trust (the trust). The first respondent,
Standard Trust Limited, was the sole trustee of the trust. In accordance with the testator’s
wishes, a committee was established comprising the Chairman of AVSSA, the Professor of
Gynaecology of the Medical Faculty at the University of Cape Town (UCT), the Medical Officer
of Health, Cape Town and the Dean of the Medical Faculty at UCT (the committee). The
second and third respondents, Professor Matjila NO and Associate Professor Green-
Thompson NO of UCT, along with the fourth respondent, Mr Edward Haynes-Smart of AVSSA,
made up the committee at the time of the case. AVSSA was a beneficiary of the trust. There
was disagreement amongst the members of the committee regarding the meaning of the word
‘planning’ in the phrase ‘Family Limitation and Planning’ in clause 4.3.2.1 of the testator’s will.
They were accordingly not in agreement as to who should benefit from the Trust. Before the
SCA, the appellant contended that the word ‘planning’ in clause 4.3.2.1 of the will referred to
the limiting of births, rather than the spacing and timing of births.

It was common cause that the relief sought in the appeal by AVSSA was not directed against
any decision taken by the committee. Thus, the SCA directed the Registrar to notify the parties
to be prepared to address the Court on the following matters: (i) would the judgment and order
sought on appeal have any practical effect or result as contemplated in s 16(2)(a) of the
Superior Courts Act 10 of 2013? (ii) whether the order to which the appellant confined itself
on appeal was not irredeemably vague?

The SCA found that the high court, having examined all the relevant facts, correctly declined
to grant the declaratory order sought by the appellant. Thus, the SCA found that it was not
simply at large to interfere with the discretion exercised by the high court.

The SCA found further that the appellant sought to attribute to the testator’s will an intention
equating the use of the word ‘planning’ to ‘limiting of births’, and not family planning in the
broader sense. The appellant accepted that its interpretation might have given rise to
tautology. The SCA found that the sum effect of what the appellant suggested was that it
should not merely interpret the will, but that it ought to put a red line through the relevant
provision and substitute in its stead the words ‘limiting of births’. That, the SCA found, would
not have been an interpretative exercise, but a recrafting of the will.

Thus, the SCA held that, in the circumstances, the high court could not be faulted for declining
to issue the declaratory order sought by the appellant.

~~~~ends~~~~