REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

         ……………………..	………………… 
              DATE	                  SIGNATURE

CASE NO: 69766/11

 In the matter between:-

THE SOUTH AFRICAN DENTAL ASSOCIATION NPC  	Applicant          

and

THE MINISTER OF HEALTH			              First Respondent
THE HEALTH PROFESSIONS COUNCIL 
OF SOUTH AFRICA                                                      Second Respondent
THE CHAIRPERSON OF THE PROFSSIONAL BOARD
FOR DENTAL THERAPHY AND ORAL HYGIENE      Third Respondent 

THE DENTAL ASSISTANTS ASSOCIATION
OF SOUTH AFRICA                                                       Fourth respondent 

      
                                     
                                           J U D G M E N T 

Ismail J:

[1]	This is an application wherein the applicant seeks an order in terms 
of Rule 53 of the uniform Rules of court for the review and setting aside 
seven ministerial regulations, regulating the profession of Dental 
Assistants. These regulations were promulgated in terms of the provisions 
of the Health Professional Act 1974 [The HPA]. 

[2]	The fourth respondent is joined in this matter by virtue of 
Mavundla J provisionally ordering the fourth respondent to be joined in the
matter. The learned judge ordered the court hearing the application should determine, whether or not fourth respondent should have standing in this matter. This aspect would be dealt with further on in this judgment.

[3]	In the course of this judgment the applicant  
would be referred to by either as the applicant or by the acronym SADA;  
and the fourth respondent as such or DAASA. The first respondent would be referred to as such or as the Minister; the 2nd respondent as such or the  Council; and  the third respondent as such or as the Board.

[4]	In the founding affidavit the deponent Margaretha J Smit stated:
“This founding affidavit is filed in support of an application and principle at reviewing and setting aside certain decisions taken and administrative action performed by the Minister of Health, who is the first respondent in this proceedings, which decisions are ultra vires the powers of the Minister or are otherwise unlawful in terms of the provisions of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) or the Constitution of South Africa, 1996 (“the Constitution”) “  

The applicant contends that there are five regulations which are impugned 
in this application. These regulations are as follows:-

 4.1	Regulations published as government Notice 338, dated 16 April 
         2005, as amended by Government Notice R580, dated 30 May 2008
-	referred to as the “Original Qualification Regulations”

4.2	regulations published in Government Gazette 31633, dated 28 
November 2008 – referred to as “ the Board regulations”

4.3	 Regulations Relating to the Qualifications for Registration of dental 
 Assistants, Amendment, published in Government Gazette number
 35046 on 14 February 2012. – referred to as “the revised
 Qualification Regulations”   

4.4	Regulations Relating to the Qualification for Registration of Student 
Dental Assistants Amendment published as government notice R395 
In government Gazette number 35363 o 21 May 2012 – referred to as
“ Student qualification Regulations ”
  
4.5	Regulations Defining the Scope of the Profession of Dental
         Assistants published as government Notice R396 in Government 
Gazette number 35364 on 21 May 2012 – referred to as “the Scope
Regulation”. 			 

[5]	The applicant in its papers avers that the during April 2005 and 
purportedly acting in terms of the Health Professional Act 56 of 1974 (“the 
HPA”) the Minister promulgated regulations (“the Qualifying Regulations”) 
purporting to set out the qualifications required for registration as a dental 
assistant, with second respondent, the Health Professional Council of 
South Africa (“the HPCSA”). The qualifying Regulations were ultra vires the 
provisions of the HPA because it purported to stipulate the qualification for 
registration as a dental assistant in circumstances in which dental 
assistants did not, prior to the promulgation of the Qualifying Regulations, 
form part of any health profession or registration category. 

[6]	The applicant in its notice further prays that during November 2008, 
the Minister promulgated regulations pursuant to section 15 of the HPA 
(“ the Board Regulation”) in terms of which the Minister purported to 
constitute a professional board that included dental assistants. This was 
done:
1.	In circumstances in which no health profession for dental assistants 

existed; or

2.	only the qualifying Regulations were promulgated.

[7]	The applicant is of the view that the Board Regulations were like the 
Qualifying Regulations which preceded them, ultra vires the provisions of 
the HPA.

[8]   The HPA is the bedrock and foundational piece of legislation which
governs the conduct of professional activities within the health care sector  
in this country. 
 
Section 1 of the HPA defines a health professions as:
“ any profession for which a professional board has been established in 
terms of section 15.” 

[9]	Section 15(1) permit the Minister to establish a professional board 
in respect of a health profession, however a health profession exist only if 
a professional board is established. The applicant submitted that in addition 
to the requirement that a professional board being established prior to a 
health profession being constituted, such a health profession should also 
be registrable in terms of the HPA. This is governed by section 17 of the 
HPA. Such registration with the HPCSA is a prerequisite for practising as a 
registered or registrable profession in the Republic..    

[10]	Mr Leech SC acting for the applicant submitted that this application 
was founded on the principle of legality and that the regulations referred to 
in para [3] above, were ultra vires the provisions of the Health Professions 
Act. In the event it is found that provisions of the various regulations are 
inconsistent with the principle of legality the court would be obliged in terms 
of section 172(1)(a) of the Constitution to declare the regulations as being 
invalid.  

[11]	The applicant submitted that the Minister did not have the powers in
terms of the HPA to make the regulations which he/she made and 
furthermore in so far as the Board regulations and Original Qualification 
are concerned they were promulgated without due consideration by the 
First Respondent .

 Qualification Regulations in terms of section 61 (1) read with sections 24 
and 25 of the HPA. When that was done the HPA had not been amended.
Section 24 reads as follows:  
“ The minister may, on recommendation of council, prescribe qualifications obtained by 
virtue of examinations conducted by a university, a technikon or other examining 
authority in the Republic ,which, when held singly or conjointly with any other 
qualification, shall entitle any holder thereof to registration in terms of the Act if he or 
she has, before or in connection with or after acquisition of the qualification in question, 
complied with such conditions or requirements as may be prescribed.”

The applicant submitted that the Minister was entitled under this section to 
prescribe qualifications which would permit the holder of the qualification to 
register in terms of the Act.  This presupposes that there was a register for 
dental assistants at that time. The applicant argued firstly that there was  
no register for dental assistants and secondly that the Board of Dental 
Therapy and Oral Hygiene regulated only that profession and finally there
 was no dental assistant on that Board at that time.

Section 24 entitles and prescribes registration of a person to register,
however, there was no register at the time. The First Respondent’s power 
to prescribe such qualifications in terms of section 24 in order to recognise 
a profession for dental assistants required  registration and therefore a 
register was required.  
Up to that stage, i.e. the promulgation of the Qualifying Regulations, dental 
assistants did not require formal qualifications and the majority of them 
obtained training whilst being employed by dentists. Accordingly the 
applicant argued that the first respondent did not have the power to 
prescribe qualifications for registration as dental assistants where the Act 
was silent and contained no requirement for registration.

[12]	The first respondent avers that during April 2000, the Board 
recommended and the council resolved to establish a register for dental 
assistants in terms of section 18(1). The applicant contended that to 
recommend and resolve does not imply that it was actually done. To this 
end the applicant’s argued that the Council and the Board in their own 
affidavits suggested that as at 9 April 2001 no register was created or existed. 

[13]	The applicant also submitted that at no point prior to the promulgation 
of the Board regulations had the Minister established a profession for
dental assistants or extended the Board’s powers to regulate the activities 
of dental assistants. This the applicant avers was neither challenged nor 
contradicted  by the Minister in his second affidavit. It was submitted that
Minister could in terms of section 15 of the Act only constitute a Board for a 
Health profession registrable under the Act. For that reason the board 
regulations also fall to be set aside. 

[14]  During 2012 the Minister promulgated regulations namely the revised
Qualification Regulations and the Student Qualification Regulations and the 
Scope Regulations. These regulations fall in a different category as counsel
for the Minister  argued that the application should fall to be dismissed as 
the challenge was brought in terms of Legality regarding the Board
Regulations and the Original Qualification regulations. Mr Maenetje SC 
submitted that where the provisions of The  Promotion of Administrative 
Justice Act 3 of 2000 [“ PAJA”] applies it should be involved to challenge 
administrative actions.

[15]   The preamble of PAJA reads:
WHEREAS section 33 (1) and (2) of the Constitution provides that 
everyone has the right to administrative action that is lawful, reasonable 
and procedurally fair and that everyone whose rights have been adversely 
affected by administrative action have the right to be given written reasons:

AND WHEREAS section 33 (3) of the Constitution requires national 
legislation to be enacted to give effect to those rights, and to-
•	 provide for review of administrative action by a court or, where 

appropriate , an independent and impartial tribunal;

•	impose a duty on the state to give effect to those rights; and

•	promote an efficient administration.

The first respondent’s counsel submitted that where PAJA applied a party
did not have an election or choice whether to proceed in terms of PAJA 
or to proceed in terms of the Constitution. Mr Leech on the other hand 
submitted that a party always has a right to proceed against impugned 
legislation on the ground of Legality and is not restricted to PAJA.
 
The argument advanced by the first and fourth respondents was that
judicial review in terms of section 6 (2)(a)(i) of PAJA must be brought in 
terms of section 7, which should be instituted within a reasonable time and 
not later than 180 days after the date. DAASA in its affidavit raised the 
point that PAJA applied and that the applicant was out of time and 
notwithstanding the point raised by it no  application for condonation 
was brought.

[16]	If that argument is upheld it would mean that the application 
regarding the Original Qualification Regulation and Board Regulations 
should be dismissed. It is common cause between the parties that the 
Minister’s actions in this matter related to an administrative function 
and therefore PAJA applied. The crisp question to be determined is 
whether  an administrative act can be attacked on the grounds of 
legality in preference to PAJA. If so it would affords a party an option to 
proceed by that means or in terms of PAJA. 
 
Mr Leech submitted that a challenge in term of the principle of legality 
can be brought at any time.  Whereas PAJA has time restrictions (which 
can be extended). 

[17]	Mr Maenetje SC submitted that the application in respect of the pre-
2012 regulations should fall and be dismissed due to the unreasonable 
delay in launching the application. He contended that once PAJA applied, 
the review application cannot be decided without reference to it. – Bato 
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 
(4) SA 490 (CC) para [26] where O Regan J stated. 
“ In these circumstances, it is clear that PAJA is of application to the case and the case 
cannot be decided without reference to it. To the extent, therefore, that neither the High 
Court nor the SCA considered the claim made by the applicant in the context of PAJA, 
they erred. Although the applicant did not directly rely upon the provisions of PAJA in its 
notice of motion or founding affidavit, it has in its further written arguments identified 
the provisions of PAJA upon which it now relies.”      

[18]	Counsel for the Minister submitted that the principle of legality, on 
which the applicant pins its case, i.e. the ultra vires issue, extends only to
whether the Minister had powers to make the regulations. This question
whether the Minister took all the relevant considerations into account and 
whether he/she acted procedurally fairly, is one that is governed by 
PAJA. 

[19]	The first respondent’s counsel furthermore submitted that even if the 
applicant is found to be correct that it is entitled to bring the review on the 
ground of legality at any time it wishes to do so the application is not 
properly before court because it concerns aspects that are squarely 
governed by PAJA.   
This argument clearly implied that a party does not have an election to 
choose to bring a legality review where PAJA applies. He relied upon the 
matter of Opposition to Urban Tolling Alliance and Others v The South 
African Roads Agency Limited and Others a Judgment of Brand JA in the 
Supreme Court of Appeal under case number 90/2013 particularly at para 
[36] and [38].
 “[36] the fourth basis invoked by the appellants as to why the 180 day time bar should 
be extended  was that it was the requirement of the rule of law that the exercise of all 
public power should be lawful and that SANRAL and the government has failed to act 
legally. As I see it, however, the argument is misconceived. While it is true that the 
principle of legality is constitutionally entrenched, the constitutional enjoinder to fair
administrative action, as it has been expressed through PAJA expressly recognises that 
even unlawful administrative action may be rendered unassailable to delay.”
 
[20]  Further on at para [38] the learned judge continued;
“ [38] However, the passage in Oudekrall upon which the appellants rely is authority for 
the contrary. The passage makes clear that, unless an invalid administrative act is set 
aside by a competent court, it is regarded as valid for the purposes of consequent acts. 
This is supported by the following statement in the unanimous judgment by the
Constitutional Court in Camps Bay Ratepayers’ & Residents’ Association and another v 
Harrison and another 2011 (4) SA 42 (CC) at para 62:
‘As was explained in Oudekrall estates (Pty) Ltd v City of Cape Town and others [par 31] 
administrative decisions are often built on supposition that previous decisions were validly taken 
and unless that previous decision is challenged and set aside by a competent court , its 
substantive validity is accepted as a fact. Whether or not it was indeed valid is of no 
consequence.”    

[21]	The argument advanced by applicant’s counsel was that the 
applicant could not attack the minister’s promulgation of the regulations 
until the regulation was enacted, whereby it made it an offence for dental 
assistant not to be registered, and equally made it an offence to hire them 
in the absence of registration. This argument in my view is based on 
convenience and  one which was aimed at taking issue with the regulations
at the latest possible time, hence the attack is launched in terms of section 
33 of the Constitution and not in terms of PAJA. Even if the applicant is 
correct that Promulgation of criminal sanctions motivated it to seek a review 
it could have brought the application in term of PAJA, and if the 180 day 
period had lapsed condonation could have been sought or the 
opposite party could have been approached for time extensions. It is only 
when the shoe pinched and registration become a requirement, on its 
version, that the applicant reacted. Notwithstanding the so called ‘illegality’ 
of the earlier regulations which for years were not challenged. 

[22]	 The time delay in launching the application in my view is a 
consideration which this court cannot ignore. The Minister, Council and 
Board have for years, approximately 15 years, been trying to regulate 
dental assistants. This process also involved the participation of the 
applicant in the regulation of the ‘profession’ as they were important role 
players. Dental assistants have been in limbo throughout this period and 
are anxious to know whether their work would be regulated or not. To this 
end DAASA seeks a counter application wherein the Minister is ordered to 
continue with legislation regulating dental assistants.

[23]	Counsel for the second and third respondents submitted that the
applicant raised no objections, including in November 2008 questioning the 
legality of the board’s regulatory power over the professional activities of
the dental assistants profession. 
Furthermore, the issue of a register which the applicant relied upon had not 
been in existence on it’s own version until April 2001 and the applicant did 
not raise this issue until it launched the application during December 2011.
It is submitted that in 2001 the applicant supported the establishment of a 
register for dental assistants. The applicant now argues that at the time the 
2005 and 2008 regulations were promulgated no register for dental 
assistants was in place and hence the impugned regulations should be set 
aside.

[24]	Miss Mkwanazi acting for the second and third respondents 
submitted that the procedure followed prior to the promulgation of the 
relevant regulations was the notice and comment procedure. There was no 
obligation on the part of the administrator to respond to each and every 
comment or consideration received by it. All that was expected of the 
Minister was that the administrator was responsive to the comments 
received.

In this regard Prof Chitke, the Chairperson of the task team, made the 
point to the applicant’s Vice president and its representatives on the task 
team that:
“ .. SADA was regarded as a very important stakeholder to assist it the successful 
implementation of dental assistants registration... The Task Team expected robust interaction 
with SADA, but on the basis of participation, as the board had no intention to deviate to 
professionalise dental assistants”  (2 nd and  3rd respondents Answering affidavit TEM 16). 

[25]	The applicant’s launching of this application at this late stage, after 
three ministers , had  endeavoured  to regulate the profession is 
opportunistic and the court has to ask itself what prejudice would there be 
to the applicant other than possible financial implications to them. I have 
not dealt with the aspect of the fourth respondents status in this 
application, however, I will revert to this aspect when I deal with DAASA 
hereunder.

[26]	In Bengwenyama Minerals v Genorah Rresources 2011 (4) SA 113 at 
138A para [61] Froneman J refers to Zondi v MEC for Traditional Local 
Government Affairs and others 2005 (3) SA 589 (CC) where Ngcobo J 
stated: 
“ PAJA was enacted pursuant to the provisions of s 33, which requires the enactment of 
national legislation to give effect to the right of administrative action. PAJA therefore 
governs the exercise of administrative action in general. All decision-makers who are 
entrusted with the authority to make administrative decisions by any statute are 
therefore required to do so in a manner that is consistent with PAJA. The effect of this is 
that statutes that authorise administrative action must now be read together with PAJA
unless upon a proper construction, the provisions of the statutes in question are 
inconsistent with PAJA.”

[27] Chaskalson CJ in the Minister of Health v New Clicks SA (Pty) Ltd and 
others 2006 (2) SA 311 at para [92]-[97] dealt with the Constitution and 
PAJA. At para [93] the Chief justice stated the following:	
“[93] However I do not agree, with the approach adopted by both the majority of the 
High Court, and later the SCA, that notwithstanding the provisions of PAJA the 
regulations were subject to an independent review for lawfulness under s 33 of the 
Constitution.”	

In the same matter at para [97] the learned Chief Justice continued by stating:
“[97] Professor Hoexter sums up the relationships between PAJA, the 
Constitution and the common law, as follows:
‘The principle of legality clearly provides a much-needed safety net when PAJA does 
not apply. However, the Act cannot simply be circumvented by resorting directly to the 
constitutional rights. (The PAJA itself can of course be measured against the 
constitutional rights, but that is not the same thing.) nor is it possible to sidestep the Act 
by resorting to the common law. This too is logical, since statute inevitably dispose 
rights of the Act, but it cannot be regarded as an alternative to the Act.”

Dental  Assistants Association of South Africa [DASSA]

[28]	DAASA seeks leave to intervene in this application. It was not 
originally cited as a party to the application. DAASA was provisionally 
granted leave to be joined in this matter, see para [2] above.

[29]	The applicant challenges the locus standi of the DAASA and it avers
that this organization does not have the power to sue or be sued. It is an
unincorporated voluntary association established in terms of its 
constitution. DAASA’s constitution does not authorize it to be a litigant in 
proceedings. To this end the applicant relied upon the matters of South
African Optometric Association v Frames Distributors Ltd t/a Frames 
Unlimited 1985 (3) SA 100 (O) 104B.- where the court held that the interest 
was at best an indirect interest. 

[30]	DAASA on the other hand argued that it exist since 1983 and that 
it has a membership of approximately 3 000 dental assistants. It
seeks leave to join this application in order to advance, protect and 
promote the interest of dental assistants and also the public interest. It was 
submitted on its behalf that DAASA has a direct and substantial interest in 
the matter. It seeks to uphold the its members rights to just administrative 
action and that it also seeks to uphold their rights to dignity and equality 
with recognition to a regulated profession. This matter concerns the 
exercise of public power and therefore is a Constitutional issue. 
It was submitted that the court should exercise a wider approach of the 
rules relating to locus standi in the constitutional era and that the fourth 
respondent should be permitted to participate in these proceedings.- see 
Rail Commuters Association Group v Transnet Ltd 2005 (2) SA 350 CC.
It avers that it has a direct and substantial interest in the matter and that it 
may be prejudicially affected by the courts judgment. It relied upon the 
dictum of Amalgamated Engineering  Union v Minister of Labour 1949(3) 
SA 637 (A) at 657 where the court held that it may mero motu join such a 
party.

[31]	Counsel for DAASA submitted that in view of the active involvement 
of the fourth respondent in the process leading up to the promulgation of 
the impugned regulations,  SADA ought to have joined DAASA as  a party 
to the dispute at the outset of these proceedings.

[32]	If this court were to make a ruling that DAASA does not have locus 
standi thereby non suiting its participation in these proceedings it would 
thereby silence the voice of an organization which has a membership of at 
least 3 000 dental assistants affiliated to it. In keeping with the 
constitutional ethos that the constitution should embody the spirit of an 
open an democratic society, I believe that to stifle the views of an 
organization which has some bearing on an issue and more particularly 
where it represents  a substantial number of people would not be tenable, 
particularly where it concerns a public law issue. 

[33 ]	Mr Jansen on behalf of DAASA relied upon the decision of 
Pharmaceutical Manufacturers  of SA: In  Re Ex parte president of the 
Republic of South Africa 2000 (2) SA at para [36] of the judgment where 
Chaskalson P stated:
“The prerogative is a doctrine of English law and, as the Appellant Division pointed out 
in Sachs v Donges NO, questions concerning the prerogative were governed in South 
Africa by principles of English law. Lord Denning has described the prerogative as
‘a discretionary power exercisable by the executive government for the public good, in 
certain spheres of governmental activity for which the law has made no provisions 
….The law does not interfere with the proper exercise of the discretion by the executive 
in those situations; but it can set limits by defining the bounds of the activity; and it can 
intervene if the discretion is exercised improperly or mistakenly. That is a fundamental 
principle of our constitution.”

[34]	SADA also raised the point that if the court were to permit DAASA to
be joined to these proceedings then it should determine whether it should 
condone DAASA’s late filing of its answering affidavit. The affidavit 
ought to have been filed by the 25 January 2013, however it was only done 
two weeks thereafter.  It is not necessary for the purposes of this judgment 
to state the reason for the delay save to say that I considered the reasons 
raised in the heads of argument and in the papers. In any event the papers 
were filed on the same day as the review papers and DAASA accordingly 
submitted that there was no prejudice to the applicant.

[35]	When the court is to determine whether condonation should be 
granted or refused the court is guided by the judgment of Malane v 
Santam Insurance Company Limited 1962 (4) SA 531 at 532 C-E where 
Holmes JA stated: 
“ In deciding whether sufficient cause has been shown, the basic principle is that the 
Court has a discretion to be exercised judicially upon a consideration of all the facts, 
and in essence it is a matter of fairness to both sides. Among the facts usually relevant 
are the degree of lateness, the explanation therefore, the prospects of success, and the 
importance of the case. Ordinarily the facts are interrelated; they are not individually 
decisive, for that would be a piecemeal approach incompatible with a true discretion, 
save of course if there are no prospects of success there would be no point in granting 
condonation.. “

[36]	In its papers DAASA expressed the view that the applicant has not
made out a case to set aside the impugned regulations. In support of this 
contention it avers that the applicant cannot avoid the provisions of section 
7 of PAJA by submitting that its challenge is based on the principle of 
legality and not on the bases of PAJA. In this regard  DAASA relied upon 
Hoexters, Administrative Law in South Africa 2nd edition Juta at p134.
DAASA argued that by allowing a litigant to bypass PAJA altogether It 
would frustrate the constitutional and legislative scheme providing for the 
review of administrative action.

[37]  To this end DAASA contended that administrative action must be 
challenged within a reasonable time, but no later than 180 days as 
stipulated by PAJA.  The argument is further advanced by stating that the 
applicant only brought this review application during December 2011, six 
years after the 2005 regulations promulgated and three years  after the
2008 regulations. 

[38]	DAASA contended that the applicant should have made out a case 
for condonation, but despite it raising this aspect in their response,the 
applicant simply elected not to do so. This aspect, namely the failure of the 
applicant to seek condonation, was also raised by Adv Maenetje SC when 
he addressed the court. It was submitted on behalf of both the first and 
fourth respondents that the failure to seek condonation was fatal and that 
on this ground  alone the application should be dismissed.

[39]	The applicant brought the application for review premised on the 
principle of legality. It was submitted on the applicant’s behalf that an attack 
on administrative action based on the principle of legality could be brought 
at any time. I am inclined to agree with the first and fourth respondents 
argument that this is not so. See New Clicks referred to at para [26] above.

[40]	In my view the applicant should have brought this application in terms 
of the provisions of PAJA and in doing so it ought to have applied for 
condonation. The failure of the applicant to do so was fatal. This application 
premised on legality was brought more than ten years after it was decided 
to regulate and create a profession for dental assistant.

In view of the time delay the applicant brought the action in terms of the 
principle of legality as opposed to PAJA. However the applicant contends 
that its attack in terms of Relating to the Qualifications for Registration of 
dental assistants, Amendment, published in Government Gazette number
35046 on 14 February 2012. – referred to as “the revised Qualification 
Regulations”   and the Scope of the Profession of Dental  Assistants 
published as government Notice R396 in Government Gazette number 
35364 on 21 May 2012 – referred to as “the Scope Regulation” is not out of 
time and that those regulations ought to be reviewed in terms of PAJA.

[41]	DAASA instituted a conditional counter-claim whereby it seeks an 
order that the Minister should proceed to take the necessary steps to cure 
the defects so that the Dental Assistant may be regulated in a lawful 
manner.

[42]	DAASA also submitted that in the event that the Minister acted 
irregularly the court should exercise its discretion not to set aside the 
promulgated regulations and that the court should rather order the Minister 
to cure the defects.
In this regard I dealt with this aspect above at para [25]. See 
Bengwenyama Minerals v Genorah Resources 2011 (4) SA 113 the court 
exercised its discretion in favour of prejudiced parties.

[43]	The applicant submitted that the Minister was not entitled to 
promulgate the Scope and Board regulations in the absence of a Register 
for Dental Assistance. In my view this raises the issue of what came first 
the chicken or the egg. Mr Maenetje argued that the sequence within which 
things were done may not have been orderly; however, the court should 
ultimately ask itself whether things were done albeit not in proper 
sequence.

It is clear that the register was only effected in 2001 after the promulgation 
of the two regulations namely the Scope and the Board.

The applicant argued that the register had to be created in order for a 
profession to be created. However, by 2001 the register had been created 
and no proceedings were brought to set aside the promulgations of the 
impugned regulations. The argument advanced on behalf of the applicant 
that the was no need to create a profession for dental assistants, as for 
decades dental assistants were trained and worked under the supervision  
of dentists and therefore the scope regulations were unnecessary.
Whilst it is true that this was the traditional manner in which dental 
assistants operated in the past and presently It does not necessary follow 
that this method should continue ad infinitum.  We live in a modern age 
were people need to be scientifically trained and the skills should be 
enhanced in most facets of life. It appears that SADA is averse to change 
and moving into a new era, and they do not desire dental assistance to be 
regulated or professionalised.

[44]	The time delay aspect has been dealt with above, see Oudekrall 
Estates (Pty) Ltd v City of Cape Town and others [par 31] and the New 
Clicks matter, supra.

[45]	I am of the considered view that the prejudice dental assistants would 
suffer if the regulations were set aside far outweighs any defects which 
might exists in the promulgation of the regulations.

[46]	I would recommend that the Minister continues with his regulations in 
furtherance of the legislation regarding dental assistants, however, the 
Minister should afford the parties a two year moratorium period before the 
failure to register as dental assistants  would be met with criminal 
sanctions. This recommendation would equally apply to hiring dental 
assistants, by dentists, who are not registered during the moratorium 
period.

[47]	Accordingly I make the following order:
(1)	The application is dismissed
(2)	The fourth respondent is joined to this proceedings and its application for condonation is granted.
(3)	The applicant is ordered to pay the costs of the respondents.

______________
Ismail, J

APPERANCES:

For the applicant		                  Adv Leech SC and Ms K Hofmeyer
                                                       Instructed by: Werksmans Attorneys, c/o
                                                       Edelstein- Bosman Inc, Pretoria

For the First Respondent:	        Adv Maenetja SC instructed by the State    
                                                      Attorney, Pretoria

For the 2nd and 3rd Respondents:	Adv T Mkhwanazi, instructed by Moduka
                                                        Attorneys, Pretoria	
For the Fourth Respondent:		Adv R Jansen  and adv G Snyman