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The Constitutionality of SAQA’s Recognition Policy & Professional Regulation

The South African Qualifications Authority may find itself on the wrong end of the Constitution if its policy on the recognition of professional bodies is challenged.

In terms of SAQA’s policy, “Proliferation of professional bodies within the same community of practice will be discouraged, but will be balanced with the recognition that healthy competition and freedom of association should not be impeded.”

Accordingly, the policy allows for “cases where more than one professional body for a specific community of practice applies for recognition”, and applications will be considered along the following guidelines:

Where a Statutory Council exists

No additional professional bodies will be recognised by SAQA in a sector in which a professional body has been established through an Act of Parliament. These include, inter alia, the Legal Practice Board, The Health Professions Council, The various Councils for the Built Environment and the Estate Agency Affairs Board etc.

However, there are already a few professional bodies recognised in addition to these “Statutory Councils established by Acts of Parliament. And for a few professional communities, there are already more than one non-statutory body. It is evident that this policy statement is not enforced by SAQA, but if it should decide to do so, it could be challenged.

Court Orders?

A second and subsequent professional association can only be recognised if there is no legal impediment to the operation thereof. This legal impediment must take on the form of a judgment handed down by a competent court, and could only be limited to scope of specialisation, or where the name and purpose of the second body, infringes on the rights of the first. It is unlikely that a court will disallow open competition in the market, unless it is designed to deceive the public or to act against the Competition Act.

The professions may object?

The outcome of a broad consultation within the community of practice (the professional group) may determine the rejection of a second body, and the wider society may object if it is of the opinion that a second body will have adverse consequences on the community itself.

The distinctiveness of multiple bodies in the community of practice?

This sounds like something a money-lender will ask. What is your competitive advantage? What makes you different? But when it comes to a professional society, there are many other distinctive characteristics that could allow SAQA to recognise them.

If one only look at the Health profession, there are numerous specialisations as well as supplementary professions falling within the same professional group.

Where competition within a professional group is healthy, the battle for first position is likewise the same.  And when it comes to the survival of a professional society, it is all a numbers game. The bigger the numbers, the better the survival rate.

But a professional association’s longevity is pretty much up to the “benefits” it offers. In an exclusive society, the benefit of belonging outweighs any other options. But in a “catch-all” association, there are no benefits except for the association itself. Belonging to a “catch-all” association is pretty much like owning a knitted shopping bag. When the hype is over, the plastic shopping bag is king once more.

However, the Bill of Rights gives every South African the right to form an association as well as freedom of association. An organisation performing a public service can therefore not through a mere policy document, force an individual to belong to a specific association or body. And any claims made by an association that it is the “only” SAQA recognised body, is purely based on three aspects:

  1. There are no second body yet,
  2. There is a difference in its title or name,
  3. There is a difference in the field of specialisation within the same professional community.

SAQA itself is not infringing on the Bill of Rights as their policy allows for diversification within a community and it would be hard for it to exclude or deny an association unless it fails to meet the quality criteria set by SAQA.

But the truth is that some associations create the public perception that their members are the only “competent” group within a profession.

Big but still small

There are a number of associations that has tens of thousands of members, yet they remain relatively small when comparing their member numbers with the total number of professionals who they claim to represent. One such association is the Estate Agency Affairs Board – a Statutory Body established by an Act of Parliament. In November 2017 the media reported that the EAAB only represented 19 000 of the almost 70 000 property practitioners in South Africa. Their membership numbers also dwindled over the years. The EAAB refuted these “illegal” numbers, but failed to show their numbers on record. “The EAAB wishes to place it on record that these figures attributed to it are incorrect and has at no stage made such claims. These figures seem to emanate from a statement issued by PrivySeal (an EAAB Contractor) which had unfortunately not been requested, nor had this information been verified with the Board.” A press statement read.

In an attempt to rectify the operating of “illegal” practitioners, Parliament adopted the Property Practitioners Bill, which seeks to reform the profession. The Bill, which is making its rounds at the National Council of Provinces, is expected to be proclaimed in the last quarter of 2019.

The Bill also aims to extend the powers of the Regulator to non-registered persons.

More changes to come?

Another emerging profession going through the same motions as the property practitioners is the Occupational Health and Safety (Or just Safety) practitioners. With an estimated 175 000 practitioners operating within the “Occupational Safety” discipline, around 350 is represented by one association, while roughly 10 000 is represented by the association which added “and Health” to their name. And while the latter should not be confused with the “Health Practitioners” like doctors and nurses, the practitioners belonging to these two associations do pretty much the same job, day in and day out.

Other operating within the same field is Fire Engineers, Safety Engineers, Pressure Vessel Inspectors, Lifting Machine Inspectors and Lift & Escalator inspectors, mostly registered under the Engineering Council of South Africa.

It is clear that even the “big” associations only represent a small group of people within a professional community, each staking its own claim to fame.

And this allows us to draw the conclusion that there is no legislative restriction on the right of association or an individual’s freedom to start a professional association.

Freedom of Association vs the right to choose occupation or trade

The only restriction there might be, whether reasonable and justifiable or not, is the restriction to work within a specific profession. But this in itself may infringe on an individual’s right to choose his or her occupation. However, the limitation only extends that the profession itself, in that it may be regulated by law. It is common cause that a person entering a profession would be informed that there would be certain “rules and restrictions” when working as such a professional.

Having these rules and restrictions dumped on a person after working for a number of years without such restriction is certainly not within the spirit of the Bill of Rights.

Last year we reported on a High Court motion brought against the SACPCMP for infringing on the right to freely choose one’s occupation. The matter is still pending, and it is reported that the case has drawn the interest of the Legal Resource Centre.

At the crux of this case lies the retrospective nature of the regulation that permitted this limitation. Generally speaking, laws are not retrospective in nature, but it appears that a new form of legislative drafting has circumvented this principle and that the transition period allowed was impractical and optimistic.

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