PO Box Unit 4 Parade on Kloof Office Park 2047 BEDFORDVIEW 2007 TEL: FAX:

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1 SOUTH AFRICAN SOCIETY OF PHYSIOTHERAPY NPO VAT No: PO Box Unit 4 Parade on Kloof Office Park GARDENVIEW, JHB 1 The Parade, ORIEL 2047 BEDFORDVIEW 2007 TEL: FAX: info@saphysio.co.za 30 January 2017 UPDATE ON THE PROTECTION OF TITLE OF PHYSIOTHERAPIST/PY AND PHYSICAL THERAPIST/PY - CASE 16874/2013 Dear SASP members As you are already aware, protection of the titles Physiotherapy/Physical Therapy and Physiotherapist/Physical Therapist is not only statutorily protected under the REGULATIONS RELATING TO THE USE OF NAMES WHICH MAY NOT BE USED, published under Government Notice R2704 in Government Gazette 7953 of 11 December 1981 in terms of section 32 of the Health Professions Act of 1974, but also under section 34 of the same Act. This fact was re-confirmed in a letter from the Physiotherapy, Podiatry and Biokinetics (PPB) Board dated 26 July Furthermore, the titles have gained international recognition and prestige not only for members of the SASP, but also for more than Physiotherapists/Physical Therapists around the world. It is also well-known that the SASP has a number of special interest groups, one of which is the Animal Physiotherapy Group of South Africa (APGSA), members of which are physiotherapists with a special interest in the treatment of animals (Animal Physiotherapists). These therapists are qualified physiotherapists who then undertake further study, either by completing a Master s degree or CPD courses in the field of Animal Physiotherapy. Members will recall the AGM meeting held on 12 April 2013 where the SASP NEC was given a mandate by the membership to contest and protect the title PHYSIOTHERAPIST/PY through litigation in the Western Cape Division of the High Court in Cape Town. The initial amount allocated for this discourse was in the region of R (FIVE HUNDRED THOUSAND RAND), which was made available for this purpose. It appears that the matter will finally be adjudicated by the High Court during the course of 2017 as all the necessary Court papers have been prepared and filed. Inevitably, it is expected that legal costs will increase drastically to cover the legal costs for the necessary preparations and Court appearances, as our legal representatives advise that the trial may take no

2 less than 5 (FIVE) days, owing to the several expert witnesses to be called as well as the number of litigants already involved in the matter which started off only between 2 (TWO) parties. It is necessary to highlight that to date, more than R (ONE MILLION RAND) has been expended in ensuring that the title remains protected. The recommendation from the Finance Committee will be discussed at the GM on 10 March 2017 for the members approval. As a brief summary of the events leading to the litigation, a College in Plettenberg Bay, Equine Librium College (ELC), is currently providing training for any non-graduated person/s who are interested in the rehabilitation of animals, to qualify as Veterinary Physiotherapists. It has been established, by their own admission as well as in an affidavit by the South African Veterinary Council (SAVC) stated under oath, that the ELC has not been registered under the Higher Education Act, 1997 and that the qualifications the said college purports to offer are not registered and accredited with the South African Qualifications Authority as official qualifications. In this regard, a criminal case on charges of fraud laid by the SASP against the c+ollege is currently under investigation with the South African Police Service (SAPS) in Kwanokuthula under CAS 18/08/2013. Furthermore, a letter was sent to the Director-General of the Department of Higher Education and Training (DHET) on 16 July 2014, making the Department aware of the ELC s activities and seeking clarity on whether or not the qualifications offered by the college are registered. A response was received on 7 November 2014 from Mr Mabizela, Chief Director: University Policy and Development Support, indicating that they were aware of the illegal activities of the college. The DHET referred a criminal complaint of fraud against the College with the SAPS for contravening section 66 of the Higher Education Act The case was registered at the Pretoria Central Police Station, CAS 143/8/2014. What is of great concern, and detrimental to the progress of the criminal case, is the inability of not only the detectives in the Southern Cape, but the Commissioner of Police in the Western Cape, to handle a criminal matter of this magnitude adequately. Nevertheless, investigations are still ongoing and the last feedback from the office of the Public Prosecutor was that warning statements were being obtained from students registered with the college. Despite the SAVC being made aware of the illegal activities of the ELC it seems to ignore this fact and, as a matter of fact, actually supports the college in its illegal activities. Despite all our objections, the college still purports to qualify illegitimate practitioners as Veterinary Physiotherapists thereby passing off on the well-established and prestigious physiotherapy profession. It is a foregone conclusion that the first batch of students qualified during the course of 2014, and it is a major concern

3 that these so-called Veterinary Physiotherapists may apply for employment at qualified physiotherapy practices, which is illegal and against HPCSA rules, and to our knowledge some are also starting to work on humans. The SASP attorneys, Messrs Bouwer Cardona Inc., have been assisting us with legal advice and preparation of the court papers, which include pleadings, notices and affidavits applicable to the court case currently pending in the Western Cape High Court in Cape Town, due to the fact that the ELC is situated in this province. As the matter is drawing to a close, the costs involved have escalated tremendously since March 2016 when we appeared in court for the first time and, we anticipate, will continue to escalate as a result of the court appearances. The first court appearance was on 1 March 2016, and the matter had to be postponed to 30 May 2016 due to the legal team of ELC not having been prepared for the case, despite the fact that they had known about the date since November The costs of the said postponement will be awarded once the matter is finalised. On 25 May 2016, the SAVC applied for leave to intervene in the proceedings, which was granted by the court on 30 May 2016, pursuant to which the Minister of Agriculture, Forestry and Fisheries (Minister) was also joined as a party. After the SAVC and the Minister were joined to the action in terms of the court order, the pleadings as they were at that stage, were served on the SAVC and the Minister. In essence, what began as a dispute between 2 (TWO) parties, is now a contest between 4 (FOUR) parties, involving a government department. As the membership is aware, the SASP is not against the promulgation of a Para-Veterinary Professional (PVP) per se, and we acknowledge that additional training would be required for current physiotherapists who wish to work on animals. We also will accept that dual registration to the HPCSA and SAVC would be required going forward. However, what is an issue is the use of a protected title or designation in the description of the proposed PVP sought to be introduced. On 30 November 2016, the SASP attorneys sent a letter to the office of the State Attorney, who represents the Minister of Agriculture Forestry and Fisheries, seeking an undertaking from the Minister not to proceed with any steps toward promulgation of the proposed PVP, pending finalisation of the main action in court between the parties. The Minister s attorney requested postponement until 7 December 2016, to which no response was received. It is suspected that the attorney knew that a Notice for the suggested promulgation of the new PVP, using the name Veterinary Physiotherapist, would be published on 2 December Neither Bouwer Cardona Inc. nor the SASP, despite constantly monitoring the Government Printing Works website, was informed about the intention to publish the Notice and only became aware of the publication fortuitously. As a result of this

4 development an urgent interdict application was filed on 9 December 2016 in an attempt to stop the Minister from continuing the promulgation process using the title physiotherapist while the main case was still pending. The urgent interdict application was heard on 29 and 30 December 2016 by Judge Weinkove, and was unsuccessful on grounds and for reasons outlined in a written judgment dated 5 January While we appreciate that the decision was only limited to the primary relief against the Minister of Agriculture, the judgment contains a number of concerning conclusions and misconceptions of the profession. This is probably due to fact that the scope of the Judge was only limited to urgency and interdictory relief, and not the merits of the main case, which are yet to be decided by the trial court. However, the SASP IS STILL TAKING LEGAL ADVICE IN DECIDING ON HOW BEST TO ADDRESS ALL THE INCORRECT ASSUMPTIONS AND CONCLUSIONS IN THE JUDGMENT WHICH THE COURT WAS NOT CALLED UPON TO CONSIDER. IS PROTECTNG THE TITLE PHYSIOTHERAPY/PIST or PHYSICAL THERAPY/PIST NECESSARY AT ALL? It is important for the public out there to understand what physiotherapy is all about, the training required to qualify as a physiotherapist and the ethical and legal requirements to practise as a physiotherapist in South Africa. Disturbingly, Judge Weinkove in his judgment, looked in the Oxford dictionary of what physiotherapy is, and could not comprehend why we feel it is our exclusive and well-earned right to call ourselves physiotherapists : The following excerpts of paragraphs taken from the judgment are pertinent: Paragraph 19: I am not persuaded that Applicant s members have exclusive rights to the word physiotherapy on the basis of the contentions made or in the documents which I examined. Paragraph 20: Chambers Dictionary describes physiotherapy as originating from the Greek language and means treatment of disease by remedy such as massage, fresh air, electricity rather than drugs (1983 edition). Although the legal action was initiated against persons in the animal field, whom as nonphysiotherapists called themselves animal or veterinary physiotherapists, the protection of title goes much further than that. If the term physiotherapy/pist is a general term to be used by anybody, as Judge Weinkove indicated in the judgment and what is argued by the Councils of ELC, then Biokineticists, Chiropractors, any lay person or therapist can start calling themselves

5 physiotherapists! However, as already pointed out above, the judge with respect, digressed from the issue of urgency and the requirements of an urgent interdict he was called upon to consider. The issue of the constitutive elements of the profession of physiotherapy and its substance will be dealt with by the trial court after expert witnesses are led in evidence. In our view, the Judge could not properly deal with such a complex legal issue by simply referring to a definition contained in a dictionary. In order to dispel the simplistic views in the litigation already demonstrated above, we consider it very important that this matter be heard by the trial court, which will have the benefit of hearing expert evidence and consider the over 2000 (TWO THOUSAND) pages made up of almost 13 volumes already forming part of the Court record. The Judge hearing the interdict application did not have the benefit of listening to evidence and did not read the documents in the main case. This case may have especially ground-breaking implications not only for the Health Professions Council of South Africa (HPCSA), but for members of the public in general, as a wide-ranging declaratory order is being requested from the court. Should the declaratory order be granted, no person will use the title unless they are registered with the HPCSA, which brings us to the next point. A person using the title should be a qualified physiotherapist, who obtained a degree at a registered University, with the necessary qualifications and legal standing to practice this prestigious profession, firstly on humans and then on other species, as trained. The SASP is of the opinion that the HPCSA should be involved in the legal action, and has again requested its intervention in the pending litigation, as this court case may be a watershed case in South Africa, to protect the titles and the professions under the jurisdiction of the HPCSA. Furthermore it is the responsibility of the HPCSA to protect the public, and prevent any confusion of who the actual professional is providing the treatment, as well as protect the integrity of the professions falling under its jurisdiction. We need our members moral and financial support to finalise the process. This will be one of the discussion points at our GM on 10 March 2017, and a proposal by the Financial Committee on what the SASP is prepared to further spend, should the matter still not be finalised by then, will be voted on. Hope to see you all there for this very important matter, otherwise you are welcome to send your comments to the President at president@saphysio.co.za or Magda Fourie profliaison.consultant@saphysio.co.za Dr Ina Diener PRESIDENT