Dead-end for fake nurses

RELEBOHILE TSOAMOTSE

MASERU – The Appeal Court has upheld a Lesotho Nursing Council (LNC) decision to strike two nurses off the list of practicing nurses. LCN removed one Relebohile Poqa and Pontšo Matsepe from the list of practicing nurses on January 19, 2022, in letters served on them and later to their lawyers.

The duo was asked to surrender their certificates and was informed of a decision to remove their names from the list of practicing nurses. The Appeal Court decision means High Court judge, Justice Molefi Makara’s argument that punishing the two nurses who forged their way into a nursing school would contradict the spirit of Ubuntu did not convince the Appeal Court to let them off the hook.

The pair managed to work undetected for almost a decade after completing the nursing diploma. The highest court in the land nullified Justice Makara’s orders and said LNC’s revocation of the nurses’ licences and their removal from the roll of practicing nurses was legal and justified. Justice Makara on March 20, 2023, confirmed an order nullifying LNC’s decision as the duo sought the court’s intervention.

He interdicted the nurses’ body from proceeding with its decision to cancel Poqa and Matsepe’s practicing certificates and declared the removal of their names from the roll of practicing nurses as invalid and of no legal effect. The Court Appeal panel, comprising three judges, disagreed with Justice Makara’s ruling and judgment last Friday and set his orders aside.

Justices Moroke Mokhesi, Polo Banyane, and Van Der Weisthuizen agreed that LNC’s appeal must be upheld. Poqa and Matsepe’s removal followed LNC’s discovery that they forged their Cambridge Overseas School Certificate (COSC) results to gain admission into a nursing course at Maluti Adventist School of Nursing in Mapoteng and the fact that they were convicted by the Maseru Magistrate Court for the same forgery on June 20, 2013, but Justice Makara granted their application to have LNC’s decision to deregister them nullified.

They were each fined M20, 000 by the Magistrate’s Court. When Justice Makara granted an application to nullify their expulsion, LNC had not opposed the application because they argued during the appeal that they were not notified each time the duo came to court to pursue their case.

In granting the default judgement, Justice Makara ordered that LNC’s decision or move to forfeit Poqa and Matsepe’s certificates was null and void in the eyes of the law. At the time of their application, Poqa and Matsepe were due to renew their practicing licences and asked the court to interdict and prohibit the council from refusing to renew their licences.

LNC had argued that their conviction by the Magistrate’s Court rendered their registration as nurses fraudulent and therefore resolved to deregister their names “in terms of Section 38(1) of the Nurses and Midwives Act, No. 12 of 1988, which prescribes that if the Professional Conduct Committee (PCC) is satisfied upon due inquiry that an entry made in the register roll or list has been made fraudulently or incorrectly, the PCC will direct that entry be deleted therefrom.”

Poqa and Matsepe contested the decision, arguing they were not heard when a decision to deregister them was taken. They argued that it is mandatory for LNC to inform them in writing that it intends to hold a disciplinary hearing against them and that they be afforded a chance to explain their side of the story. In a letter informing them of their deregistration, LNC made reference to a meeting it had with Poqa and Matsepe where they told the Council that they were found guilty of forgery and paid a fine, but the pair denied attending such a meeting through their lawyers.

“We put it on record that your letter did not address the issues we raised in our letter of August 5, 2021, but raised a litany of issues from the alleged meeting of August 15,2021, a meeting that is not known to our clients.”In their August 5 letter, Poqa and Matsepe asked to be furnished with  reasons for an order to surrender their certificates, saying LNC does not have the power to self-review.

Subsequently, LNC petitioned the High Court to rescind (cancel) its earlier judgement on the matter, but the request was denied.  Registrar of the LNC, Flavia Moetsana Poka, argued that Justice Makara’s order was not sustainable in law since the complainants neither qualify to remain in the nursing profession nor to use the title of registered nurse.

Poka told the court that Poqa and Matsepe misled the court “by conveniently failing to disclose a material fact to the effect that they have been convicted of a crime.” Justice Makara dismissed the rescission application, saying it could contradict the spirit of Ubuntu to punish Poqa and Matsepe for the wrongs they might have committed during their youth. “This could have catastrophic effect upon them as persons and upon their siblings,” Justice Makara said.

The judge referred to the fact that the duo had successfully practiced nursing for almost a decade without any recorded flaws in their work, saying their criminal behaviour predates their nursing training and employment in the health sector. He said LNC would have to demonstrate how Poqa and Matsepe forged their COSC qualifications if it was to succeed in its application or resolution to deregister them and also explain the misinterpretation it alleges the two nurses made to gain admission at Maluti Adventist.

Justice Makara also said LNC would have to justify deregistration from the nursing council despite the fact that they have successfully gone through the nursing academic and practical curriculum, which culminated in their being awarded the Diploma in Nursing. On top of that, he said the council would have to demonstrate the correlation between COSC and nursing qualifications.

In his judgement, Justice Makara said the court takes judicial notice of the fact that there are high-ranking officials who, despite having been convicted and sentenced for criminal acts, continue to serve as loyal and productive public servants. LNC maintained that Justice Makara erred by not applying his mind to the fact that the accused ultimately produced illegitimate qualifications to their organisation so that they could become registered nurses who are fit to practice as such and asked the Appeal Court to overturn the High Court decision. The Appeal Court agreed with LNC and granted its application.