Covid-19: Judge scolds union for “untenable” case against Minister of Health

“Under circumstances of national disaster, everyone is called upon, for the good of society as a whole, to co-operate in bringing the pandemic under control.”

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The Labour Court has issued a scathing judgment against NEHAWU. Photo: Brian Turner via Flickr (CC BY 2.0)

Health workers union National Education, Health and Allied Workers’ Union (NEHAWU) has received a judicial caution for launching an urgent application against Health Minister Dr Zweli Mkhize and provincial health MECs which was “misconceived in fact and law”.

Labour Court Judge Benita Whitcher heard the urgent application last Wednesday in which the union claimed its members were not being provided with Personal Protective Equipment (PPE) at hospitals across the country.

The union sought an order rectifying this and directing the minister to meaningfully engage with it about these issues.

At the 11th hour, the union attempted to withdraw the application. But Judge Whitcher refused this and directed that argument proceed. She then dismissed the application with costs.

On Saturday she handed down her written reasons.

She said she had refused the withdrawal because “the determination of the factual allegations was in the interests of justice so that the public at large are not left with an impression that a technicality interrupted the truth emerging”.

“This court acknowledges that all health workers remain in the front line, heroically so, and fully agrees that they are entitled to PPE so that they are not exposed to avoidable risks.

“Even if not in law, the union is an important social partner in this fight against the virus.

“However, this is a legal dispute, and the union provided no legal or evidentiary basis for its case.

The judge said the Minister of Health’s and MECs’ comprehensive data and documentary evidence disproved the union’s claims.

“It suffices to state that the respondents produced strong evidence that since the onset of the coronavirus crisis, they have engaged with the applicant and other trade unions on the issues raised by the applicant, and intend to continue to do so.

“And while there is a national shortage of PPE, the specific hospitals identified by the union either have no shortage at all, or if they do it can be resolved by simply placing additional orders or shifting resources.”

The judge said at first glance, it seemed that the union was raising matters of life and death but, in fact, “it had a very poor factual basis to drag all 12 respondents to court”, time which could have been better spent fighting the virus.

“On the issue of PPE, while the Minister in his affidavit concedes that things are not moving at an ideal pace, the making of exaggerated claims based on speculation causes unnecessary stress and panic inside and outside the country, as loose assumptions about South Africa’s readiness for Covid-19 can be made.

“Under circumstances of national disaster, everyone is called upon, for the good of society as a whole, to co-operate in bringing the pandemic under control.

“In short, a new value system on what constitutes acceptable behaviour has been thrust upon us all.”

Granting a costs order against the union, the judge said she was “adjusting the standard of what constitutes frivolous and vexatious conduct in litigation”.

“In this way, those who elect to pursue obviously untenable legal points, use the court process as part of other power-plays, unnecessarily consume the resources of their opponents or make allegations they cannot substantiate, know that they run the risk of a cost order thereby should they lose.”

TOPICS:  Covid-19 Health Labour

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