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[2022] ZAGPPHC 907
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Minister of Health and Another v Solidarity Trade Union and Others (61844/2021) [2022] ZAGPPHC 907 (15 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER : 61844/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES NO
REVISED
15/11/2022
In
the matter between:
THE
MINISTER OF HEALTH
1st Applicant
THE
DIRECTOR-GENERAL NATIONAL
DEPARTMENT
OF HEALTH
2nd Applicant
and
SOLIDARITY
TRADE UNION
1st Respondent
THE
LIONS OF SOUTH AFRICAN
INDEPENDENT
PRACTITIONERS ASSOCIATION 2nd
Respondent
THE
SOUTH AFRICAN PRIVATE
3rd Respondent
PRACTITIONER
FORUM
BARBARA
PRETORIUS
4th Respondent
CHRISTA
ROLEEN
5th Respondent
BREAAN
SPIES
6th Respondent
ANJA
HEYNZ
7th Respondent
In
re:
SOLIDARITY
TRADE UNION AND SIX OTHERS
Applicants
and
MINISTER
OF HEALTH AND TWO OTHERS
Respondents
Delivered:
This judgment was handed down
electronically by circulation to the parties' legal representatives
by e-mail. The date for hand-down
is deemed to be on 15 NOVEMBER
2022.
JUDGMENT
VAN
HEERDEN AJ
[1]
When this matter commenced, this Court had the following prima facie
concern, namely:
1.
Can this Court hear an application for rescission where the subject
judgment of such rescission
i.e. the Bokakoa-Judgment, is currently
pending finalisation by virtue of the confirmation thereof in terms
of section 167(5) of
the Constitution, at the Constitutional Court.
[2]
It was only during argument that this Court was
made aware of the fact that the Constitutional Court, on 26 October
2022 issued
the following Directions:
“
1
The parties are directed to file written submissions of no more than
20 pages addressing the following
issues:
(a)
whether it is competent for the High Court to
rescind its
order
of constitutional invalidity, where such an order has no force or
effect in terms of section 172(2)(a) of the Constitution.
(b)
whether it is in the interest of justice to
grant the stay application where the respondents can raise, in
answering affidavit in
the confirmation proceedings in this court,
(the Constitutional Court) the points they would have raised in the
High Court.
2.
Written submissions must be filed by
(a)
the applicants, on/or before Wednesday, 2 November 2022; and
(b)
the respondents, on/or before Wednesday, 9 November 2022.
3
Further directions may be issued. "
[3]
This Court is of the view that it may not
entertain the rescission application pending finalisation of either:
1.
The current processes in terms of the
Constitutional Court's Directions; and/or
2.
The process as contemplated in section 167(5) of the Constitution
COST
[4]
This Court was only made aware of the Constitutional Court's
Directives during argument
on the day of the hearing.
[5]
It
would have assisted this Court greatly had it been made aware of the
Constitutional Court's Directives earlier for purposes of
which this
Court could also have engaged the Constitutional Court in obtaining
specific Directives in dealing with the current
application, under
these somewhat novel circumstances.
[6]
Therefore, the respondents should not be out of
pocket and can certainly not be blamed for the rescission application
not proceeding.
The applicants should as a result pay the cost.
[7]
Accordingly the following order is made:
1.
The matter is postponed sine die pending:
1
.1 finalisation of the processes pertaining to the
Constitutional Court's Directives; and
1
.2 the process as contemplated in section 167(5) of the
Constitution.
2.
The applicants are ordered to pay the cost.
D.J
VAN HEERDEN
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
APPEARANCES
For
the applicants: Adv
ZZ Matebese SC
With
him Adv NS Mteto
Instructed
by: N
Qongqo of the State Attorney, Pretoria
For
the respondents: Adv
M Davel
Instructed
by: SVS
Attorneys
Date
of hearing:
15
November 2022
Date
of judgment: 15
November 2022