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[2013] ZAFSHC 63
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Public Servants Association of South Africa v MEC: Department of Health, Free State Province (1534/2013) [2013] ZAFSHC 63 (26 April 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 1534/2013
In the matter between:
THE PUBLIC SERVANTS
ASSOCIATION
OF SOUTH AFRICA
.................................................................
Applicant
and
MEC: DEPARTMENT OF
HEALTH, FREE STATE
PROVINCE
...........................................................................
Respondent
JUDGMENT:
HANCKE, AJP
_____________________________________________________
HEARD ON:
25 APRIL 2013
_____________________________________________________
DELIVERED ON:
26 APRIL 2013
_____________________________________________________
[1] This is an
application for an order in the following terms:
“
(a) That
this application be heard as a matter of urgency, dispensing with the
necessity of the applicant having to adhere to the
provisions of the
Rules of the above honourable court, in so far the same relate to
form, time periods and service, and condoning
the applicant’s
failure to strictly adhere thereto;
(b) That a rule
nisi
be issued
calling upon the respondent to provide reasons, if any, to this
court, on or before 6 June 2013 at 9h30 or as soon thereafter
as the
matter may be heard as to why an order in the following terms should
not be granted:
(i) that the respondent be interdicted
from the withdrawal of remunerative work outside the public service
alternatively that the
withdrawal dated 5 April 2013 be set aside,
pending the final determination of a review application to be filed
by the applicant
within 30 days of this order;
(ii) that the respondent pays the
costs of this application in the event of opposing the relief sought
herein.
(c) That the relief sought in
paragraph (i) will serve as an interim interdict with immediate
effect pending the finalisation of
the review application to be filed
by the applicant.”
[2] The applicant is
applying for an interim interdict. It is therefore necessary for the
applicant to establish the following:
“
(a) A
prima
facie
right;
(b) A well-grounded apprehension of
irreparable harm if the interim relief is not granted and the
ultimate relief is eventually
granted;
(c) That the balance of convenience
favours the granting of an interim interdict; and
(d) That the applicant has no other
satisfactory remedy.
In view of the discretionary nature of
an interim interdict these requisites are not judged in isolation and
they interact.”
LAWSA
Volume II, par 403.
[3] The applicant is a
trade union and the respondent the Member of the Executive Council
under whose control the Free State Department
of Health falls. Since
1999, medical practitioners in the employ of the Free State
Department of Health were, subject to certain
conditions, permitted
to perform work outside or beyond their duties to their employer, for
remuneration. On 5 April 2013 the respondent,
summarily and,
allegedly without consulting medical practitioners who would or might
be affected by such decision, resolved to
withdraw permission to
practice outside of the scope of the employment “during
official working hours”. The applicant
then, and in response to
such conduct launched this application wherein it seeks the
aforementioned relief.
[4] Mr Wessels, on behalf
of the respondent, submitted that it is applicant’s case that
it is a trade union on the one hand
but that the matter be determined
was not a labour issue. Therefore the applicant does not itself have
a direct and substantial
interest in the subject matter and in the
outcome of the present litigation and does not have
locus standi
in judicio
. In this regard he relied on the decision of
National Union of Mine Workers v Free State Consolidated Gold
Mining
1989 (1) SA 409
(O).
[5] He also criticised
the authorisation by the General Manager of deponent Koortz to the
founding affidavit of the applicant which
reads as follows:
“
I,
Danny-Boy
Zamile Adonis
,
in my capacity as the
General
Manager
of the
Public
Servants Association
of South Africa (PSA) with its Head Quarters at PSA Head Office
Building, 563 Belvedere Street, Arcadia, Pretoria hereby duly
authorize
Charl
Gerhardus Koorts
to dispose off (sic) any affidavit in the matter:
PSA
obo members vs Free State Department of Health
on behalf of the PSA.
Signed at
PRETORIA
on this day
19
th
of April, 2013.
(signed)
DZ Adonis
GENERAL MANAGER
”
I take it that the
“dispose off” should actually read “depose to”.
[6] In reply to the
respondent’s notice in terms of Rule 6(5)(d)(iii) the applicant
filed a reply in terms of Rule 7 and Rule
35 in which notice the
applicant’s statute (Constitution) dated 29 October 2010; the
applicant’s certificate of registration
of Company dated 1
August 2008 and the applicant’s certificate of registration as
a trade union were filed.
[7] As far as
locus
standi
is concerned it is important to note
that the applicant was also registered as a section 21 company and
that part of its registration
entails business services. Section 4 of
the applicant’s constitution clearly spells out the applicant’s
objectives
and caters for assistance to members in terms of
inter
alia
the Companies Act. The statute of the
applicant does not limit the applicant to labour related matters
only. Although the authorisation
of Adonis could have been better
worded, the only reason why Mr Koortz was authorised to depose to an
affidavit was clearly to
launch the present application. Apart from
Mr Koortz’s own allegation that he was duly mandated to depose
to this affidavit
there is also the affidavit of Dr Marx, stating
that
“I also wish to confirm that the applicant has been
mandated to act on behalf of myself and other medical practitioners
from
Universitas Hospital.”
[8] In view of the
aforegoing I am satisfied that the applicant has established the
necessary proof of
locus standi in judicio
.
[9] As far as the
requirement of a
prima facie
right is concerned, it is the
applicant’s case that the respondent unilaterally and arbitrary
decided to immediately stop
the said medical services in the province
and made it virtually impossible for medical practitioners to render
such services. Reference
is made to women receiving fertility
treatment who cannot have their treatment stopped at any stage as
they are in a cycle and
they ovulate on a specific moment. Apparently
there is a waiting list of up to 4 months for women patients with
these sub-specialist
conditions. Several other examples are
mentioned. If the present system is to be terminated for example if
it is being abused or
impractical it can only be done over a period
of time and after proper consultation and investigation.
[10] It is the
applicant’s case that the respondent made no attempt to consult
any medical practitioner, employee or trade
union and the decision
came as a surprise to all role players. At no stage were any medical
practitioners invited to make representations
and a decision was
taken arbitrary and apparently impulsively.
[11] As far as the
balance of convenience is concerned, the present system has been in
existence for 21 years and another 30 days
as prayed for (in prayer
1(b)(i) in the Notice of Motion) will not prejudice the respondent.
[12] In view of the
aforegoing I am of the view that the applicant has made out a proper
case for the relief claimed.
[13] Accordingly the
following orders are issued:
13.1. An order is granted
in terms of prayers a, b, and c of the Notice of Motion;
13.2. Costs of 25 April
2013 to be reserved to be determined on the return date.
___________________
S. P. B. HANCKE, AJP
On
behalf of the applicant: Adv. P. M. Venter
Instructed
by:
Lovius
Block
BLOEMFONTEIN
On
behalf of respondent: Adv. M. H. Wessels SC
Instructed
by:
The
State Attorney
BLOEMFONTEIN
/eb