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[2007] ZALCCT 3
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Theron v Minister Of Correctional Services and Another (C579/07) [2007] ZALCCT 3 (13 December 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO: C579/07
In
the matter between:
PAUL
ALEXANDER
THERON
Applicant
and
THE
MINISTER OF CORRECTIONAL
SERVICES First
Respondent
MEC
FOR THE DEPARTMENT OF HEALTH IN THE
WESTERN
CAPE
Second
Respondent
JUDGMENT
INTRODUCTION
1.
In this application the applicant sought a
Rule Nisi
,
an interim interdict and certain ancillary relief on 4 December 2007.
2.
The following order was made on 7 December
2007:
1.
The applicant's failure to comply
with the Rules of this Court relating to forms, service and time
periods is condoned and this
matter is heard as one of urgency;
2.
A rule nisi is issued, calling upon
the respondents to show cause on a date to be determined by the
Registrar why an order should
not be granted in the following terms:
2.1
reviewing and setting aside the
decisions of the first and/ or second respondents
2.1.1
to remove the applicant from his
post as the senior medical practitioner at Pollsmoor Correctional
Services Facility, Medium A section
(herein referred to as
"Pollsmoor"); and/ or
2.1.2
to transfer the applicant from
Pollsmoor to Lotus River Day Community Health Clinic;
(hereinafter
collectively referred to as "the decisions")
2.2
substituting the decisions with a
finding that the applicant be permitted to return to his post as the
senior medical practitioner
at Pollsmoor;
alternatively,
remitting the determination of this issue to the first and/or second
respondent for reconsideration with such directions as the
Court
deems meet;
2.3
directing the respondents to
reinstate the applicant as a sessional medical practitioner at
Pollsmoor forthwith;
2.4
directing the respondents to pay the
costs hereof, including costs of two counsel, jointly and severally,
the one paying the other
to be absolved;
2.5
granting the applicant further and
/or alternative relief;
3.
Paragraph 2.3 hereof shall operate
as an interim interdict pending the outcome of this review
application and the outcome of the
unfair labour practice dispute
between the parties, to be referred to this Court in due course;
4.
The interim interdict in paragraph 3
hereof shall lapse in the event that the applicant does not refer an
unfair labour practice
dispute to this Court within 10 days of the
issuance of a certificate of non-resolution of the dispute by the
bargaining council
having jurisdiction to conciliate the dispute
("the council");
5.
The respondents are to pay the costs
of this application for interim relief, including costs of two
counsel, jointly and severally,
the one paying the other to be
absolved
.
3.
I undertook to furnish my reasons for the
order at a later stage, and do so herewith.
4.
The pleadings in this matter were
voluminous and ran in excess of 780 pages, including bulky annexures
that were not always placed
in context in the affidavits. This
was not always useful in deciding the matter.
5.
The salient facts of the matter may however
be distilled as follows hereinafter.
6.
The applicant had provided medical care to
prisoners at Pollmoor Management Area, Medium A (hereinafter referred
to as “Pollsmoor”)
for approximately 22 years. The
capacity in which he had done so, was in dispute, although the
parties were in agreement
that the applicant was an employee of both
the Department of Correctional Services (hereinafter referred to as
“the DCS”)
and the Department of Health (hereinafter
referred to as “the DOH”) for the purposes of the
Protected Disclosures Act,
26 of 2000 (hereinafter referred to as
“the PDA”).
7.
For a number of years there had been
significant problems with the standard of healthcare, and the
circumstances under which it
had been rendered, at Pollsmoor and the
applicant had on numerous occasions complained about these aspects to
a number of officials
at the DCS and the DOH. The parties were
not
ad idem
about the extent of these problems and whether the DCS had made
adequate attempts to address them.
8.
During January 2007 the applicant raised
these problems with the office of the Inspecting Judge of Prisons.
During April 2007
the applicant also raised these problems with the
Portfolio Committee on Correctional Services of Parliament.
9.
The office of the Inspecting Judge visited
Pollsmoor during May 2007 and on 25 May 2007 it delivered a report
about the standard
of healthcare at Pollsmoor. This report was
highly critical of the health care service at Pollsmoor.
10.
The Portfolio Committee also visited
Pollsmoor during May 2007 and also rendered a report which was
critical of the health care
service at Pollsmoor.
11.
On 19 July 2007 the applicant was charged
by the DOH with misconduct for
contacting
the inspecting Judge, Justice Erasmus to do an inspection at
Pollsmoor Prison Hospital Medium “A” without
informing
the Area Commissioner
and
visiting
Mr Bloem, the chairperson of a Portfolio Committee who eventually
approached Parliament via Mr Selfe
.
12.
The applicant launched urgent proceedings
in this Court to interdict the DOH from holding the envisaged
disciplinary proceedings.
The DOH agreed to an order
interdicting it from proceeding with the disciplinary proceedings.
The charges against the applicant
were later withdrawn, and this led
to the settlement of the unfair labour practice dispute that the
applicant had referred to the
Public Health and Welfare Sector
Bargaining Council.
13.
When the applicant thereafter attempted to
return to work at Pollsmoor on 14 September 2007 he was informed by
an official that
the DCS had written a letter to the DOH, advising it
that his services were no longer required at Pollsmoor. The
applicant
obtained a copy of this letter some time later and its
contents are quoted because of its importance. The letter,
which was
addressed to Dr Jano, who is the Applicant’s
superior, reads:
As you are aware, we
had various conversations regarding the above-mentioned matter.
I took cognizance of
the fact that DOH agreed to Dr Theron’s relief seeking an
interdict preventing him from being disciplined.
However, I am of the
opinion that the relationship between Pollsmoor Management Area and
Dr Theron has been severely damaged.
Therefore it would be in
the best interest of Pollsmoor Management Area not to place Dr Theron
back at Pollsmoor.
The letter was signed by
Reverend Fry, the Acting Area Co-ordinator: Development and
Care at Pollsmoor.
14.
The applicant was not heard before the
decision to no longer permit him to work at Pollsmoor was taken.
15.
As a consequence of the decision of the
DCS, dr Jano placed the applicant at the Lotus River Day Community
Health Centre, where
the working conditions were a lot better than at
Pollsmoor.
16.
The applicant deemed his removal from
Pollsmoor to be an occupational detriment in terms of the PDA, and
unlawful administrative
action, and launched a review application in
this Court and referred a further dispute about an alleged unfair
labour practice
to the Public Health and Welfare Sector Bargaining
Council.
URGENCY
17.
The parties were
ad
idem
that the application should be
heard as a matter of urgency, and I ruled accordingly.
APPLICATION
FOR AMENDMENT
18.
During the course of argument Mr
Kahanovitz
, who
appeared for the applicant with Mr Leslie, moved for an amendment to
prayer 2.3 in the notice of motion by inserting the words
“a
sessional” between the words “as” and “senior”
in the first line of the prayer. Mr
Arendse SC, who appeared
for both the respondents, vigorously opposed this application on the
basis that the applicant had been
obliged to make out his case in his
founding affidavit, and that the respondents had consistently pointed
out to the applicant
that he had not occupied the post of “the
Senior Medical Practitioner” at Pollsmoor, as he had alleged in
his founding
affidavit. I was of the view that the respondents
would not be prejudiced by the amendment, as they had in fact
correctly
described the Applicant’s position in their papers,
and had argued the matter on this basis. Accordingly I granted
the amendment.
19.
It would be convenient to deal with another
contention raised by Mr Arendse about the description by applicant of
his post at this
stage. Mr Arendse contended that the
application should be dismissed due to the fact that the applicant
had not made out
his case in his founding affidavit. This
objection again centred on the fact that the applicant had
incorrectly described
his post at Pollsmoor. During argument it
became clear that both parties knew that the applicant had been a
part time sessional
senior medical practitioner working at Pollsmoor
Medium A. Absolutely nothing turned around the incorrect
description of
the post by the applicant in his papers. In
fact, the only real issue in dispute between the parties about the
post of the
applicant was whether he had been employed on a fixed
term contract or permanently. The respondents were not
prejudiced by
the incorrect description and the matter was fully
argued. I found the following
dictum
in
Director of Hospital Services v
Mistry
1979 (1) SA 626
(AD) at 636C
useful:
I
am not losing sight of the fact that, in the absence of an averment
in the pleadings or the petition, a point may arise which
is fully
canvassed in the evidence, but then it must be fully canvassed by
both sides in the sense that the Court is expected to
pronounce upon
it as an issue.
20.
This aspect was accordingly also not fatal
to the applicant’s case.
REQUIREMENTS FOR
INTERIM RELIEF
21.
The parties were
ad
idem
about the test to be applied and
referred to the well known passage in
Webster
v Mitchell
1948 (1) SA1186 (W) at
1189.
the right to be set up
by an applicant for a temporary interdict need not be shown by a
balance of probabilities. If it is “prima
facie established
though open to some doubt” that is enough. …
The proper manner of
approach I consider is to take the facts as set out by the applicant,
together with any facts set out by the
respondent which applicant
cannot dispute, and to consider whether, having regard to the
inherent probabilities, the applicant
could [this was changed to
“should” in Gool v Minister of Justice 1955 (2) SA 682
(C) 688] on those facts obtain final
relief at the trial. The facts
set up in contradiction by the respondent should then be considered.
If serious doubt is thrown
upon the case of the applicant he could
not succeed in obtaining temporary relief, for his right prima facie
established, may only
be open to ‘some doubt’. But if
there is mere contradiction, or unconvincing explanation, the matter
should be left
to trial and the right be protected in the meanwhile,
subject of course to the respective prejudice in the grant or refusal
of
interim relief.”
See also
Spur Steak
Ranches Ltd v Saddles Steak Ranch
1996 (3) SA 706 (C) at 714
B-H.
22.
I now turn to the various elements that
require consideration in order to decide whether an interim interdict
should be granted
or not.
Right
23.
The applicant had two causes of action,
namely:
23.1.
the unlawfulness of the decision to
transfer him, which he sought to enforce by way of an application for
review, and
23.2.
the fact that his transfer constituted an
unfair labour practice because it was an occupational detriment on
account of a protected
disclosure made by him, and which he sought to
enforce by the referral of a dispute about an alleged unfair labour
practice to
the Public Health and Welfare Sector Bargaining Council.
24.
In argument the parties focussed on the
unfair labour practice dispute, although Mr Kahanovitz did not
abandon reliance on the review
application. Due to the fact
that this was an application for interim relief, and that I had to
decide the matter on an urgent
basis, I focused on the unfair labour
practice dispute as I was of the view that the applicant would be
entitled to interim relief
if he established a right in this regard.
25.
I accordingly dealt with the issue of
whether the applicant had been subjected to an occupational detriment
because he had made
a protected disclosure, in order to decide
whether the applicant had established a right.
26.
This court dealt with the PDA, and in
particular a disclosure in terms of Section 9 thereof, in
Tshishonga
v Minister of Justice and Constitutional Development and Another
[2007] 4 BLLR 327 (LC). I relied heavily on this judgment in
forming my opinion.
27.
Was a disclosure made?
27.1.
Paragraphs (b) (
that
a person has failed, is failing or is likely to fail to comply with
any legal obligation to which that person is subject;)
and (d) (
that the health or safety of an
individual has been, is being or is likely to be endangered;
)
of the definition of disclosure in the PDA were material to the case.
27.2.
Section 35(2)(e) of the Constitution of the
Republic of South Africa, Act 108 of 1996 provides that prisoners are
entitled to:
conditions of
detention that are consistent with human dignity, including at least
exercise and the provision, at State expense,
of adequate
accommodation, nutrition, reading material and medical treatment;
.
This Constitutional requirement is given effect to,
inter
alia
, by the Correctional Services Act,
No. 111 of 1998. Section 12(1) of that act provides that the
DCS must, within its available
resources, provide adequate healthcare
services, and section 12(2)(a) provides that every prisoner has the
right to adequate medical
treatment.
The
Correctional Services Regulations,
inter
alia
, require that prisoners must be
medically examined within 24 hours of admission. The purpose of
this requirement is clear.
It serves to protect both the new
inmate and other inmates, by the identification of any medical
condition that the new inmate
might have. The treatment
required by the inmate could thus be established and he or she could
be isolated from other prisoners
if the condition was contagious.
27.3.
The applicant complained,
inter
alia
, about staff shortages in health
care practitioners and insufficient disease control measures at
Pollsmoor. Both these complaints
relate directly to both the
legal obligations of the DCS to provide health care, and the health
of individuals. It thus seemed
that the communications by the
applicant to the office of the Inspecting Judge and the Portfolio
Committee were disclosures as
contemplated by the PDA, and more
particularly by paragraphs (b) and (d) of that definition.
28.
Were the disclosures deserving of
protection?
28.1.
Due to the fact that the disclosures had
not been made to the employer (as contemplated by Section 6), a
member of Cabinet or Executive
Council (as contemplated by Section 7)
or a body as envisaged by Section 8, any right to protection that the
applicant might have,
had to be assessed in terms of Section 9 of the
PDA.
28.2.
In order to qualify for protection in terms
of Section 9, the applicant had to meet three sets of requirements.
28.3.
Firstly, Applicant had to have made the
disclosure in good faith and he must have reasonably believed that
the contents thereof
were substantially true. He must
furthermore not have made the disclosure for personal gain. On the
facts stated by the applicant,
these requirements were met. In
rebuttal all that the respondents advanced, was that the applicant
had overstated the problem,
and that the DCS had been busy rectifying
the problems, within its operational and budgetary constraints.
It seemed that,
at the very least, the applicant had believed that
the disclosures were substantially true, and respondents did not show
that he
had been
mala fide.
It
was not contended that the applicant acted for personal gain.
28.4.
Once the applicant had passed the
above-mentioned threshold, the disclosure would be protected if:
28.4.1.
one or more of the conditions referred to
in Section 9(2) applied, and
28.4.2.
it had been reasonable to make the
disclosure in all the circumstances of the case.
28.5.
As far as the requirements of Section 9(2)
were concerned, the applicant relied on the conditions contained in
Section 9(2)(c) and
Section 9(2)(d).
28.6.
With regard to Section 9(2)(c):
28.6.1.
The applicant contended that he had
previously made disclosures of substantially the same information to
his employer and that no
action had been taken within a reasonable
period.
28.6.2.
It was common cause that the Applicant had
complained to the DCS and DOH about the same matters that he had
complained about to
the office of Inspecting Judge and the Portfolio
Committee. The respondents however vigorously disputed the fact
that no
action had been taken as a result of the disclosures.
Mr Kahanovitz contended that the word “no” should not be
interpreted literally as it would have absurd consequences if very
little or woefully inadequate action by an employer would deprive
an
employee of the protection afforded by the PDA. There seemed to
be merit in this contention but it was not necessary to
decide it at
this stage of the proceedings. A Court finally deciding the
matter would hopefully have more information about
exactly what the
applicant had disclosed to the office of the Inspecting Judge and the
Portfolio Committee, and adequacy of the
remedial steps that the DCS
had taken in response to the applicant’s earlier complaints.
28.7.
With regard to Section 9(2)(d):
28.7.1.
It seemed that the complaints by the
applicant related to an impropriety of an exceptionally serious
nature as contemplated by Section
9(2)(d).
28.7.2.
I did not understand this requirement to
mean that the conduct of the employer had to be exceptionally
blameworthy, but that it
meant that the consequences of the failure
to comply with a legal obligation (paragraph (b) of the definition of
disclosure) or
the endangerment of health or safety of an
individual/s (paragraph (d) of the definition of disclosure) would be
exceptionally
serious. The fact that the health of prisoners
had been was being or was likely to be endangered, must in itself be
sufficient
to qualify as being of an exceptionally serious nature.
Again, a Court who is apprised of all the facts should finally
decide
this point.
28.8.
Section 9(3) then provides that an employee
would only be protected if it had been reasonable for the employee to
make the disclosure,
in the context of 9 listed items. They are
dealt with in turn:
28.8.1.
(a)
the identity of the person to whom the disclosure is made;
It had been reasonable
for the applicant to make the disclosure to the office of the
Inspecting Judge and the Portfolio Committee
as these two bodies
clearly had a direct nexus to correctional services.
28.8.2.
(b) the seriousness of the
impropriety;
The issue of the
seriousness of the impropriety is dealt with in paragraph 28.7.2
above.
28.8.3.
(c) whether the impropriety
is continuing or is likely to occur in the future;
It seemed common cause
that the impropriety would be continuing. All that the
respondents contended was that the problems
were being dealt with,
within the constraints of the DCS.
28.8.4.
(d) whether the
disclosure is made in breach of a duty of confidentiality of the
employer towards any other
person;
There was no allegation
that the applicant, in making the disclosure, had breached a duty of
confidentiality of the DCS or the DOH
towards any other person.
28.8.5.
(e)
in a case falling within
subsection
(2)(c)
, any action which the employer or the person or body to
whom the disclosure was made, has taken, or might reasonably be
expected
to have taken, as a result of the previous disclosure;
The DCS had taken action
as a result of the previous disclosures although the parties were in
dispute about the adequacy thereof.
On the facts contended by
the applicant it seemed as if this action had been woefully
inadequate, but on the facts submitted by
the respondents, the DCS
has done what it could under the circumstances. Again this
point was not finally decided, although
the facts advanced by the
respondents did not create much doubt.
28.8.6.
( f )
in
a case falling within
subsection
(2)(c)(i)
, whether in making the disclosure to the employer the
employee complied with any procedure which was authorised by the
employer;
Mr Arendse argued that
the applicant should have turned to the Steering Committee
established by the agreement between the DOH and
the DCS, or the
Superintendent General of the DOH. I was however of the view
that the applicant had done what he could in
this regard. He
consistently complained to his direct superior, Dr Jano, and even to
Dr Bitalo, who was Dr Jano’s superior.
He had also, from
time to time, complained to various officials at Pollsmoor. The
fact that none of the aforementioned recipients
of the complaints had
informed the applicant that the Steering Committee or Superintendent
General was the correct body to complain
to, strongly suggested that
there was no requirement that the applicant had an obligation to
direct his complaints to these bodies.
28.8.7.
(g)
the public interest.
It must be in the public
interest that serious shortcomings in the provision of healthcare
services to prisoners be communicated
to the Inspecting Judge or the
Portfolio Committee after complaints to officials of the DCS and DOH
had not led to the rectification
of the shortcomings.
28.9.
The disclosures by the applicant were
accordingly protected disclosures. Mr Kahanovitz invited me to
find that the applicant
had established a clear right in this
regard. Due to the concerns set out hereinbefore, I was however
of the view that the
right was open to some doubt, albeit not much.
29.
Occupational Detriment
29.1.
Item (c) of the definition of occupational
detriment, deals with the transfer of the employee, against his or
her will.
29.2.
There was no suggestion that the applicant
had agreed to be transferred from Pollsmoor.
29.3.
Mr Arendse however contended that the
applicant had not been transferred because he had been employed by
the DOH as a Senior Medical
Practitioner, and that the DOH could
accordingly employ him in that capacity at any place within the area
of the Metro District
Health Services. This argument lost sight
of the fact that, although an employer might, at common law, be
entitled to transfer
an employee from one workplace to another, it
did not detract from the protection that the PDA afforded to such an
employee if
that transfer had been occasioned by a protected
disclosure.
29.4.
Mr Arendse furthermore contended that the
DOH rendered services to the DCS in terms of an agreement and that
the DOH had no right
to foist an unwanted doctor onto the DCS.
However, due to the fact that it was common cause that both the DOH
and the DCS
was
the employer
of the applicant for purposes of the PDA, the move away from
Pollmoor, at the instance of the DCS, constituted a transfer at the
instance of an employer.
29.5.
The next question that arose was whether
there was a nexus between the disclosure and the occupational
detriment. In
Communication
Workers Union v Mobile Telephone Networks (Pty) Ltd
(2003) 24 ILJ 1670 (LC) at 1677F, Van Niekerk AJ held that: …
provided that there is some demonstrable
nexus between the making of the disclosure and the occupational
detriment threatened or
applied by the employer, the protections of
the PDA should apply
.
29.6.
The applicant passed this test. It is
clear that the DOH attempted to discipline the applicant for
communicating with the
inspecting Judge and the Portfolio Committee.
It is equally clear that this attempt floundered in the face of an
application
to this Court. The next thing that happened was
that the applicant was informed that he would no longer work at
Pollsmoor.
The DCS set out its reason for not wishing the
applicant at Pollsmoor in a contemporaneous letter, quoted in
paragraph 13 above.
The only reason that was referred to was
that the relationship between it and the Applicant
has
been severely damaged
. That
damage was caused by the disclosures and the consequences thereof.
Accordingly the nexus between the disclosure
and the occupational
detriment had been established.
30.
The right that the applicant had
established was that he suffered an occupational detriment because he
had made a protected disclosure.
Employees who do so should be
protected by this Court. See
Tshishonga
(supra) paragraphs 166 to 175 on pages 355 to 357.
IRREPARABLE HARM
31.
Irreparable harm has been defined as
the
loss of property (including incorporeal property and money) in
circumstances where its recovery is impossible or improbable.
The loss need not necessarily be financial loss: it may consist
of an irremediable breach of the Applicant’s rights.
Superior Court Practice
Juta page E8-11.
32.
This requirement must not to be confused
with the balance of convenience requirement. The key is whether
the harm that the
applicant is suffering can be restored when the
matter is finally decided. In this case it can be: as much as
the applicant
can be restored to the position of Sessional Medical
Practitioner at Pollsmoor by this order, so he can be by any final
order which
this Court may make in the dispute. This is a
factor which weighs against the granting of interim relief.
BALANCE OF
CONVENIENCE
33.
In
Eriksen
Motors Ltd v Protea Motors and Another
1973 (3) SA 685 (A) at page 691E-F the Court held that:
In exercising its
discretion the Court weighs, inter alia, the prejudice to the
Applicant, if the interdict is withheld, against
the prejudice to the
Respondent if it is granted. This is sometimes called the
balance of convenience.
The
aforegoing considerations are not individually decisive, but are
inter related; for example, the stronger the Applicant’s
prospects of success the less his need to rely on prejudice to
himself. Conversely, the more the element of “some
doubt”, the greater the need for the other factors to favour
him.
34.
Due to the fact that I was of the opinion
that the right established by the applicant, was not open to much
doubt, the balance of
convenience did not play such a strong role in
the exercise of my discretion.
35.
Mr Arendse contended that the applicant
would, in fact, suffer no inconvenience, due to the fact that he was
employed by the DOH
on a fixed term contract that expired on 31
December 2007. In support of this contention, he relied on 1
year, fixed term
contracts of employment presented to the applicant
during 2006 and 2007, which he refused to sign. The applicant
stated that
he was in the formal employment of the DOH as a Senior
Medical Practitioner and that he had been providing services to
Pollsmoor
Prison for more than two decades. Mr Arendse
contended that the status of the applicant had been changed to a
fixed term
employee as a result of a Bargaining Council Resolution
and/or of action by the Auditor-General. However he was unable
to
find any support in the papers for this submission.
Accordingly, on the evidence before me, I found that the applicant
was
a part time, permanent employee of the DOH.
36.
The prejudice relied on by Mr Kahanovitz
was that the applicant would be under a continued impediment if the
interim relief were
not granted. This seemed to be prejudice
that all applicants for interim relief in dismissal, suspension and
transfer disputes
before this Court would suffer, and did not assist
in deciding the balance of convenience. The Applicant was still
employed
as a Sessional Medical Practitioner, and he was based at a
workplace where the conditions were more favourable. As Mr
Arendse
had pointed out, this type of inconvenience was significantly
less than that suffered by an employee who had been dismissed.
37.
This Court is reluctant to grant interim
relief to dismissed employees.
Hultzer
v Standard Bank of South Africa (Pty) Ltd
[1999] 8 BLLR 809
(LC);
University of
the Western Cape Academic Staff Union and Others v University of the
Western Cape
[1999] 20 ILJ 1300
(LC). See also
Hlope and Others
v Minister of Safety and Security and Others
[2006] 3 BLLR 297
(LC) at 307D-E where
this Court held:
I
would also note the long-standing practice in this Court of refusing
to grant urgent interim relief in the form of reinstatement
in
circumstances where an employee is dismissed, unless exceptional and
cogent grounds exist. Where a dispute concerns a
transfer, the
threshold must rise accordingly. For these reasons, I am not
persuaded that any harm to the Applicants consequent
on their
transfer is irreparable.
38.
It would seem that although the Court
referred to irreparable harm, it appeared to be dealing with the
inconvenience that the applicants
were suffering as a result of a
transfer and not the issue as to whether they might not be able to
obtain full restoration of their
rights at a final hearing.
39.
The contention of Mr Kahanovitz that the
applicant was precluded from working with prisoners, which was his
passion and which he
had been doing for about two decades, seemed to
be the real inconvenience that the applicant was suffering.
40.
Against this, Mr Arendse submitted that the
DCS no longer required the services of the applicant due to the fact
that Dr Mackelarz,
had been permanently appointed and had taken over
those functions. I was not persuaded by this argument. A
number of
Sessional Doctors, including the applicant, worked at
Pollsmoor at a time when a Doctor George had been appointed
permanently.
By all accounts, the presence of Doctor George had
not lead to Pollsmoor being overstaffed with medical practitioners.
It
was accordingly difficult to comprehend how (with Dr George having
being replaced by Dr Mackelarz after a period of time) Pollsmoor
no
longer required the services of one of those Sessional Doctors.
Thus, the only inconvenience that the DCS would suffer
if the
applicant was to return to Pollsmoor on an interim basis was the fact
that officials, who took exception to the fact that
he had made the
disclosures to the Inspecting Judge and the Portfolio Committee,
would have to work with him. It did however
appear that his
interaction with such officials would be limited.
41.
Accordingly the balance of convenience
favours the applicant, but not by much.
CONCLUSION
42.
I formed the view that the applicant had
established a right that was open to slight doubt, that that right
was especially worthy
of protection by this Court, that he suffered
no irreparable harm, and that the balance of convenience slightly
favoured him.
43.
I exercised my discretion in favour of
granting interim relief, mainly because the reason that the
applicant’s right had been
infringed, was that he had made a
protected disclosure, which made him especially deserving of the
protection of this Court.
COSTS
44.
Mr
Arendse submitted that the respondents should be granted costs if
they were successful, alternatively that no order as to costs
should
be made. Mr Kahanovitz contended that costs should follow the
cause and that the applicant should be entitled to the
costs of two
Counsel if he succeeded. Mr Arendse opposed this proposition.
I was of the view that costs should follow
the result and that the
matter justified the employment of two Counsel. The papers were
voluminous and the legal issues were
complex. Accordingly I
awarded costs, including the costs of two Counsel to the applicant.
_________________
NIEUWOUDT
AJ
DATE OF HEARING:
4
December 2007
DATE OF
JUDGMENT:
13 December 2007
APPEARANCES
:
FOR THE APPLICANT:
Adv C Kahanovitz and
Adv G Leslie
INSTRUCTED
BY:
Open Democracy Advice Centre
FOR THE
RESPONDENTS: Adv N
Arendse SC
INSTRUCTED
BY:
The State Attorney