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[2020] ZALCJHB 66
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National Education Health and Allied Workers Union (NEHAWU) obo Members Providing Essential Services v Minister of Health and Others (J423/20) [2020] ZALCJHB 66; 2020 (6) BCLR 767 (LC); (2020) 41 ILJ 1724 (LC); [2020] 8 BLLR 788 (LC) (11 April 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA
Case
no: J 423-20
In the matter between:
NATIONAL EDUCATION
HEALTH & ALLIED WORKERS
UNION
(“NEHAWU”)
APPLICANT
obo members providing
essential services
and
MINISTER
OF HEALTH
FIRST
RESPONDENT
DEPARTMENT
OF HEALTH
SECOND
RESPONDENT
MINISTER
OF LABOUR
THIRD
RESPONDENT
MEC
FOR HEALTH : GAUTENG
FOURTH
RESPONDENT
MEC
FOR HEALTH : LIMPOPO
FIFTH
RESPONDENT
MEC
FOR HEALTH : MPUMALANGA
SIXTH
RESPONDENT
MEC
FOR HEALTH : NORTH WEST
SEVENTH
RESPONDENT
MEC
FOR HEALTH : FREE STATE
EIGHTH
RESPONDENT
MEC
FOR HEALTH : EASTERN CAPE
NINTH
RESPONDENT
MEC
FOR HEALTH : NORTHERN CAPE
TENTH
RESPONDENT
MEC
FOR HEALTH : WESTERN CAPE
ELEVENTH
RESPONDENT
MEC
FOR HEALTH : KWAZULU NATAL
TWELFTH
RESPONDENT
Heard:
8 April 2020
Judgment
delivered: 11 April 2020
JUDGMENT
WHITCHER J
Introduction
[1]
On 8 April 2020, notwithstanding a withdrawal of the matter, I
dismissed this application with costs
[1]
on the basis that the applicant had failed to make out a case on the
law and facts.
[2]
The purpose of this judgment is to provide a short summary, followed
by detailed reasons for my order.
[3]
The applicant’s case, brought on an urgent basis, principally
concerns the alleged obligations
and omissions of the Minister of
Health in relation to provision of Personal Protective Equipment
(PPE) to health workers in the
fight against the Coronavirus pandemic
(Covid-19). Relief was however also sought against the other
respondents. In the main, the
applicant claims that the Minister has
failed to ensure that health workers are provided with PPE, has
failed to issue guidelines
for the use of PPE and has failed to
meaningfully engage the applicant about these issues. The relief
sought in the notice of motion
includes an order directing the
respondents to meaningfully engage the applicant on these matters,
and, pending same, the court
must interdict and declare unlawful any
disciplinary action which may be taken against the applicant’s
members in relation
to a refusal to work in the absence of PPE’s.
Finally, the applicant requests this court to direct the Minister of
Labour
to exercise his powers in terms of section 21 of the
Occupational Health and Safety Act, 1993 (“OHSA”) to
prohibit
the performance or those duties that endanger the health and
safety of employees.
[4]
At the outset, I must state that this Court (and the respondents)
acknowledge that all health workers
remain in the frontline of the
fight against Covid-19 (and, I dare say, heroically so) and fully
agree that they are entitled to
PPE so that they are not exposed to
avoidable risks. Further, even if not in law, the applicant is an
important social partner
and component in the work of the respondents
against the virus. However, this is a legal dispute, and the
applicant provided no
legal or evidentiary basis for its case.
Nevertheless, as will be shown further on, the Minister of Health and
MECs provided comprehensive
data and documentary evidence which
disproves the factual claims made by the applicant. They demonstrated
that:
(a)
South Africa’s strategy is to prevent the spread of the
pandemic,
rather than to play catch up after the event; a sensible
response given South Africa’s vastly unequal population, where
access
to healthcare for the majority cannot be guaranteed;
(b)
Although there is a national shortage of PPE, the specific hospitals
identified
by the applicant either have no shortage at all, and if
they do, it is not of the type that would warrant this application
because
it can be resolved by making the relevant inquiry and
administratively by simply placing additional orders, or shifting
resources
from the hospitals which have more stock;
(c)
They have instituted a range of measures to deal with shortages of
PPE
and such measures are actually continuing;
(d)
They have issued guidelines on the use of PPE;
(e)
They have taken steps to meaningfully engage trade unions, including
the
applicant on measures to mitigate the virus, and
(f)
The applicant knows about the above initiatives.
The withdrawal of the
application
[5]
On Friday, 3 April 2020, the applicant filed this application on an
urgent basis, to be heard on Tuesday,
7 April 2020. The applicant
required the respondents to file their opposing papers by 4pm on
Sunday, 5 April 2020. The respondents,
for good reason, only managed
to file same Monday night, 6 April 2020.
[2]
As a consequence the parties agreed that the matter would be heard at
2pm on Tuesday, 7 April 2020 to give the applicant an opportunity
to
consider a reply. However, at 2pm the applicant asked for the matter
to be adjourned to 8 April 2020. Despite opposition from
the
respondents, I granted the application. On the morning of 8 April
2020, the applicant attempted to withdraw its application,
with no
tender of costs.
[6]
After hearing argument on the matter, I agreed with counsel for the
respondents that a determination
on especially the factual
allegations is in the interests of justice.
[3]
T
he
allegations raised by the applicant, by their very nature and at this
particular time, deserve evaluation and determination so
that all
parties to this dispute – and the public at large – are
not left with an impression that a ‘technicality’
interrupted the truth emerging on whether doctors and nurses at
public facilities have sufficient PPE.
[4]
Shortage/No Supply of
PPE
[7]
Is there evidence that the Minister and MECs are failing to provide
PPE in the hospitals
and clinics cited by the applicant? I set out
the pertinent factual allegations together with the Minister of
Health’s response
[5]
province by province. I determined it important to set them out in
detail.
Limpopo
[8]
The applicant alleges that at Kennedy Phalanda Hospital, doctors,
nurses, assistant
nurses, porters, cleaners and administrators are
not provided with N95 masks.
[9]
The Minister of health replies that there are no records of such a
hospital existing
in Limpopo province. The Minister further asserts
that there is currently stock of PPE across all facilities in
Limpopo. In particular,
he states there is a sufficient ‘buffer’
amount of masks in the province.
KwaZulu-Natal
[10]
The applicant alleges that at Madadeni Regional Hospitals; Dundee
District Hospital and EMS,
nurses, assistant nurses, doctors, porter,
cleaners and administrators are not provided with gowns and the
department of health
has not provided an explanation for this
violation of safety standards.
[11]
In reply, the Minister distinguishes between masks used by frontline
staff and those used after
a positive COVID-19 diagnosis has been
made. He concedes high usage of both items but states that claims of
shortages are exaggerated
in that, on 3 April 2020, more than 100 000
ordinary masks were delivered to Kwazulu-Natal, sufficient to meet
demand.
[12]
He further states that 7500 units of specialised masks used when
dealing with infected patients
(known as N95s) have also been
delivered to Kwazulu-Natal.
[13]
He asserts that there has been no reported pressure on the demand for
gowns in Kwazulu-Natal.
However, he avers that the provincial health
MEC has put into place measures to ensure that where facilities have
an oversupply,
these are redistributed to those facilities that do
not have sufficient supply. The Minister states that there is
sufficient stock
of all other COVID-required PPE.
[14]
The Minister disputes the claim that, at Dundee, Madadeni and EMS
hospitals, there is a shortage
of gowns (a term used to describe both
aprons and specialized body-suits). He concedes that while there is
no existing shortage,
there is pressure on the supply of gowns which
has been mitigated by orders for new supply and deliveries are
pending.
[15]
Importantly, the Minister states that, “notwithstanding any
pressures on supply of PPE,
no health worker is expected to treat any
Covid-19 patient without the necessary and required PPE.”
Free State
[16]
The applicant alleges that at Manapo, Elizabeth Ross, and Dithlabeng
Hospitals nurses, assistant
nurses, doctors, porter, cleaners and
administrators, have not been provided with gowns and no reasons have
been given for this.
[17]
The Minister of Health answers
that
COVID-19 patients are not treated at these three hospitals. They are
instead treated at Universitas and Pelonomi hospitals.
He avers that
these hospitals are properly stocked up with all the PPE equipment
that they may require.
Mpumalanga
[18]
The applicant alleges that at Mathibe, Mkhondo, Mamatlale, Middleburg
and EMS Hospitals no gowns
and masks have been provided to address
COVID-19 safety concerns. The reasons given by the Chief Executive
Officers of these facilities,
is that “
they are
under-resourced
” (original emphasis).
[19]
The
Minister states that surgical masks
have been provided to staff at Mamatlale and Middleburg Hospitals.
The same applies to N95 masks
used for patients with symptoms of
COVID-19 or other respiratory problems such as tuberculosis.
[20]
He states that there are sufficient aprons but that no full-body
gowns are needed at present
as these are required for staff treating
infected patients, whereas Mamatlale and Middelburg hospitals neither
test nor treat COVID-19
patients.
[21]
He concedes a pressure on supply of surgical masks but the stock is
to be replenished this week.
[22]
In relation to Mkhondo Hospital, the Minister attests to a
sufficiency of PPE. Full-body gowns
are not needed at this facility
as they are reserved for those treating patients for Covid-19 which
does not happen at Mkhondo
Hospital.
[23]
The Minister states that, in Mpumalanga, Covid-19 testing is done at
Rob Ferreira, Ermelo and
Temba hospitals. No other hospitals,
including the ones cited by NEHAWU, do any Covid-19 testing. The
hospitals that perform testing
require gloves, goggles, masks and
aprons, which the Minister claims are fully supplied at these
facilities and staff at these
facilities are accordingly fully
equipped to conduct the testing safely. He makes the point that
surgical masks (and not N95 masks)
“are required for testing
(according to clinical judgment)”.
[24]
An averment that bears noting in assessing the allegation of PPE
shortages in Mpumalanga is that
there are only 18 confirmed cases of
Covid-19 at the present time (8 April 2020). In all of these cases
the patients only display
mild symptoms and accordingly “none
of them even qualify to be admitted to any of the designated health
care facilities.”
The Minister states that 16 of these persons
are self-isolating. Two have been isolated at a care facility with
all the necessary
equipment for treatment.
Northern
Cape
[25]
The applicant alleges that at Tswaragani Hospital, Kagiso Public
Health and Olifanthoek Community
Health Clinic staff are not provided
with gloves and masks and are provided with insufficient sanitizers.
The reasons allegedly
given by the Chief Executive Officers at these
facilities is that there is a shortage of supply of PPE because of
procurement processes.
Additionally, at EMS and John Taolo Gaetsewe
facilities no protective eye protection, no N95 respirators and no
A40 suits are provided
to employees. The applicant further asserts
that cleaners in health facilities across the province are not
provided with cleaning
gloves and boots.
[26]
The Minister disputes that hand-sanitisers, gloves and masks have not
been provided to staff
at Tswaragano Hospital, Kagiso Public Health
and Olifantshoek Community Health Clinics. He states that there is a
sufficient supply
of these materials.
[27]
He further disputes the allegation that employees at EMS and John
Taolou Gaetsewe are deprived
of eye protection, N95 respirators and
A40 suits. He states that all the staff there have been provided with
the necessary PPE,
in accordance with the World Health Organisation
(WHO) guidelines.
[28]
He states all cleaners across the province have been provided with
protective gloves to conduct
their tasks. On the supply of boots, the
Minister states that this is not clinically required and therefore
boots are not issued
to general cleaners across the wards. However,
those cleaners that may be cleaning in higher risk areas, are issued
with boots.
Gauteng
[29]
The applicant states that at Ekurhuleni Sizwe Tropical Diseases
Hospital, there are no gloves
and masks for nurses, assistant nurses,
doctors, porter, cleaners and administrators; at Thelle Mogoerane
Regional Hospital, there
are no gloves, masks and sanitizers; at
Ekurhuleni District Health (clinics), there is a short supply of
masks, gloves and sanitizers.
In addition, there are no aprons, hand
soaps, boots and special clothing for general workers; at Far East
Rand Regional Hospital,
there are no gloves, masks and sanitizers for
all categories of staff except nurses; at Sebokeng Hospital, there
are no gloves,
masks and sanitizers for all categories of staff
except for nurses. Additionally, nurses at Sebokeng Hospital are not
trained to
handle Covid-19 patients and at Rahima Hospital, there are
no gloves, masks and sanitizers.
[30]
The Minister denies these allegations.
At
Ekurhuleni Sizwe Tropical Diseases Hospital, there are no current
shortages of masks, gloves, aprons or sanitisers. He points
out that,
even in the absence of COVID-19, this hospital cannot operate without
gloves and masks as it deals specifically with
tuberculosis and other
respiratory diseases. An inherent feature of this hospital’s
ordinary functioning is that PPE is on
hand. The Minister concedes
that there would be a significant constraint on supply if the
additional orders for PPE items are not
delivered when expected.
[31]
At Thelie Mogoerane Regional Hospital the following quantities of the
specified PPE are available:
245 N95 masks, 4359 unsterile gloves and
228 sanitizers.
[32]
At Rahima Moosa, the following quantities of the specified PPE are
available: 2205 N95 masks,
with 9450 ordered pending delivery, 1228
sanitisers, with 5000 ordered pending delivery, and 91300 gloves with
290 000 ordered
pending delivery.
[33]
At Far East Rand Hospital, the following quantities of the specified
PPE are available: 702 surgical
masks, 250 surgical gloves, 16 boxes
of unsterile gloves, and 96 heavy duty gloves.
[34]
The Minister avers that a problem has arisen with some staff members
at the above-named facilities
who are clinically not meant to receive
certain items of PPE but who are demanding same. He claims that the
Gauteng health department
issues PPE in accordance with the WHO
guidelines. In terms of these guidelines, communicated to labour,
staff at “the effective
reception area need not be fully suited
compared to those that are involved in the actual treatment or
testing. However, this is
for instance being demanded by such staff.
Where there is pressure on demand of PPE, it needs to be issued
strictly in accordance
with the WHO guidelines. This means that each
category of staff is issued PPE in accordance with the level of
exposure of their
job category.”
[35]
The Minister further attests that strict health and safety controls
related to the supply of
PPE are in place: “This means that the
reception area for example would only be opened if there is
sufficient PPE for the
staff working in that area. Further, patients
will not be transferred to the wards without the wards having
sufficient PPE for
their purposes. This is an inherent built in
safe-guard at these hospitals.”
[36]
The Minister affirms that the majority of Gauteng’s 690 cases
of confirmed Covid-19 infection
are self-isolating persons. Only
approximately 20 people are hospitalised. Of these, less than half
are in public health facilities.
The public health facility housing
these isolating Covid-19 patients is the Charlotte Maxeke Hospital,
which is fully and properly
resourced to receive patients. The
Tembisa hospital is also building up its capacity so that, “if
the need arises it can
also treat these patients should the numbers
continue to rise.”
Eastern
Cape
[37]
The applicant states that at Komani Hospital, there are no masks,
sanitizers and gloves, at Aliwal
North Mpilisweni Hospital, there is
a shortage of sanitizers, gloves and plastic aprons, at Aliwal North
Ureka, Khayamnandi and
Thembisa Clinics and at Matatiele’s
Maluti Community Health Clinic, there are no gloves, masks and
sanitizers and at all
Public Hospitals and clinics at King Sabatha
Dalindyebo, there are no face masks, gloves, sanitizers. Only doctors
are provided
with these items.
[38]
The Minister replies that owing to the vastness of the province and
its rural location, there
are problems in communicating and delivery
of items. Despite these problems, at Komani hospital, the required
PPE items have been
delivered in the following quantities: Surgical
gloves, non-sterile: 112 boxes, Surgical gloves: sterile: 525 pairs,
Surgical masks:
200 pieces, N95 respirators: 1225 and Green gloves
long sleeves: 50 pieces.
[39]
At Aliwal-North: Empilisweni Hospital, there is no basis for the
claim of PPE shortages. During
the week of 30 March 2020, the
following quantities were delivered: 150L of sanitisers; 590 boxes of
33 gloves; 610 plastic aprons
were issued.
[40]
At Ureka clinic, the following quantities of the specified PPE are
available: 700 gloves, 120
masks, and a bulk supply of
hand-sanitisers issued for the whole district.
[41]
At Khayamnandi clinic, the following quantities of the specified PPE
are available: 300 gloves,
82 masks, and access to the bulk supply of
hand-sanitisers issued to the district.
[42]
At Matatiele – Maluti CHC, the following quantities of the
specified PPE are available:
1000 gloves, 210 units of masks, and
access to the bulk supply of hand sanitisers issued to the district.
[43]
At Thembisa clinic, the following quantities of the specified PPE are
available: 500 gloves,
15 boxes of masks, and a bulk supply of
hand-sanitisers for decanting and distribution.
[44]
The Minister notes that the allegations pertaining to the “whole
of the Sabata Dalindyebo
district” are difficult to reply to
because they lack specificity. However, he avers that across the
Eastern Cape province
the following additional PPE has been ordered:
103 190 N95 gloves, 10 000 surgical gloves; 17 000 gowns; 79 100
aprons, 2 610 heavy
duty gloves, 239 400 natural rubber gloves, and
26 000 Nitrile Rubber Latex gloves.
[45]
The Minister makes the further averment that the Eastern Cape’s
Health Superintendent-General
has issued Guidelines setting out what
PPE each category of employee ought to be issued with. He states that
this indicates a directive
that no employee be instructed or expected
to work without appropriate PPE.
North West Province
and the Western Cape
[46]
Despite citing the MECs for Health as respondents, the applicant
makes no allegations relating
to the Western Cape and North West
Province.
South Africa in
General
[47]
In his affidavit, the Minister of Health states that “
there
is in fact enough stock in the hospitals concern[ed], and if there is
any shortage, it can be resolved easily”. He also
avers that
“
no individual working in the health
sector is made to work without being provided with the necessary and
requisite PPE. What is
necessary and required is determined with
reference to the WHO guidelines, and on the simple request of staff
members.”
Analysis of PPE
shortage allegations
[48]
The applicant’s allegations of PPE shortages in hospitals that
unduly expose its members
to COVID-19 infection weigh up poorly
against the respondents’ denials. It is apparent from the
above, considering the inherent
strength of the applicant’s
claims, many of which are hearsay or unsourced, as well as after
applying the
Plascon Evans
rule to the totality of the evidence, that the applicant has not come
close to establishing its central contention that, at the
time it
launched its application, there was a shortage of PPE at public
health facilities warranting the relief it sought.
Meaningful engagement
[49]
The applicant seeks a
mandamus
compelling the Minister of Health and
the MECs to consult it on issues connected to the pandemic. A refusal
or failure to consult
in these circumstances may be bad social
partnership or human resources but the applicant could point to no
legal norm that was
breached, assuming these respondents had refused
to consult it. Factually too, it is far from proven that the
applicant was denied
the opportunity to be involved in discussions on
the pandemic that it now seeks from the respondents by way of a
mandamus
.
It is not necessary to traverse the opposing versions on this
question in as much detail as with the dispute concerning PPE. 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.
Directing the Third
Respondent to exercise his powers in terms of OHSA
[50]
The relief sought by the applicant is misconceived in fact and law.
It is evident from the founding
affidavit that it is not the
applicant’s case that the Minister of Labour has not done
anything that is expected in terms
of the Act. The case in the
founding affidavit is really against the other respondents and about
seeking a meeting with the first
respondent.
[51]
In any event, it is clear from a reading of the provisions of the
OHSA that the powers of the
Minister can only be exercised in
circumstances where the Minister is advised of hazards which threaten
the health and safety of
the employees, through complaints which
would have been registered with Inspectors designated by the Minster
in terms of section
28 of the OHSA and once all interested and
affected parties have been afforded an opportunity to make
representations in writing.
According to the Minister, he received no
such complaints or applications.
[52]
In addition, in the case of
PSA
obo members v Minster of Health and Others
,
[6]
this court held that in so far as the OHSA is concerned s35(2)
provides that the Labour Court is constituted as an appellate court
in respect of decisions taken by the chief inspector in terms of
s35(1) of the said Act. The court held further that it does not
have
the jurisdiction to directly enforce any of the general duties of the
employer established by s 8 of the Act, as a court of
first instance.
[53]
The fourth to twelfth respondents’ core functions in terms of
service delivery is to provide
health care for patients. Their staff
are essential service providers who are exposed to health risks in
providing these services,
particularly during the Covid-19 pandemic.
The third respondent can only exercise its discretion if these
respondents have failed
to take reasonable steps to minimise the risk
of its frontline and support workers from being infected with the
coronavirus. In
the case of
Jobert
v Buscor Limited
,
[7]
the court held that an employer cannot be held liable for an employee
who was injured on duty if such employer had taken reasonable
care to
prevent the risk of any illness or injuries at its workplace.
[54]
As the facts demonstrate, no real evidence was provided to this court
that these respondents
are failing to take reasonable steps in
minimising the risk of infection to their health workers and support
staff working on the
frontline against the coronavirus.
Interdicting
disciplinary action
[55]
Paragraph 4 of the notice of motion asked for an order that pending
meaningful engagement with
the applicant, its members shall not be
compelled to render services without PPE and shall not be threatened
or subjected to disciplinary
measures for refusing to carry out
functions without the appropriate PPE.
[56]
No facts are cited regarding any employees who have been threatened
with dismissals related to
refusal to perform their duties due to a
lack of PPE. The court cannot grant a global ruling that employers
cannot take disciplinary
action against NEHAWU’s members who
refuse to treat patients because in their opinion they do not have
appropriate PPE. The
relief sought is thus abstract and can be
dismissed for this reason alone.
Costs
[57]
It is true that the Labour Court is ordinarily reticent to award
costs in employment disputes,
guided by the interests of justice and
equity. It may, at first glance seem that the applicant, having
raised matters of life and
death importance to its members
specifically, and of interest to the public generally, should be all
the more exempt from an adverse
costs order. However, that assessment
is, in my view, short-sighted and anachronistic in the present
circumstances. Legal points
aside, the applicant had a very poor
factual basis to drag all the twelve respondents to court.
[58]
Indeed, a consideration of its allegations that the Minister and MECs
had refused to consult
with the union reveal that the conduct of its
own officials likely played a far greater role in damaging the
‘social partnership’
it professes to display in seeking
consultation. The insistence of meeting the Minister himself on or
about 30 March 2020 and not
‘only’ the Director-General,
if true, smacks of undue self-importance at the expense of finding
solutions.
[59]
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.
[60]
The Minister of Health pointed out that all the respondents are
before the court at the instance
of the applicant on an urgent basis,
during a lockdown period, when the court has no jurisdiction to hear
it. He states that the
time and resources used to defend the
Applicant’s spurious claims “could and ought to have been
put towards our efforts
in addressing the Covid-19 outbreak. Instead,
for two consecutive days each of the MECs and Heads of Department had
to spend significant
amount of time dealing with this application,
time that they cannot afford as their services and time are required
on the pressing
issue of dealing with Covid-19.
[61]
In my view, 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.
This court is, of course, not in any position whatsoever to dictate
that a spirit of co-operation
must
imbue how parties conduct
themselves or express or advance their interests. But what the court
can do is adjust 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 consumes 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.
________________________________
Benita Whitcher
Judge
REPRESENTATION:
For the Applicant:
Baloyi S SC, with Mosikili T, instructed by Thaanyane Attorneys
For
the Third Respondent: Werkmans Inc
For
the Eleventh Respondent: Kahanovitz C SC, with Williams JL and F.
Rodriques, instructed by State Attorney, Cape Town
For
the remaining Respondents: Ngcukaitobi T SC, with Peer Y, instructed
by State Attorney, Pretoria
[1]
I
awarded costs in favour of the first respondent only, in light of
the considerable amount of ground work it employed in opposing
this
application.
[2]
The
opposing papers are substantial.
[3]
The
Court has a discretion notwithstanding the withdrawal of a matter
after the commencement of proceedings to continue to decide
the
matter on the merits after proceedings have commenced. The question
of injustice to the other parties is germane to the exercise
of the
Court’s discretion. In
Karroo
Meat Exchange Ltd v Mtwazi
1967 (3) SA 356
(C) 1967 (3) SA
356
the
Court reasoned that injustice would be done if the plaintiff, on a
whim, could withdraw the proceedings in circumstances where
the
reputation of the defendant has been attacked. See also:
Higgins
v Ryan, NO and others 1978 (1) SA 216 (R).
[4]
There
were various technical issues with the application.
[5]
The
Minister of Health’s response encompassed the replies of each
individual Health MEC Respondent, except the MEC for Health
in the
Western Cape, who was separately represented. The Minister of Health
states in his affidavit that its contents are also
the product of
his personally interviewing every Health MEC and Head of Department
but for the Western Cape.
[6]
[2019]
1 BLLR (LC) 71.
[7]
(2013/131160
[2016] ZAGPPHC (9 December 2016).