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Case law of Nehawu vs Minister of Health
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lOMoARcPSD|4079685Nehawu obo Members providing Essential Health Services v
Minister of Health
Labour Law (University of the Free State)
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Downloaded by TEBOHO MOFOKENG (rteboho.mofokeng@yahoo.com)
, lOMoARcPSD|4079685
Source:
Labour Library/Industrial Law Journal/Law Reports/Chronological listing/2020/July/National Education Health & Allied Workers Union on behalf of Members Providing
Essential Health Services v Minister of Health & Others (2020) 41 ILJ 1724 (LC)
URL:
http://jutastat.juta.co.za/nxt/gateway.dll/iljn/inlj/3/4/5/116/123?f=templates$fn=default.htm
National Education Health & Allied Workers Union on behalf of Members Providing Essential Health Services v Minister of Health &
Others (2020) 41 ILJ 1724 (LC)
2020 ILJ p1724
Citation (2020) 41 ILJ 1724 (LC)
Case No J423/2020
Court Labour Court
Judge Whitcher J
Heard April 8, 2020
Judgment April 11, 2020
Counsel Adv S Baloyi SC (with Adv T Mosikili) for the applicant.
Adv C Kahanovitz SC (with Adv J L Williams SC and
Adv F Rodriques) for the eleventh respondent.
Adv T Ngcukaitobi SC (with Adv Y Peer) for the
remaining respondents.
Annotations No annotations to date
Flynote : Sleutelwoorde
Costs—Labour Court—Role of court to adjust standard of what constitutes frivolous and vexatious conduct in litigation—Court will penalise party taking untenable
legal points, using court process as powerplays, unnecessarily consuming resources of opponents or making allegations it cannot substantiate.
Health and safety—Covid19—Occupational Health and Safety Act 85 of 1993—Powers of Minister of Labour—Powers can only be exercised in circumstances
where minister advised of hazards which threaten health and safety of employees, through complaints registered with inspectors designated in terms of s 28 and
once all interested and affected parties afforded opportunity to make representations in writing.
Health and safety—Covid19—Provision of personal protective equipment to health workers—Union not establishing shortage of PPE at public health facilities
warranting relief it sought—Urgent application dismissed.
Health and safety—Occupational Health and Safety Act 85 of 1993—Powers of Minister of Labour—Powers can only be exercised in circumstances where minister
advised of hazards which threaten health and safety of employees, through complaints registered with inspectors designated in terms of s 28 and once all
interested and affected parties afforded opportunity to make representations in writing.
Health and safety—Occupational Health and Safety Act 85 of 1993—Section 35(1)—Labour Court constituted as appellate court in respect of decisions taken by
chief inspector—No jurisdiction directly to enforce any general duties of employer established by s 8 of Act as court of first instance.
Labour Court—Jurisdiction—Occupational Health and Safety Act 85 of 1993—Section 35(1)—Labour Court constituted as appellate court in respect of decisions
taken by chief inspector—No jurisdiction directly to enforce any general duties of employer established by s 8 of Act as court of first instance.
Headnote : Kopnota
The applicant union, NEHAWU, brought an urgent application concerning the alleged obligations and omissions of the Minister of Health in
relation to the provision of personal protective equipment (PPE) to health workers in the fight against the coronavirus pandemic (Covid19).
The union claimed that the minister failed to ensure that health workers were provided with PPE, failed to issue guidelines for the use of PPE
and failed meaningfully to engage the union about these issues. The minister and the other respondent MECs for health provided
comprehensive data and documentary evidence which disproved the factual claims made by the union.
The court examined the allegations and evidence in response for each province cited in the papers and concluded that the union did not come
close to establishing
2020 ILJ p1725
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.
On the issue of meaningful engagement, the union sought a mandamus compelling the minister and the MECs to consult it on issues connected
to the pandemic. The court found that neither was a legal norm breached in this regard, nor was it factually proved that the union had been
denied the opportunity to be involved in discussions.
In relation to the relief sought by the union against the third respondent Minister of Labour in terms of the Occupational Health and Safety Act
85 of 1993, the court found that the relief sought to direct the minister to exercise his powers was misconceived in fact and in law. The
court found further that it was 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 s 28 of the OHSA and once all interested and affected
parties have been afforded an opportunity to make representations in writing. The minister received no such complaints.
The court further found that it was bound by an earlier decision which determined that the Labour Court is constituted as an appellate court in
respect of decisions taken by the chief inspector in terms of s 35(1) of the OHSA. The court held further that it does not have jurisdiction
directly to enforce any of the general duties of the employer established by s 8 of the Act, as a court of first instance. Furthermore, no real
evidence was provided to the court that these respondents were 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.
On the issue of costs, the court expressed its displeasure at the conduct of the union and defined its role to adjust the standard of what
constitutes frivolous and vexatious conduct in litigation. The court noted that it could penalise those who elect to pursue obviously
untenable legal points, use the court process as part of other powerplays, unnecessarily consume the resources of their opponents or make
allegations they cannot substantiate, with the risk of a costs order should they lose.
The application was accordingly dismissed, with costs.
Case information
Urgent
© 2018 Juta application
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: Fri Aug 2020 06:53:48 GMT+0200 (South Africa Standard Time)
Downloaded by TEBOHO MOFOKENG (rteboho.mofokeng@yahoo.com)
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