In her written judgment released on Saturday, Judge Benita Whitcher said that on April 8, notwithstanding a withdrawal of the matter, she had dismissed the application with costs on the basis that Nehawu had failed to make out a case on the law and facts. 

"The applicant’s [Nehawu} 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)," she said.

In the main, Nehawu had claimed that the minister had failed to ensure that health workers were provided with PPE, had failed to issue guidelines for the use of PPE, and had failed to meaningfully engage the applicant about these issues.

The minister of health and nine health MECs had provided comprehensive data and documentary evidence which disproved the factual claims made by Nehawu. They had demonstrated that:

- Although there was a national shortage of PPE, the specific hospitals identified by the applicant either had no shortage at all, and if they did, it was not of the type that would warrant this application because it could be resolved by making the relevant inquiry and administratively by simply placing additional orders, or shifting resources from the hospitals which had more stock;

- They had instituted a range of measures to deal with shortages of PPE and such measures were actually continuing;

- They had issued guidelines on the use of PPE;

- They had taken steps to meaningfully engage trade unions, including Nehawu, on measures to mitigate the virus; and

- Nehawu knew about the above initiatives.

In his affidavit, the minister stated that there was in fact enough stock in the hospitals concerned, and if there was any shortage, it could be resolved easily. He also stated 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 [World Health Organisation] guidelines, and on the simple request of staff members".

"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," Whitcher said.

It was also far from proven that Nehawu was denied the opportunity to be involved in discussions on the pandemic. "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," she said.

Regarding the costs order, Whitcher said it was true that the Labour Court was 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.

"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," she said.

"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."

The minister had pointed out that all the respondents were before the court at the instance of the applicant on an urgent basis, during a lockdown period, when the court had no jurisdiction to hear it. He stated 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 amounts of time dealing with this application, time that they could not afford, as their services and time were required on the pressing issue of dealing with Covid-19.

"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," she said.

The court was not in any position to dictate that a spirit of co-operation should imbue how parties conducted themselves or expressed or advanced 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," Whitcher said.

African News Agency (ANA)