Minister of Health and Another v Solidarity Trade Union and Others (61844/2021) [2022] ZAGPPHC 907 (15 November 2022)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NUMBER : 61844/2021

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES NO

REVISED

15/11/2022

In the matter between:

THE MINISTER OF HEALTH

1st Applicant

THE DIRECTOR-GENERAL NATIONAL

DEPARTMENT OF HEALTH

2nd Applicant

and

SOLIDARITY TRADE UNION

1st Respondent

THE LIONS OF SOUTH AFRICAN

INDEPENDENT PRACTITIONERS ASSOCIATION 2nd Respondent

THE SOUTH AFRICAN PRIVATE

3rd Respondent

PRACTITIONER FORUM

BARBARA PRETORIUS

4th Respondent

CHRISTA ROLEEN

5th Respondent

BREAAN SPIES

6th Respondent

ANJA HEYNZ

7th Respondent

In re:

SOLIDARITY TRADE UNION AND SIX OTHERS

Applicants

MINISTER OF HEALTH AND TWO OTHERS Respondents

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by e-mail. The date for hand-down is deemed to be on 15 NOVEMBER 2022.

JUDGMENT

VAN HEERDEN AJ

[1] When this matter commenced, this Court had the following prima facie concern, namely:

1. Can this Court hear an application for rescission where the subject judgment of such rescission i.e. the Bokakoa-Judgment, is currently pending finalisation by virtue of the confirmation thereof in terms of section 167(5) of the Constitution, at the Constitutional Court.

[2] It was only during argument that this Court was made aware of the fact that the Constitutional Court, on 26 October 2022 issued the following Directions:

“1 The parties are directed to file written submissions of no more than 20 pages addressing the following issues:

(a) whether it is competent for the High Court to rescind its order of constitutional invalidity, where such an order has no force or effect in terms of section 172(2)(a) of the Constitution.

(b) whether it is in the interest of justice to grant the stay application where the respondents can raise, in answering affidavit in the confirmation proceedings in this court, (the Constitutional Court) the points they would have raised in the High Court.

2. Written submissions must be filed by

(a) the applicants, on/or before Wednesday, 2 November 2022; and

(b) the respondents, on/or before Wednesday, 9 November 2022.

3 Further directions may be issued. "

[3] This Court is of the view that it may not entertain the rescission application pending finalisation of either:

1. The current processes in terms of the Constitutional Court's Directions; and/or

2. The process as contemplated in section 167(5) of the Constitution

COST

[4] This Court was only made aware of the Constitutional Court's Directives during argument on the day of the hearing.

[5] It would have assisted this Court greatly had it been made aware of the Constitutional Court's Directives earlier for purposes of which this Court could also have engaged the Constitutional Court in obtaining specific Directives in dealing with the current application, under these somewhat novel circumstances.

[6] Therefore, the respondents should not be out of pocket and can certainly not be blamed for the rescission application not proceeding. The applicants should as a result pay the cost.

[7] Accordingly the following order is made:

1. The matter is postponed sine die pending:

1 .1 finalisation of the processes pertaining to the Constitutional Court's Directives; and

1 .2 the process as contemplated in section 167(5) of the Constitution.

2. The applicants are ordered to pay the cost.

D.J VAN HEERDEN

ACTING JUDGE OF THE HIGH COURT

APPEARANCES

For the applicants: Adv

ZZ Matebese SC

With him Adv NS Mteto

Instructed by: N

Qongqo of the State Attorney, Pretoria

For the respondents: Adv

M Davel

Instructed by: SVS

Attorneys

Date of hearing: 15

November 2022

Date of judgment: 15

November 2022