Labour court refuses to allow Nehawu to withdraw case on protective gear

The labour court on Wednesday refused to allow the National Education, Health and Allied Workers Union (Nehawu) to withdraw its urgent case over protective gear for health workers. Instead Judge Benita Whitcher dismissed the case, saying she would give reasons at a later stage.

Her decision followed arguments from Health Minister Zweli Mkhize and Western Cape health MEC Nomafrench Mbombo — that the court should vindicate them by insisting that the case be heard — despite a notice from Nehawu that it was withdrawing its case, which arrived late on Tuesday night.

Nehawu had gone urgently to the labour court, saying the health and lives of healthcare workers were at risk because they were not being provided with personal protective equipment for dealing with Covid-19. In an affidavit, the union’s secretary general, Zola Saphetha, listed hospitals and clinics around the country at which he said there were shortages of protective gear. 

Sapthetha also said attempts by the union to hold discussions with Mkhize, his department and the provincial health departments had been “rebuffed”.

But in an answering affidavit, Mkhize disputed the claims, saying that Saphetha was not aware of the facts on the ground. The minister said he had checked each province and every hospital Saphetha had referred to and “in each case, comprehensive data has been produced, which disproves the claims made by Nehawu”. Mkhize also disputed that he had rebuffed the union’s attempts to meet him.

On Wednesday morning, the labour court heard argument virtually — through Skype — on whether the union should be allowed to withdraw the case. Counsel for Mbombo, Colin Kahanovitz SC, argued that the judge had discretion whether to allow it. He argued that Nehawu had made serious allegations against the national and provincial health departments and they were entitled to a finding by the court.

Mkhize’s counsel, Tembeka Ngcukaitobi SC, said Nehawu had gone to court with a case that was without any factual foundation. They should not be allowed to simply walk away from it. The case was “nothing but an abuse. It was in the category of grandstanding,” he said.

Counsel for Nehawu, Sesi Baloyi SC, argued that there was no discretion on the part of the judge to refuse the withdrawal. A withdrawal should, in any event, be sufficient vindication for the health departments, she said.

Witcher found in favour of the government and dismissed the case with costs. 

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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