REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER : 61844/2021
In the matter between:
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THE MINISTER OF HEALTH |
1 st Applicant |
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THE DIRECTOR-GENERAL NATIONAL DEPARTMENT OF HEALTH and |
2nd Applicant |
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SOLIDARITY TRADE UNION |
1 st Respondent |
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THE LIONS OF SOUTH AFRICAN INDEPENDENT PRACTITIONERS ASSOCIATION |
2nd Respondent |
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THE SOUTH AFRICAN PRIVATE |
3rd Respondent |
PRACTITIONER FORUM
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BARBARA PRETORIUS |
4th Respondent |
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CHRISTA ROLEEN |
5th Respondent |
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BREAAN SPIES |
6th Respondent |
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ANJA HEYNZ In re: |
7th Respondent |
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SOLIDARITY TRADE UNION AND SIX OTHERS and |
Applicants |
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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
When this matter commenced, this Court had the following prima facie concern, namely:
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.
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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:
The parties are directed to file written submissions of no more than 20 pages addressing the following issues:
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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. -
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.
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2. Written submissions must be filed by
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. "
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This Court is of the view that it may not entertain the rescission application pending finalisation of either:
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
This Court was only made aware of the Constitutional Court's Directives during argument on the day of the hearing.
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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. -
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.
[71 Accordingly the following order is made:
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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.
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The applicants are ordered to pay the cost.
GAUTENG DIVISION, PRETORIA
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
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Date of hearing: |
15 November 2022 |
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Date of judgment: |
15 November 2022 |