Solidarity, SAPPF sticking to their guns about CoN’s unconstitutionality

Strachan was echoing trade union Solidarity’s position that this week's ruling was only aimed at offering Health Minister, Dr Joe Phaahla, the opportunity to state his case in court after claims by the Department of Health that the minister was not adequately informed about last year’s legal action that was brought by Solidarity, the SAPPF, Asaipa and individual doctors.  

In her ruling in June 2022, Judge Thembi Bokako castigated the Health Department, the President and the State Attorney’s office for not opposing the application or even telling the court that they are going to oppose it. She said it was a strong sign that the law, that will tell doctors where to work, was unjustifiable “when the state was unwilling to defend its legislation and “unaccountably refused to participate in these proceedings”.

The Health Department however maintains that it was unaware of the application and has come back with blazing guns applying to both the Constitutional Court and the High Court to revoke the ruling that sections 36-40 of the Health Act should be set aside. The ConCourt then referred the case to the High Court to decide whether Judge Bokako’s ruling should be rescinded.

Minister should be allowed to defend his position in court

In her ruling, Judge Brenda Neukircher concurred with the Department that the Minister was not properly informed and that he should be allowed to defend his position in court. She argued that Solidarity and its co-applicants didn’t comply with court rules on how papers should be served on a respondent.

Apparently, the sheriff of the court who served the papers on the Minister was told by the receptionist in his office that there was no one to receive the papers after which he left. Neukircher added that emails sent by the respondents’ legal team to were not enough to “initiate proceedings under rule 4(1)(a) of the uniform rules of court”.

Contributing to doctors leaving SA

Solidarity spokesperson Perriu Marx said the organisation’s position remained unchanged and that the decision to revoke last year’s ruling was part of “the normal process and that it was clear that the court afforded the department a chance to state its position because a final ruling on the CoN will be in national interest.

However, he stressed that Solidarity is sticking to its position that the CoN is unconstitutional and will make no further arguments to the court.

“We have challenged it on four grounds – that it is irrational, contravenes the separation of power, is unconstitutional and that the criteria are prohibitively vague. That is not going to change, and our seven applicants will remain exactly the same,” Marx told MedBrief Africa.

The latest ruling on the CoN is another blow for doctors after the passing of the NHI Bill by Parliament despite warnings that it could further destabilise the country's struggling health system. In an interview on kykNET earlier this week, Dr Strachan said anecdotal evidence shows that South African doctors are leaving the country in ‘plane loads’.

Speaking to MedBrief Africa last year, he stressed that although doctors acknowledge that more healthcare providers are required in rural areas, the vehicle to achieve it was not the CoN.

“If we are going to have healthcare providers entering rural areas, the working conditions have to change to make them more favourable. There should be some level of infrastructure and support and job security and opportunities for families. It is a massive task, but it does start at the ground level to ensure that patients get the healthcare they require,” Dr Strachan then said.

According to a former SAMA chairperson, Dr Mzukisi Gootboom, “We all know what needs to be done, but we’re not hearing each other. It’s like a dialogue of the deaf. We implement things that pit us against each other. It’s a reflection of the kind and quality of legal professional advice they, (the NDOH), are getting.

“The very intention of improving access may deny it, as doctors suddenly find themselves without licenses and unable to practice – we cannot understand why government would promulgate a section of the law which they know is unconstitutional.”