Strike: Govt 'being punished'

2007-06-21 21:14

Cape Town - An application for the reinstatement of health workers dismissed during the public servants strike sought to punish a government that was trying to restore order, the State argued in the Cape High Court on Thursday.

"We have been berated for taking action in a chaotic situation," said Dumisa Ntsebeza, an advocate for the Western Cape government.

Last week, the Treatment Action Campaign and five Khayelitsha residents lodged an urgent application to reverse the dismissal of 41 striking Western Cape health workers because they said it was compromising patients' constitutional rights to health care.

Ntsebeza said the strike itself had caused the deterioration and disruption of services at Khayelitsha clinics, and not the dismissal of the health-care workers.

He said the decision by health workers, who were considered essential services staff, to strike was "morally repugnant".

Judge Siraj Desai said it was "not for the court to decide which is more morally repugnant: whether health-care workers strike or whether they should be paid a living wage".

Labour court order

The key issue of the case, said Judge Desai, was "if there is a duty upon the state to ensure proper healthcare and ensure it is uninterrupted".

Ntsebeza said that the court would be condoning an illegality if it ordered the reinstatement of the workers, as it went against the labour court order that prohibited essential services staff from striking.

Ntsebeza said the government actually acted in the public interest by dismissing the health-care workers.

He said there was evidence that after the dismissals the services improved.

An affidavit by Nompumelelo Mantangana, a clinic manager in Khayelitsha where some staff were dismissed, said the opposite.

Mantangana said "the position (in her clinic) has seriously deteriorated since the dismissal of workers".

She also said that, as a unit manager, she had never been issued with the court order or an ultimatum to prevent essential services staff from striking to distribute to other staff.

Haven't filed any affidavits

Earlier on Thursday the applicants' advocate, Peter Hodes, told a packed courtroom - including TAC chairperson Zackie Achmat and TAC supporters - that not one of the dismissed workers had committed any of the offences the provincial health department had set out as grounds for dismissal.

These, he said, included intimidating colleagues who wanted to work or patients trying to enter a health facility, threatening or attacking non-striking workers or visiting working colleagues at their homes and threatening them.

Hodes said the respondents - Western Cape health MEC Pierre Uys, Health Minister Manto Tshabalala-Msimang and Public Service Minister Geraldine Fraser-Moleketi - "have non-suited themselves by failing to file any affidavits at all".

Nurse earning R2 500

When Hodes referred to an affidavit filed by a nurse at a clinic in Khayelitsha, Judge Desai stopped him to ask if it was a mistake that the nurse - employed at the clinic since 1990 - was earning only R2 500.

"That's what the strike's about," Hodes said.

He emphasised that the province was using the public service strike as a "pretext" for the dismissals, and that the TAC's application did not concern the legality of the strike itself.

The hearing continues on Friday at 14:15.

- SAPA