Tag: court ruling

Categories : Ethics and Law Obstetrics & GynaecologyTags :

Webber Wentzel Secures Landmark Constitutional Court Ruling Reforming South Africa’s Parental Leave Laws

On By ModernMedia
Photograph by Drew Hays on Unsplash

Webber Wentzel’s Pro Bono team represented Mr and Mrs van Wyk in a landmark case that has resulted in the Constitutional Court confirming that South Africa’s statutory four months of parental leave may be shared between both parents. The ruling marks a significant step toward gender equality in the workplace and family law.

The case challenged the unequal parental leave provisions under section 25 of the Basic Conditions of Employment Act (BCEA), which granted birthing mothers up to four months of maternity leave while limiting fathers to only 10 days.

Webber Wentzel argued that section 25 of the BCEA unfairly discriminated against fathers and placed an undue burden on birthing mothers by not allowing families to decide who should be the primary caregiver. The court agreed and criticised the 10-day leave for fathers by rejecting the cultural norms that reinforce gendered parenting roles as inconsistent with constitutional values.

The application was supported by the Commission for Gender Equality (CGE) and Sonke Gender Justice (Sonke). CGE advocated for equal parental leave for adoptive and surrogacy-commissioning parents, which the court partially granted. Sonke’s request for an equal 16-week leave for both parents was not granted.

The Constitutional Court, in a unanimous judgment delivered by the Honourable Justice Tshiqi, confirmed that sections 25, 25A, 25B and 25C of the BCEA, along with corresponding provisions of the Unemployment Insurance Fund Act (UIF Act), are unconstitutional. The Court held that these provisions violate the rights to equality and human dignity under sections 9 and 10 of the Constitution.

The Minister of Employment and Labour accepted that differentiation exists between birthing mothers and other categories of parents is automatically unfair as it is based on grounds specified in section 9(3) of the Constitution. Further, the Minister acknowledges that there is a need for reform in the current legislation pertaining to the parental leave regime contained in the BCEA.

As a result of the ruling in the Constitutional Court, the 4 months of maternal and the 10 days of parental leave will be combined into a total of 4 months and 10 days, which parents may now share as they choose. If no agreement is reached, the leave will be split equally. Where only one parent is employed, that parent will be entitled to the 4 consecutive months of parental leave.

The Constitutional Court also confirmed that the same parental leave provisions apply to adoptive parents and commissioning parents in a surrogacy arrangement.

The Constitutional Court has suspended the declaration of invalidity of the relevant BCEA and UIF Act provisions for a period of 36 months, to allow the legislature to remedy the necessary constitutional defects.  In the interim, the following principles will apply:

  • A single parent or a parent who is the only employed parent is entitled to four months’ consecutive parental leave.
  • Parents who are both employed may share the allocated parental leave of four months and 10 days between them, concurrently or consecutively.
  • An adoptive parent of a child younger than two years is entitled to four months’ consecutive parental leave.
  • If an adoption order is granted in respect of two parents, they may share the allocated parental leave of four months and 10 days between them, concurrently or consecutively.
  • A commissioning parent is entitled to four months’ consecutive parental leave.
  • Where there are two commissioning parents, they may share the allocated parental leave of four months and 10 days between them, concurrently or consecutively.

Employers are encouraged to review and, where necessary, update their leave policies and employment contracts to reflect the new parental leave framework.

“This judgment is a powerful affirmation of the constitutional rights to equality and dignity,” said Nkosinathi Thema, senior associate, Webber Wentzel. “It recognises that caregiving is not the exclusive responsibility of mothers and that both parents should have the freedom to decide how best to care for their child.”

The Webber Wentzel team comprised Ayanda Khumalo, Nkosinathi Thema and Lize-Mari Doubell. Counsel Nasreen Rajab-Budlender SC, Liam Minné and Sanan Mirzoyev appeared on a pro bono basis.

The judgment can be read here.

Ends…

Founded in 1868, Webber Wentzel is a leading full-service law firm providing clients with innovative solutions to their most complex legal and tax issues across Sub-Saharan Africa. With over 450 lawyers, their multi-disciplinary expertise is consistently ranked top tier in leading directories and awards, both in South Africa and on the African continent. Their collaborative alliance with Linklaters and their deep relationships with outstanding law firms across Africa provide clients with market-leading support wherever they do business.

Categories : Ethics and LawTags :

EDITORIAL | The Rot Runs Deep: Gauteng Health’s Dance of Impunity Betrays the People It Is Meant to Serve

On By ModernMedia
Photo by Tingey Injury Law Firm on Unsplash

Spotlight Editors

The courts have spoken. The health ombud has issued devastating reports. The Auditor-General has again put damning evidence on the table. Civil society has protested. Yet, the devastating crisis in Gauteng’s health system shows no sign of improvement.

The rot in Gauteng appears to be deepening. Nowhere is this more evident than in the province’s health department, which remains trapped in a cycle of institutional decay and administrative failure.

The consequences are catastrophic, with real and devastating impacts on lives and the delivery of essential health services.

A case in point is the department’s failure to provide life-saving treatment to cancer patients. In a stunning rebuke, a high court found this failure unlawful and unconstitutional. Rather than comply with its constitutional obligations, Health MEC Nomantu Nkomo-Ralehoko and the health department chose to appeal the judgment to the Supreme Court of Appeal.

Making matters worse, a second high court ruling ordered the department to implement the original judgment. And yet again the department is appealing.

Jack Bloom, a DA MP in Gauteng, suggests that the MEC and the department is fighting so hard because they may eventually be held accountable in a case he says evokes the horrors of the Life Esidimeni tragedy. Bloom may have a point.

The background is dismaying.

Prior to the recent court rulings on cancer care, sustained pressure from activists had helped the department secure a R784 million budget for outsourcing radiation oncology services. But the department returned the first tranche of R250 million to Treasury unspent.

At last count in 2022, more than 3 000 patients were on a waiting list for treatment. Many of them would by now have lost their lives. Others may still be alive, but the optimal time for them to get radiation therapy may have passed and their chances of survival are thus substantially diminished.

That R250 million meant to help these desperate people and families simply went unspent boggles the mind.

It is no doubt too late for many, but there are at least some limited signs of progress. While the department has not been answering Spotlight’s questions, Nkomo-Ralehoko has indicated in the Gauteng legislature that a significant number of cancer patients are being treated with the help of private sector facilities. That the MEC and the department is nevertheless challenging the high court ruling, much of which is a demand for greater transparency, suggests that they know they have at best taken several more steps back than they have taken forward.

Unfortunately, none of this feels new.

For well over a decade, Spotlight and other media have reported on a persistent pattern of institutional breakdown and failed leadership in Gauteng’s public healthcare system. Among the most shocking examples are the Life Esidimeni tragedy, the assassination of whistleblower Babita Deokaran, and the state’s sluggish response to the corruption she exposed. Questions continue to swirl around an impasse over a critical agreement with Wits to bolster healthcare services, senior appointments in the department and the selection of hospital CEOs. The fire at Charlotte Maxeke Johannesburg Academic Hospital and the lack of urgency in restoring services there further underscores the dysfunction. So does the persecution of whistleblowers like Dr Tim de Maayer, and the damning Health Ombud report into conditions at Rahima Moosa Mother and Child Hospital.

And that’s just the tip of the iceberg. Years of chaos in hospital security contracts, questionable food procurement practices, and the department’s failure to supply adequate colostomy bags to patients — the list goes on and on.

Add it all up and it is clear the rot runs very deep.

The reason for this is no mystery. The Gauteng health department has an annual budget of around R67 billion. This is more than 20% of the South African government’s entire spending on health. For the corrupt, the Gauteng health department is an obvious target.

And that it has been systematically targeted is not in doubt. Human rights activist Mark Heywood and Wits University Professor Alex van den Heever reckon that close to R20 billion has been stolen from the Gauteng health department over the past decade. “The scale of this theft makes former President Jacob Zuma look like a clumsy shoplifter,” Heywood writes in the Daily Maverick.

Perhaps the clearest dissection of how deep the rot goes is to be found in investigative journalist Jeff Wicks’ excellent  book The Shadow State: Why Babita Deokaran Had to Die. In it, he unpacks the industrial-scale corruption at Tembisa Hospital where R830 million was siphoned off in just four months by a network of ruthless, well-connected looters. Allegedly, one of the key beneficiaries was Vusimusi “Cat” Matlala, a businessman with a criminal record and close ties not only to ANC bigwigs but also to senior police officials.

Meanwhile, the department is also failing to pay its creditors on time. Recently, City Press reported that Gauteng’s health department was the only provincial department flagged for noncompliance across all audit areas — despite having received a clean audit opinion. Accruals now exceed R8 billion, consuming 12% of the department’s R67 billion budget. “The problems are huge,” admitted Lebogang Maile, Gauteng’s MEC for Treasury and Economic Development.

Whichever way you slice it, the harsh truth is that even in 2025, the devastating crisis in Gauteng’s health system shows no sign of improvement. Corruption still plagues the department just as severely as it did a decade ago, if not more so. In the end, it is the province’s many committed healthcare workers and the people who depend on the public healthcare system who pay the price – whether a cancer patient or someone with a stoma and in need of a reliable supply of colostomy bags.

Where to from here?

Ultimately, the person responsible for fixing all this is Gauteng Premier Panyaza Lesufi. As Premier, he appoints both the province’s MEC for health and the head of its health department. It is because of Lesufi that Nkomo-Ralehoko and head of department Lesiba Malotana are still in place, despite the havoc around them.

From one perspective, it is hard to fathom why an ambitious politician like Lesufi would stand for such gross incompetence. His party, the ANC, has after all already been severely punished at the polls – in 2024 they got just under 35% of the votes in the province. Letting the province’s already eroded health services decay further can only lead to further electoral decline.

It is of course also possible that Lesufi and those around him are being misled, or intentionally not paying much attention, to just how bad things really are. Zuma too insisted that “we have a good story to tell” even as the state capture looters were in full stride. Maybe reality will similarly catch up with Lesufi if he continues faffing about while Rome burns.

After all, the courts have spoken. The health ombud has issued devastating reports. The Auditor-General has again put damning evidence on the table. Civil society has protested time and time again and spoken out in the media. Doctors and nurses have tried to raise issues through the correct channels and have been ignored. Expert help has been offered and declined. Most damningly, whistleblowers have paid with their lives.

Disclosure: SECTION27 is involved in the cancer court case proceedings as well as ongoing efforts seeking justice for the Life Esidimeni tragedy. Spotlight is published by SECTION27, but is editorially independent – an independence that the editors guard jealously. Spotlight is a member of the South African Press Council.

Republished from Spotlight under a Creative Commons licence.

Read the original article.

Categories : Ethics and LawTags :

Carte Blanche “Gagging” Order Overturned

On By ModernMedia
Photo by Bill Oxford on Unsplash

A “gagging order” preventing Carte Blanche from broadcasting a programme about a Durban-based cardiologist accused of malpractice has been set aside.

Pietermaritzburg High Court Judge Siphokazi Jikela has ruled that the finalisation of the interdict, granted in early June by another judge, would “amount to an unjustified prior restraint and would undermine the essential role of the media in a democratic society”.

The matter came before Judge Jikela for determination on whether or not the interim order should be made final.

She has now dismissed the application and ordered cardiologist Dr Ntando Peaceman Duze to pay the costs.

Duze was accused by some of his patients of inserting stents unnecessarily, which resulted in them lodging complaints with the Health Professions Council of South Africa (HPCSA).

Carte Blanche interviewed them and got independent experts to corroborate their claims.

While Carte Blanche gave him multiple opportunities over two weeks to respond to questions, Duze turned to the courts, claiming “defamation” and preventing the airing of the segment. He wanted the interdict to be made final until the HPCSA had ruled on the complaints against him.

The matter was argued before Judge Jikela the following week. She handed down her ruling on Monday.

Read the judgment

Read GroundUp editorial: Judges should respect press freedom

Duze, in his initial application, also cited two other cardiologists as respondents but did not persist with his claims against them.

However, he said the complaints against him were instigated by them because of “professional jealousy”, a “conspiracy” and a “smear campaign”, because of the success of his practice at Westville Life Hospital.

He said he had elected not to respond to Carte Blanche because the questions were “defamatory” and sub judice as the issues were under consideration by the HPCSA.

Carte Blanche opposed the application.

Advocate Warren Shapiro argued that both the Constitutional Court and the Supreme Court of appeal had determined that a “prior restraint” was a drastic interference with freedom of expression, which was only granted in narrow circumstances.

Judge Jikela said that while Duze claimed the broadcast would infringe on his right to dignity and may cause reputational harm, she was mindful that “any restriction on media reporting warrants careful and cautious consideration”.

“Several defences may be raised in response to an allegation of defamation. In this matter, [Carte Blanche] sets out the defences that directly address the core grounds on which [Duze] has based his case.

“Notably they contend that the broadcast in question centres on the personal accounts of his former patients, which are supported by medical records and independent expert opinion. Duze himself states that he consults, on average, 50 patients a day and he treats nearly every heart patient at Westville Life Hospital.

“In these circumstances, there is a compelling public interest in the dissemination of information concerning the conduct of a medical professional whose actions may pose a risk to the health and safety of current and future patients,” Judge Jikela said.

Carte Blanche had also said the intended broadcast included comments made honestly and in good faith which fell within the ambit of protected fair comment.

“It is trite that media publications on matters of public interest enjoy protection, provided they are made reasonably, without malice, and after taking reasonable steps to verify the information prior to publication,” the judge said.

Judge Jikela said Duze’s right to protect his reputation and professional standing was not absolute and it did not trump Carte Blanche’s constitutionally protected right to freedom of expression which includes the freedom of the press.

“Importantly, the public also has a legitimate interest in being informed about matters that concern public health and potential risks to patient safety.”

She said Duze had only made “vague references” to pending hearings and investigations. Duze had to show a real and demonstrable risk of substantial prejudice “as opposed to a remote possibility”.

“The HPCSA is not a court of law. The sub judice rule does not apply automatically to its processes.

“I do not believe that the broadcast will improperly influence the panel of medical professionals tasked with adjudicating the complaints against him, particularly where those complaints are supported by scientific and clinical evidence.”

Turning to the issue of the balance of competing rights, Judge Jikela said Carte Blanche had sought external objective opinions and had given Duze the right to reply.

“Media reports are vital in ensuring transparency, accountability and the protection of the public, particularly in sectors as essential as health care,” she said.

Medical practitioners had a duty to act in the best interests of patients. Where there were breaches of these obligations, the public had a constitutionally protected right to be informed.

“While the right to dignity and reputation must be respected, it cannot be invoked to shield conduct that may endanger lives or compromise patient care,” Judge Jikela said.

She said prior restraint had a “chilling effect” on the right to freedom of expression.

If the broadcast was indeed unlawful or defamatory, Duze could claim damages from Carte Blanche.

“The inconvenience of pursuing a damages claim does not outweigh the importance of safeguarding freedom of expression, particularly where the applicant [Duze] has not demonstrated irreparable harm or the falsity of the statements,” she said.

Republished from GroundUp under a Creative Commons Attribution-NoDerivatives 4.0 International License.

Read the original article.

Categories : Ethics and Law Medical IndustryTags :

High Court Ruling Strikes Down Key Part of NHI Act

On By ModernMedia
Photo by Tingey Injury Law Firm on Unsplash

A key part of the National Health Insurance Act is the requirement of private healthcare facilities to obtain a Certificate of Need (CON) in order to practise. Now it, this component has been struck down by a Pretoria High Court judge. Judge Anthony Millar struck down the Act’s key section, saying that it was “akin to an attempt to indenture the private medical service in the service of the state”.

The case had been brought by the Solidarity Trade Union, the Alliance of South African Practitioner Associations, the South African Private Practitioner Forum, the Hospitals Association of South Africa (HASA) and a number of healthcare providers and owners of healthcare establishments.

Sections 36 to 40 of the NHI Act would introduce a Certificate of Need (CON) scheme, essentially tying down doctors to a specified geographical location, which would be the only location where they could render their services.

It is declared that sections 36 to 40 of the National Health Insurance Act 61 of 2003 are invalid in their entirety and are consequently severed from the Act.

Judge Anthony Millar’s ruling

Any new healthcare facility would have to apply for a CON, which would be valid for 20 years. Existing facilities would have two years’ grace period to apply. This would applicable to hospitals, clinics, pharmacies and even to private rooms set up within the home of the practitioner. Operating without one would be a criminal offence – punishable with a fine, five years in prison or both.

It had been argued that because the regulations for CON had not been promulgated, the applicants’ argument was “hypothetical” and not “crystallized”. In Tuesday’s ruling, Judge Millar cited previous rulings and the constitutionality of the matter was still worth testing.

The CON scheme was extensive, Judge Millar noted, and would impact not only healthcare practitioners who worked in healthcare facilities and their employees, but also “juristic persons“, ie corporations or other organisations that can be legally liable.

Read the judgment here

‘A blunt instrument’

In terms of its constitutionality, the applicants’ argument was that, “at least six constitutional rights are infringed. They say it tramples on their rights including where they want to reside, send their children to school and the communities they belong to.”

Judge Millar noted, would mean that setting up a hospital was a hefty investment of R500 million or so, and there was no provision any support. Taken together with the 20-year CON validity, would serve to discourage private investment and became a “blunt instrument” with which the Director-General of Health could control private healthcare in the country.

Even though this provision was ostensibly to serve many, this could not come at the cost of individual freedoms, among them Section 22 of the Constitution which provided for the freedom to choose an occupation within the rule of law.

“The scheme is silent on the extant rights of both the owners of private health establishments, private healthcare service providers and private healthcare workers. Such extant right include their integration and professional reputations in the communities which they presently serve together with the significant financial investments and commitments made by them to be able to render the services that they do.”

Since health establishments are purpose-built and hard to convert for other use, this constitutes a de facto deprivation, he wrote.

“It does not behove government in pursuing transformation, to trample upon the rights of some ostensibly for the benefit of the many.”

‘Effective indenture’ of private healthcare

While the legal teams for President Cyril Ramaphosa, the minister of health, Dr Aaron Motsoaledi, and the director-general of health, Dr Sandile Buthelezi, argued that the public healthcare sector was overburdened, Judge Millar replied that this amounted to the effective indenture of the private healthcare system.

Among other problems, contesting CON issuance was without recourse and by turning down a certificate the DG could essentially deprive the affected parties of income, as doing so would see them prosecuted under Section 40.

The ruling was welcomed by healthcare professional associations.

As reported in the Daily Maverick, Solidarity chief executive Dr Dirk Hermann said, “This judgment is a major blow to the total NHI [National Health Insurance] idea, as the principle of central management is a core pillar of the NHI Act itself. A more extensive consequence of this ruling with regard to the certificate of need is that parts of the NHI Act are now probably also illegal in principle.

“The NHI in its current format cannot be implemented as the essence of the NHI is central planning – and this has now been found unconstitutional.” 

In a statement, HASA said that it regretted that the matter had to come to court. “We would have preferred achieving the objective of a stronger health system through a negotiated and collaborative effort to increase the number of medical students and nurses in medical training facilities to address the healthcare system’s needs,” the association stated.