IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

CASE NUMBER : 61844/2021
REPORTABLE: NO
OF INTEREST TO OTHER JUDGES NO
REVISED
15/11/2022 

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

D.J VAN HEERDEN
ACTING JUDGE OF THE HIGH COURT
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
Date of hearing:			15 November 2022
Date of judgment:			15 November 2022