Another Case of Smoke and Mirrors

In my previous article, High Court Challenge – New Code of Practice: Managing Exposure to Covid in the Workplace, I alluded to the fact that the National Employer’s Association of South Africa (NEASA) had turned to the Pretoria High Court in an attempt to challenge Government’s Code of Practice for Managing Exposure to Covid in the Workplace.

Papers were filed on 18 May 2022 and included an application for an order that the Code be declared ultra vires, unlawful, unconstitutional, and that it be reviewed and set aside. I concluded my ‘ High Court Challenge’ article by stating that I awaited the outcome of the application with eager anticipation. It would appear that the jury remains out in this regard!

On the 23 June 2022, NEASA received a letter from the Minister of Employment and Labour, Thulas Nxesi, in which he informed the Association that in view of the fact that the Code had been gazetted in terms of the wrong section of the Labour Relations Act (LRA), he (the Minister) had to concede that the Code was indeed ultra vires under the provision of the specific section of the LRA. NEASA accordingly informed the Minister that he was now under a constitutional obligation to withdraw the Code immediately. NEASA pointed out to the Minister that in issuing a new Code, both he and the National Economic Development and Labour Council (NEDLAC) would have to consider the 22 June 2022 withdrawal of the Regulations Relating to the Surveillance and Control of Notifiable Medical Conditions: Amendment 2022, by the Minister of Health, Dr Joseph Phaahla.

NEASA reminded the MoEL that in a press statement on the 23 June 2022, the Minister of Health had, inter alia, stated the following: "Having monitored the positive direction for more than three weeks we came to the conclusion that the peak infection which we concluded was a limited 5th wave driven by subvariants and not a new variant of concern was dissipating and that there was no more any eminent [sic] risk. It is on this basis that we approached the NCCC and the National Health Council which is made up of all Health MECs with a proposal that the limited regulations which dealt with: (a) Wearing of masks indoors (b) Limitations of gatherings (c) Vaccination proof or PCR negative tests at Ports of Entry, – should all be lifted". NEASA consequently pointed out in a letter to the Minister of Employment and Labour that:

• it did not understand how he could continue to insist on the Code being part of a specific Covid-19 workplace response, where the Minister of Health had confirmed that it was no longer a public health concern; and

• his insistence on continuing with the Code was out of step with the rest of the Government's position that Covid-19 was no longer a public health threat that required heavy-handed regulations in order to manage and mitigate, and that it (NEASA) struggled to understand how, in the view of the prevailing circumstances, he would insist on persisting with the Code.

Notwithstanding NEASA's letter to the Minister of Employment and Labour containing the aforementioned, the Minister on 24 June 2022 issued a new Code, this time under the auspices of a purported decision by NEDLAC. The Code is identical to the one previously issued by the Minister, however, on this occasion, it is accompanied by an admission of it being ultra vires. “The timing of the new Code is indicative of the fact that the Minister and/or NEDLAC did not take cognisance of any of the submissions made in our correspondence and is clearly in support of an ulterior motive” concludes NEASA. “It is highly doubtful that NEDLAC followed any proper procedure in reaching this decision”. NEASA has indicated that it will be launching a new application for an order setting aside the new Code on the basis of both substance and procedure.

We await the outcome of this new application again with eager anticipation!

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