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Court dismisses BONU application

MPHO MOKWAPE
Nurses commemorating their International Day PIC: MORERI SEJAKGOMO
Gaborone High Court has dismissed the Botswana Nurses Union’s (BONU) application on grounds that the matter was not urgent after they took the State and the Director of Health Services to court demanding health and safety compliance.

The union wanted the State to be liable for, amongst others things, provision of protective gear for its members amidst the coronavirus (COVID-19) pandemic.

The union that brought the application on urgency after a declared lockdown by President Mokgweetsi Masisi, was seeking, amongst others, that the matter be treated urgently and the State be interdicted in allowing health workers to diagnose and treat COVID-19 patients without proper gear and without being isolated from their families.

However, the Court dismissed the application saying the matter was not urgent and that most of the remedies that the union sought were superficial.

Passing judgement, Justice Dr Godfrey Radijeng, said the applicants failed to show any breach or failure by the State to perform a statutory duty, therefore it was impossible to grant any orders or prohibitory interdict.

He explained that he was satisfied that the State had set out the prevailing circumstances of interpretation of their undertaking as anchored on the interim guidance of the World Health Organisation (WHO) issued on April 9, 2020.

“The WHO guidelines that the State relies on have not been sufficiently gainsaid by the union. I take the view that the grant of an order for prohibitory interdict would only premise unending litigation and not bring finality to the issues between the parties,” he said.

Radijeng said he was persuaded by the facts established that interpretation of the State’s undertaking was reasonably and prudently acknowledged in the global pandemic and followed the WHO guidelines.

On the provision of education and counselling for COVID-19 health workers, the judge pointed out that the union did not provide instances for education and counselling by its members, but had merely stated that counselling was continuous on demand.  “The state has outlined the pre-deployment and continuing education and counselling provided. This has not been gainsaid except to place the government to full proof.

They have in riposte submitted and correctly so that the onus of proof to sustain the prayers sought lies with the

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union not the state,” he said.

At the backdrop of the matter was that the union moved an urgent application before court during the 28-day lockdown seeking among others that an order for mandamus be issued compelling the government to provide the union’s members with safe working conditions to ensure safety of the workers.

The union also sought an interdict against the state as an alternative provided what they sought was not met and they also wanted the matter be treated urgently. The union in its founding affidavit deposed by the secretary general, Lebogang Phillip had indicated that the union and state had a meeting on March 26, 2020 to deal with among others, issues that of health and safety of its members in the fight against COVID-19.

The union contended by way of a letter dated March 31, 2020, acknowledged and issued their undertaking to take all measures necessary and in line with the WHO guidelines to ensure the health and safety of the union’s members in the workplace.

However, the union said they were forced to seek the court’s intervention as the state either failed to perform in some areas of the undertaking while in some areas the government partly and or insufficiently performed.

The union averred that its members are in the frontline of screening persons entering the country at all points of entry and borders, administering tests to persons suspected to be carriers of the coronavirus and assist in tracing, testing and monitoring of all persons suspected to have COVID-19 and are placed in isolation with persons confirmed to be positive of the virus.

They also noted that its members are the most exposed and vulnerable members in the community and therefore the application sought to foster a protective and safe environment.

The state opposed the application on further grounds that the applicant had not made out a case for granting of an interdict and that the relief of mandamus was legally incompetent.



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