Gaborone High Court Judge Godfrey Radijeng has thrown out Botswana Nurse Union (BONU)’s lawsuit against the government for allegedly failing to provide safety equipment for COVID-19 to health professionals. BONU filed a law suit against government claiming among other things that the Ministry of Health and Wellness was falling short of World Health Organization (WHO) guidelines on the safety of healthcare workers.Nurses had also alleged that lack of proper protective equipment was putting them and their families in harm’s way.
BONU accused Ministry of Health authorities of backtracking on their March 31st promise to provide nurses and other health professionals with Personal Protective Equipment (PPE) and accommodation. Government had made an undertaking that frontline workers would be accommodated in isolation from their families and other members of the community. It also promised that they would be quarantined for 14 days after their final shift or last interface with suspects or quarantined individuals. Delivering judgment, Radijeng noted that the union did not say when specifically there was non performance or failure by the Ministry to perform in full or in part the isolate accommodation and the need for the provision of 14 days quarantine after the final shift of the union’s members post the crystallization of the Ministry’s undertaking of 31 March.”It leaves the Court to speculate on as the evidence presented by the Applicant (BONU) does not disclose the detail of when these complaints arose after the Respondents’ undertaking of 31 March 2020,” the judge said.
Radijeng further stated that “the Applicant’s Secretary General avers to have undertaken inspections or ‘collected facts on the ground’ but does not say when this was done to place the complaint into context of when the applicant became aware of the wrong complained of vis a vis the launch of the application.”He said this was critical for the Court to assess objectively the facts relied on by BONU for their law suit.” In the result construing, the tenure of the Respondents’ undertaking in proper context, I take the view that the Respondents’ submission that the determination of what ‘measures are reasonably necessary’ in the context of Section 11(2) (a) and (j) of the Public Service Act must be discerned from the efforts of the Respondents to prescribe relevant terms and conditions for safety and wellness in the fight against COVID‐19 pandemic virus,” he said. The section in question among other things compels an administrative body to perform a prescribed duty as imposed by law.
Radijeng said BONU has not controverted the Ministry’s multiple savingram providing as submitted, conditions for the provision of a safe environment for frontline workers.”In the result, it cannot be said that the Respondents (Ministry) are in breach or have refused to perform a duty as provided by the statute,” said Radijeng. The judge found that the government by its letter dated 31 March issued its undertaking to take all measures reasonably necessary and in line with the World Health Organization (WHO) to ensure the health and safety of BONU’s members in the workplace. He said BONU sought to enforce compliance with this pursuant to section 11 (2) (a) and (j) of the Public Service Act. Justice Radijeng said government submitted that it is the WHO guidelines or protocols that prescribe the detail of what is appropriate taking into account the prevailing global circumstances in the fight against the global pandemic of COVID‐19.
BONU had also sought a mandatory interdict against the ministry ordering it to among others provide its members with protective clothing and accommodation. Commenting on this, Radijeng said “I take the view looking at the Applicant’s alternative order for a mandatory interdict to be misplaced in that while the premise of the Respondents’ undertaking is acknowledged, “the difficulty to bring finality to the issues between the parties should the Applicant be granted a mandatory interdict as it is not clear what the specifics of enforcement will be considering the nature of the orders sought under the particular alternative remedy.”The judge added that “I’m persuaded by this on the facts established that the interpretation of the Respondents undertaking must be reasonably and prudently in the circumstances of an acknowledged global pandemic and shortage of protective provisions be properly done with guidance of the World Health Organization, a body the Applicant relied on in championing its case.”