Pleading lodged on
behalf of Sister Charles
In the Vereeniging Equality Court
Wilelmien Magdalena Charles, First Complainant, and
Doctors for Life International, Second Complainant, and
John Jackson Smyth, Third Complaintant
Gauteng Department of Health (Kopanong Hospital) First
The National Minister of Health, Second Respondent, and
Member of Executive Council for Health (Gauteng) Third Respondent
COMPLAINANTS’ PARTICULARS OF CLAIM
1. The First Complainant is
a Theatre Sister employed at the date hereof by the First Respondent. Her
details are provided in Form 2 (filed with this pleading) pursuant to
Regulation 6(1) made pursuant to The Promotion of Equality and Prevention of
Unfair Discrimination Act (Act No 4 of 2000), hereinafter called 'the Act'.
Second Complainant is a non-profit making association incorporated and
registered under section 21 of the Companies act 1973, and acts herein in the
interests of its members who are Health workers concerned to uphold the
provisions of the Bill of Rights and the Act in all respects. The Second
Complainant brings this complaint pursuant to section 20(1)(e) of the Act. The
Second Complainant’s details are set out in Form 2 filed with this pleading.
Third Complainant is a retired member of the Bar of England and Wales and a
voluntary legal advisor to the first two Complainants, and acts in the public
interest pursuant to section 20(1)(d) of the Act. The Third Complainant’s
details are set out in Form 2 filed with this pleading.
First Respondent is responsible for the management of the Kopanong Hospital in
Vereeniging where the First Complainant has been employed as a Nursing Sister
since 1997. The First Respondent’s details are set out in Form 2 filed with this
Second Respondent is the National Minister of Health for the Republic of South
Africa and is cited herein in her official capacity as the political head of the
Department and as the authority ultimately responsible for the Kopanong Hospital
and all Government Health facilities nation-wide. Her details are set out in
Form 2 filed with this pleading.
Third Respondent is the Member of the Executive Council for Health for the
Gauteng Province, cited herein in his official capacity as responsible for the
Kopanong Hospital and Health services in Gauteng Province. His details are set
out in Form 2 filed with this pleading.
From 1988 – 1992 the First Complainant trained at the Coronation Nursing College
successfully qualifying as a registered nurse. From June 1994 to June 1995 she
successfully completed a one year course in Theatre Nursing at the Military
Hospital in Pretoria. In 1996 she was promoted to Senior Registered Nurse and in
1999 to Chief Professional Nurse.
the 8th January 1997 the First Complainant was appointed a Theatre Scrub Sister
by the First Complainant at what was then known as the Vereeniging Hospital, now
the Kopanong Hospital (hereinafter called ‘the Hospital’). She was continuously
employed in theatre until May 2004 save for the following periods:
1. March 1997
– Jan 1998 during her first pregnancy when she asked to work elsewhere in view
of her pregnancy.
2. April 2003
– November 2003 when she asked to work elsewhere because of her third
2003 – April 2004 when she was granted maternity leave.
February 2000 the staff at the Hospital were told that Terminations of Pregnancy
(hereinafter called ‘TOPs’) were about to start in Ward 12. The First
Complainant and other health workers at the Hospital who opposed induced
abortion on conscientious grounds presented a petition to Dr Tshabalala on 25
May 2000. On the 28 February 2001 the First Complainant wrote a letter to the
Hospital management in which she wrote inter alia:
1. That she
had become a Jehovah’s Witness and did not wish to help with any abortion
2. That CPN Smit, another theatre sister, had kindly offered to be called out for any
evacuation in theatre should the First Complainant be on duty when such a case
was referred to theatre.
3. Making the
suggestion that two sisters be allocated to theatre during the day, and one
sister be on call after 1900 hours for TOP evacuations.
After the First
Respondent received the said letter, the First Complainant became increasingly
conscious of bad feeling against her from the Hospital management. She felt
increasingly intimidated and on 20 August 2001 and again on 13 September 2001
she was forced to ‘scrub’ for a TOP case in the face of her protestations and
contrary to her conscience.
19 February 2003, a TOP case was referred to theatre during the night when the
First Complainant was on duty; she phoned both Sister Smit and Mrs C Jacobs, the
area manager, and was told by Mrs Jacobs that she had no choice and she must
scrub for the case. She did so very much against her wishes. She contacted the
Second Complainant who faxed her a form entitled ‘Declaration of Health
Professional’ that certified that she had a conscientious objection to induced
abortion; she filled in the form and presented it to Sister Smit the next day,
February 20. On the same day she saw the Hospital CEO, Mr Madonsela, who was
supportive of her and said ‘they were not supposed to force you to scrub for
that (abortion) case.’
28 March 2003 there was a meeting of theatre staff to discuss the matter at
which the First Complainant felt very intimidated.
April 2003 the First Complainant was pregnant again and asked to be taken out of
theatre to avoid any more stress during her latest pregnancy.
May 2 2004 the First Complainant returned from maternity leave but was not
placed on the theatre roster. Since that date the First Respondent has failed to
respond to requests from the First and Second Complainants to re-instate the
First Complainant in theatre, and has failed to give any reasons in writing as
requested by the Complainants.
the premises the First and Second Respondents have unfairly discriminated
against the First Complainant, directly or indirectly, on the ground of her
religion, conscience and belief and she has suffered impairment of dignity, and
emotional and psychological suffering.
view of the impairment of dignity, and emotional and psychological suffering,
imposed on the First Complainant by the First Respondent, the First Complainant
felt compelled to write a letter of resignation to the First Respondent dated 30
July 2004; in the circumstances the First Complainant has been constructively
THE COMPLAINANTS CLAIM:
1. A declaration that the First Complainant has been unfairly discriminated
against by the First Respondent on the grounds of religion, conscience and
belief in that she has been removed from theatre.
2. An INTERIM order that the First Complainant be re-admitted to her
position as a theatre sister forthwith pending the hearing of this matter.
3. Damages for the First Complainant against the First Respondent for the
impairment of her dignity, and emotional and psychological suffering from 28
February 2001 until this matter is resolved and her suffering ceases, in the sum
4. An order that an unconditional apology be made by the First Respondent to
the First Complainant.
5. An order directing the First and Third Respondents to take all reasonable
steps to restrain unfair discriminatory practices on the ground of religion,
conscience or belief at the Kopanong Hospital.
6. An order directing the Second Respondent to take all reasonable steps to
restrain unfair discriminatory practices on the ground of religion, conscience
or belief at Health facilities nation-wide.
7. An order for costs against each Respondent, save that the Third
Complainant makes no claim for costs.
8. Further and/or alternative relief.
DATED AT UMDLOTI ON THE 16th DAY OF SEPTEMBER 2004
John J Smyth,QC
Legal Advisor to First and Second Complainants, and Third Complainant in person
PO Box 200 Umdloti 4350