Punitive costs order against Denosa over ‘meritless’ urgent application

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The Democratic Nursing Organisation of South Africa (Denosa) has been slapped with a cost order after trying to sue the office of the Gauteng Health MEC and a nursing college over what it claimed was an unfair expulsion, reports The Times.

The student nurse they represented was dismissed from the college after allegedly being caught cheating on an exam by writing answers on her thigh, with the union deciding to support her as she took the college and health MEC to the Labour Court in Johannesburg. But, the report says, Judge Edwin Tlhotlhalemaje was not impressed with the young woman’s story and the union’s representations, ultimately siding with the college and upholding the expulsion.

Phemelo Damaria Ramaroane was attending the SG Lourens Nursing College in Pretoria, on a four-year diploma course to become a nurse and a midwife. The report says because she was also employed by the college, the Gauteng Health Department was responsible for paying her. On 25 January, 2019, Ramaroane – now a fourth-year student – was scheduled to take a test in community nursing science.

The report says in his judgment, Tlhotlhalemaje detailed how the young woman had arrived at the test venue with notes of certain medication terms written on her right thigh. “Whilst taking the test, she was overcome with guilt and had started to rub off the incriminating information from her thigh. It was at that point that one of the lecturers saw her and approached her to establish what she was up to,” the judge said.

Even after being caught, the college agreed to allow her to retake a different test, although she was asked to write a report about what happened during her first attempt at the exam. At a disciplinary hearing she pleaded guilty to all the charges against her (except the charge of dishonesty) and was issued a sanction of termination for two years, as stipulated by the nursing college’s regulations.

The report says the young woman tried to lodge an appeal in April, claiming she had not been allowed to plead mitigating factors before the sanction was issued, and that it was too harsh. When her appeal was rejected, she approached the court with an urgent application with Denosa at her side.

“Clearly on the facts, any harm she will suffer (not being able to write her final exams) is as a consequence of her own intentional dishonest conduct. It is self-inflicted harm,” the judge said. He noted how the young woman had, year on year, signed the college’s anti-cheating policies. “Like a minor child caught with her hand in the cookie jar, she obviously could not justify her conduct other than to apologise when the monumental mess she had created for herself hit her. It is not even necessary to even think of the consequences of her conduct on the integrity of the examination process and to the nursing profession as a whole.”

The report says the judge was also pleased by the representations of the nursing college and health department, which recommended that the young woman approach the South African Nursing Council, which provides rehabilitation and support, during her two-year sanction. “Her dismissal effectively amounts to a two-year suspension from her training as a nurse, and she is at liberty to resume her studies thereafter. Thus, any alleged harm (even self-inflicted) is not irreparable,” said Tlhotlhalemaje.

The report says the judge was particularly wary of Denosa’s attorneys choosing to approach the court on an urgent basis. “No matter how much this court has cautioned parties against bringing merit-less applications on an urgent roll and awarding punitive costs orders, the rot never stops,” he said. He said Denosa ought to have reflected on the facts of the case and asked itself the same questions.

While it was commendable that unions should appear to be supportive of their members, they had chosen to support someone who had “acted in the most reprehensible and dishonest manner”.

“If the message to Denosa members is unashamedly that ‘we have your back’, and it is perfectly normal to cheat and to be dishonest, and that they will be defended to the bitter end, then clearly there is something inherently wrong and palpably twisted with that logic,” he said.

The report says bcause of this, he ordered that Denosa pay the legal costs of the health department and the nursing college, to be determined on a scale agreed between the attorneys and their clients.

He dismissed Ramaroane’s application in its entirety.

Denosa Tshwane regional chairperson Simon Lebeloane said that while the union respected the court’s decision – and would not appeal – they disagreed that their legal team had wasted the court’s time. “We still believe we had a case here. Our members are entitled to legal representation,” he is quoted in the report as saying.

The union also believed another tribunal at the nursing college could have given a different punishment to Ramaroane if she had been allowed a proper appeal.

The Times report (subscription needed)

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