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'. 

2.         The 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. 

3.         The 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. 

4.         The 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 pleading. 

5.         The 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. 

5.A.     The 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.

 6.         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.

7.         On 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 pregnancy.

3.  November 2003 – April 2004 when she was granted maternity leave.

 8.         In 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 evacuations. 

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.

9.         On 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.’  

10.       On 28 March 2003 there was a meeting of theatre staff to discuss the matter at which the First Complainant felt very intimidated.

11.       In 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.

12.       On 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.

 13.       In 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. 

14.       In 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 dismissed.

WHEREFORE 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 of R.50,000.

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 
Tel/Fax 031-568-2521