22 April 2022
For immediate distribution
DRAFT HEALTH REGULATIONS FACE MAJOR CHALLENGES – WHERE TO FROM HERE FOR GOVERNMENT?
The Minister of Health made an unexpected appearance before the Parliamentary Portfolio Committee for Health on Thursday, 14 April 2022. This was in all likelihood precipitated by the extraordinary scale of comments and criticisms that have already been submitted to the Department of Health by over 275,000 individuals since the Minister first gazetted amended Draft Health Regulations on March 15 and gave the public 30 days for comment. Religious communities and many other groups have severely criticized these regulations and the sweeping powers they will grant to the Minister to rule in the same unaccountable way that has been experienced during the COVID-19 State of National Disaster, without any parliamentary oversight or other public participation.
The Draft Health Regulations themselves have been criticized for vagueness, inasmuch as several important terms, including “endemic” and “pandemic”, are undefined. Treatment in the form of forced vaccinations and/or indefinite isolation in a State quarantine facility, based only upon being suspected of having a “notifiable medical condition”, is made possible, regardless of the severity of the disease itself. Gatherings continue to have numeric caps unless proof of vaccination is given, effectively forcing religious leaders to turn away people from their meetings and severely impacting their religious freedom rights guaranteed by the Constitution. Lengthy jail sentences and unlimited fines can be meted out for non-compliance.
“These regulations are completely unnecessary and represent a serious overreach by Government because, in the event that we face another pandemic, Government always has the option to declare a new State of National Disaster,” says Michael Swain, Executive Director of Freedom of Religion South Africa (FOR SA).
The process for consultation on the Draft Health Regulations has also been severely compromised. The Minister initially caused confusion by publishing a notice and gazetting a set of regulations on 15 March 2022, which were almost immediately replaced on the same day by a second notice and set of regulations to cancel and replace the first set. This could well have been because there were numerous typographic errors in the first document. The Minister then added to the confusion by referring to the cancelled set of regulations when he said that he would grant an additional 10 days (until Sunday 24 April 2022) for comment. However, given that both sets of regulations under the notices issued on 15 March 2022 are substantively the same, it does NOT mean that the submissions which have already been made are invalid. Were the Department try to claim this, it would simply further undermine their already deeply flawed public participation process, which may well end up with the regulations being set aside.
A further, potentially fatal flaw to the public participation process is the discovery that the Department has deleted an undefined number of email submissions without having opened or read them. This is evidently a gross violation of the public participation process and will be sufficient grounds for taking these Draft Health Regulations on review should the Minister subsequently try to enforce them in their unamended state.
A challenge to the time period for public comment on the Draft Health Regulations has also been initiated by an organization called Action4Freedom, who has filed an action against the Minister of Health in the Cape Town High Court. Action4Freedom are seeking a declaration from the Court that the entire current public participation process is unlawful because – when the Minister invited public participation and comment on these Regulations – Regulation 90(4)(a) of the National Health Act requires that he gives a 90-day period for this purpose.
In the event that Action4Freedom win their case on Tuesday, 26 April 2022, they are asking the Court to either order the Minister to give a further extension of time for submissions to be made (i.e. a 90-day total period, as required by Regulation 90(4)(a)) OR a declaration that the entire process to date is invalid and that the Minister must issue a new notice and new regulations, with a new 90 day period within which the public can comment. Either outcome will evidently significantly slow down the ability of the Minister to implement and enforce these new regulations.
“It is evident that Government’s intention is to switch seamlessly from the transitional regulations issued by the COGTA Minister at the end of the State of National Disaster when these expire on May 4 and then to continue to rule under the Draft Health Regulations,” says Swain. “But they may find it difficult, if not impossible, to do so.”
FOR SA points out that there are some real problems and challenges that Government now faces:
- Due to the fact that the State of National Disaster for the COVID-19 pandemic has been officially ended, the COGTA Minister will not be able to extend the period of the transition regulations beyond the 30 days gazetted. At this point, all regulations and restrictions issued and applicable during this period (until May 4) will fall away – EG – mask-wearing indoors, limits on gatherings etc.
- If Action4Freedom win their court case on Tuesday 26 April and the Minister is ordered to allow further time for public comment on the Draft Health Regulations, these cannot come into force before the new deadline for comment has expired or when the matter before the Court is resolved.
- The law dictates that the Minister must consider public submissions that have been made. The Department of Health will have to prove that they have done this. However, the sheer volume of submissions they have received requires a significant amount of time (and a large number of staff, specifically assigned for this purpose) that will need to be allocated. This will certainly not be possible in [EG] the ten-day period from the current closing date for submissions (Sunday 24 April) and the expiry date for the “transition period” under the final Lockdown regulations (Wednesday 4 May).
FOR SA, therefore, continues to encourage everyone to take advantage of the additional time granted by the Minister and to make submissions before Sunday, 24 April. As we have said from the beginning, the more submissions that are made, the louder the voice becomes.
“Sending in submissions is vitally important,” says Swain. “This is because, in the event that the Minister either ignores the concerns of tens of thousands of citizens or tries to proceed without being able to prove that he has given these concerns the due consideration required in law, it immediately opens up the opportunity for another Court challenge to have them reviewed and set aside.”
Submissions can be made via the www.forsa.org.za website and clicking on the link to the DearSA platform – or by downloading the template text from our website and emailing your submission directly to the Department using either (or both) the email addresses provided.
For further information, contact:
Michael Swain (Executive Director, FOR SA)
Tel: 072 270 1217