PRESS RELEASE: DRAFT HEALTH REGULATIONS FACE MAJOR CHALLENGES

Press release

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 appearance was most likely prompted by the extraordinary volume of public opposition to the amended Draft Health Regulations, with more than 275,000 submissions already received by the Department of Health.

The Draft Health Regulations were first gazetted on 15 March 2022, with the public given 30 days to comment. Religious communities and numerous civil society groups have strongly criticised the regulations, warning that they would grant the Minister sweeping powers to govern in a manner similar to the COVID-19 State of National Disaster, but without parliamentary oversight or meaningful public participation.

Serious concerns with the draft regulations

The Draft Health Regulations have been widely criticised for their vagueness and overreach. Key terms such as “pandemic” and “endemic” are left undefined, creating legal uncertainty.

Under the draft regulations, it would be possible to impose treatment measures, including forced vaccination or indefinite isolation in state quarantine facilities, based solely on suspicion of a “notifiable medical condition”, regardless of the severity of the disease.

The regulations also retain numeric limits on gatherings unless proof of vaccination is provided. This would force religious leaders to exclude individuals from meetings and services, severely infringing on constitutionally protected religious freedom rights. Non-compliance may result in lengthy prison sentences and unlimited fines.

“These regulations are completely unnecessary and represent a serious overreach by government,” says Michael Swain, Executive Director of Freedom of Religion South Africa. “If South Africa faces another pandemic, government already has the option of declaring a new State of National Disaster.”

A deeply flawed public participation process

The public consultation process has been marked by confusion and procedural irregularities.

On 15 March 2022, the Minister published a notice and gazetted a set of draft regulations, which were almost immediately replaced on the same day by a second notice and replacement regulations. This was likely due to numerous typographical errors in the first document.

Further confusion followed when the Minister referred to the cancelled version of the regulations while announcing an additional ten-day extension for public comment, up to Sunday, 24 April 2022. However, because both versions of the regulations are substantively identical, submissions already made remain valid. Any attempt by the Department to claim otherwise would further undermine the credibility of an already flawed consultation process and could result in the regulations being set aside.

An additional, potentially fatal defect has emerged following reports that the Department of Health deleted an unknown number of email submissions without opening or reading them. This conduct constitutes a serious violation of the public participation requirements and would be sufficient grounds for judicial review should the Minister attempt to enforce the regulations in their current form.

Legal challenge to the consultation period

A separate legal challenge has been launched by Action4Freedom, which has instituted proceedings against the Minister of Health in the Cape Town High Court.

Action4Freedom argues that the public participation process is unlawful because Regulation 90(4)(a) of the National Health Act requires a 90-day period for public comment, not the 30 days provided by the Minister.

The matter is scheduled to be heard on Tuesday, 26 April 2022. If Action4Freedom succeeds, the Court may order either:

• an extension of the public comment period to a full 90 days, or
• a declaration that the entire process to date is invalid, requiring the Minister to reissue the regulations and restart the consultation process.

Either outcome would significantly delay the implementation and enforcement of the Draft Health Regulations.

Government faces mounting legal and practical obstacles

FOR SA has highlighted several serious challenges now confronting government.

With the State of National Disaster officially ended, the COGTA Minister cannot extend the transitional regulations beyond the 30-day period already gazetted. When these regulations expire on 4 May 2022, all related restrictions, including indoor mask mandates and limits on gatherings, will fall away.

If Action4Freedom succeeds in its court application, the Draft Health Regulations cannot come into force until the public participation process is lawfully concluded or the litigation resolved.

Furthermore, the law requires the Minister to consider all public submissions. Given the sheer volume of submissions received, this will require significant time and administrative resources. It is highly unlikely that this process can be lawfully completed in the brief period between the current closing date for submissions on 24 April and the expiry of the transitional regulations on 4 May.

“It is evident that government’s intention is to move seamlessly from the transitional regulations to the Draft Health Regulations,” says Swain. “But they may find it difficult, if not impossible, to do so.”

Call to action

FOR SA continues to encourage members of the public to make use of the extended deadline and submit comments before Sunday, 24 April 2022.

“As we have said from the beginning, the more submissions that are made, the louder the voice becomes,” says Swain. “If the Minister ignores the concerns of tens of thousands of citizens or cannot prove that those concerns were properly considered, it opens the door to another court challenge to have the regulations reviewed and set aside.”

Submissions can be made via www.forsa.org.za by following the link to the DearSA platform, or by downloading the submission template and emailing it directly to the Department of Health using the email addresses provided.

ENDS