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MAIN CONCERNS WITH THE DRAFT HEALTH REGULATIONS

Overview
The Draft Regulations (open for comment until Friday 15th April, 2022) will replace the Disaster Management Act (DMA) Regulations and will likely be in place indefinitely.

These Draft Regulations are NOT limited to the COVID-19 pandemic and will define what life will look like going forward.

Mandatory and compelled vaccination
You cannot refuse compulsory medical examination, hospitalisation, quarantine, isolation and treatment for a “notifiable medical condition” – which will include COVID-19. This is specifically imposed by Regulation 15 (A)& (B).

Treatment is not defined. It is therefore possible that you can be subjected to mandatory vaccination against your will if [EG] you have merely been “exposed” to someone with a notifiable medical condition or if you are simply “suspected” of having contracted a notifiable medical condition.

Forced self-isolation for asymptomatic people
Regulation 15D states that even if you have no symptoms of disease, you can be forced to self-isolate. You will therefore be barred from attending a religious gathering or a small group meeting, thus severely limiting the exercise of your right to religious freedom (section 15 of the Constitution).

Note: This is contrary to the current position under Regulation 7(1) of the Disaster Management Act Regulations for Level 1.

Unjustifiable, permanent restrictions on religious gatherings
Regulation 16J imposes unjustifiable limitation of both the unvaccinated individual congregant’s right to religious freedom (section 15 of the Constitution), as well as church members’ right to practise their religion together (section 31 of the Constitution).

1. Restrictions apply to gatherings during an endemic or a pandemic – IE Permanently.
2. Gatherings are restricted due to risk of transmission – which is totally different to the severity of the disease and is therefore irrational.
3. The religious community’s right is severely limited by 16J (4) & (5) of the Draft Regulations:
   1. If your venue capacity – subject to the restrictions of only being allowed to use 50% and with 1-metre social distancing applied – is greater than 1,000 and you wish to accommodate more than this number, every person attending must show proof of vaccination.
   2. If you fail to show proof of vaccination, the gathering is limited to 1000 people indoors (with social distancing and masks) and 2000 people outdoors (with social distancing and masks).

Larger churches will therefore not be able to operate at 50% of venue capacity without requiring all their congregants to show proof of vaccination.

Current sanctions and penalties
In terms of Regulation 20 of the current regulations, you can face up to 10 years in jail or a limitless fine for failure to comply.

Overall concerns regarding Draft Regulations:

1. The Draft Regulations are issued under the National Health Act and therefore require no public participation, or Parliamentary supervision or input.
2. The Draft Regulations are extremely vague. Neither the National Health Act (i.e. the law in terms of which the Regulations will be made), the current Regulations not the Draft Regulations themselves specify the criteria for declaring something either a pandemic or endemic.
3. There is no certainty in the application of the Draft Regulations due to lack of definition of vitally important concepts:
   1. Pandemic;
   2. Endemic;Ministerial advice;
   3. Public health importance;
   4. Public place;
   5. Treatment.
4. The Draft Regulations make no differentiation between a category 1, 2, 3 or 4 notifiable medical condition, and simply consider the “risk of transmission” as opposed to the severity of the disease, for purposes of the limitations on rights.
5. The Draft Regulations allow for any type of disease, no matter how mild (EG – a common cold), deemed of “public health importance” (which is undefined), to be listed by the Minister as a “notifiable medical condition”. This requires no public participation or reasons from the Minister.
6. The Draft regulations omit the relevant annexure containing the notifiable medical condition (Annexure A) definition and list, which was therefore not gazetted as part of the Draft Regulations. We therefore do not know what we are dealing with, so potentially [EG] even a variant of COVID that is 1000% weaker than Omicron can be governed by these Regulations.

WE THEREFORE CALL FOR THE FOLLOWING AMENDMENTS:

1. The listing of a NMC to be subject to public participation and Parliamentary oversight; and
2. The Minister be required to give reasons for listing a condition as a NMC; and
3. The Regulations to differentiate between a category 1, 2, 3 or 4 NMC, and consider the severity of the disease, before limiting constitutional rights; and
4. The National Health Act to be amended to define: both the criteria and the process for the declaration of a pandemic or an endemic, and key concepts such as pandemic; endemic; ministerial advice; public health importance; public place; treatment; and
5. Regulation 15 to be amended to exclude mandatory vaccination and only impose mandatory medical examination, hospitalisation, quarantine, isolation and treatment, for a category 1 NMC; and
6. Regulation 16 be amended do away with requiring proof of vaccination and only impose a limitation on gatherings for a category 1 or 2 NMC; and
7. The offences and penalties to be amended so that failure to comply is not a crime or subject to a limitless fine.