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Have your say on the draft regulations for the Health Act

DearSA Awaits New Court Date Against Health Regulations

NEWS UPDATE

DearSA and AfriForum’s case against the Minister of Health is not going ahead next week Monday, Tuesday, and Wednesday. This comes after the Minister of Health withdrew the interim COVID regulations when the National State of Disaster ended.

The case lost its initial urgency when the Minister withdrew the interim regulations. Our legal team has written to the Judge President to ask for a new date and is waiting to hear back from them.

Since DearSA brought our case as a normal application and not on an urgent basis, the difficulties currently facing some other applicants do not affect us.

The Minister of Health argues that the case is moot since he withdrew the interim regulations and they are no longer in force. We contest this. Our reasons for arguing that the case is not moot are:

    1. The Health Act Regulations (which are practically identical to the interim regulations) are still open for public comment.
    2. The process the Minister of Health followed was unconstitutional and incorrect. And hence it is a constitutional issue and cannot simply be dismissed as moot.

Just because the Minister of Health withdrew the interim regulations does not undo his decision to put them into force. Hence the court must still rule on the case and decide if that decision was correct. DearSA will communicate our new court dates as soon as we receive them.

One small victory, one giant leap forward.

The Department of Health has issued a notice to withdraw the “limited” regulations that were adopted without public participation. These include;

    1. Mask mandates
    2. Social distancing
    3. Venue capacities

However, the DRAFT regulations are still on the cards and open for public comment until 5 August.

Government notice

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Interim results from 199,998 participants – click images to enlarge

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DearSA-Health-Act-interim-b

STATEMENTS FROM OTHER ORGANISATIONS

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Freedom of Religion SA
The Red List

DOWNLOAD DOCUMENTS

DearSA court papers (Notice of Motion)

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DearSA court papers (Founding Affidavit)

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5 July extension granted

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DearSA’s letter to the minister (Flawed public participation)

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Extension granted

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Surveillance and Control regulations

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Points of Entry regulations

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Human Remains regulations

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Environmental Health regulations

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Download full gazette here

Download a QR poster – print one out and stick it up

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IN THE MEDIA

SUMMARY

The amended regulations include:

  • Mandatory medical examinations, isolation, and treatments for people with notifiable medical conditions, with an option to self-isolate for those with Internet access
  • Mandatory face masks for indoor gatherings and public transport
  • 1-metre physical distancing
  • Employers to encourage work-from-home where necessary and restrict face-to-face meetings
  • Travellers entering and leaving South Africa must have a vaccine certificate, or a negative PCR test no older than 72 hours
  • Hand sanitisers must be placed at all entrances of public places to promote hand hygiene
  • Restrictions on funeral attendance — During Covid–19, funerals are limited to 100 people.
  • Restrictions on night vigils and after-funeral gatherings — Banned during Covid–19
  • Restrictions on attendance at other gatherings — 50% of venue capacity, if attendees have vaccine certificates. Without proof of vaccination, attendance is limited to 1,000 indoors and 2,000 outdoors.
  • The regulations also allow further restrictions to be implemented through other government departments.
  • The Department of Health may give advice relating to curfews, a national lockdown, sports, economic activity, public transportation, religious and cultural practices, and the sale of alcohol.

Once the regulations are approved, the Department of Health said they would be implemented without being tabled in parliament, since it is subordinate legislation already delegated to the minister.

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Freedom of Religion SA (FOR SA)

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.