STUART HAYWARD: Proposed health regulations are an unprecedented threat to constitutional rights

The Luthuli House hucksters are at it again. The government is attempting to permanently prolong the Covid-19 state of disaster via a copy-and-paste of Covid-19 restrictions into existing National Health Act regulations.

The health minister would also be given unprecedented permanent powers to impose Covid-like restrictions on outbreaks of non-airborne diseases such as cholera and malaria, without even requiring consultation with medical doctors.

If these regulations are promulgated SA may never see the end of arbitrary Covid-19 restriction abuses of power. It is that serious. This is brazen, even by the low standards of the current government.

On April 4 the Covid-19 state of disaster was terminated by publication in the Government Gazette. “Hooray!” we cried naively. At the time I believed the government had for once acted responsibly by giving up its temporary Covid-19 powers. How wrong I was — it was just too tempting for the government to cling to these extraordinary powers.

Twenty days earlier, on March 15, health minister Joe Phaahla gazetted an amendment to the National Health Act regulations relating to the surveillance and control of notifiable medical conditions. The practical effect of this would be that many of the Covid-19 restrictions imposed in terms of the Disaster Management Act apply automatically and indefinitely, without the need for ministerial decree. The minister would have permanent discretion to implement these same restrictions to curb outbreaks of many other conditions.

The amendment is a blatant attempt to dupe exasperated citizens into permanently giving up constitutional freedoms. It is no coincidence that the closing date for comment on Phaahla’s notice was April 15,  the start of the Easter weekend and a mere nine days after the announcement of the termination of the state of disaster. Public outcry has thankfully forced the minister to extend the time frame for public comment to April 24.

Temporary powers

There are two important distinctions between the repealed Disaster Management Act Covid-19 regulations and the proposed amendment to the National Health Act surveillance regulations. The former only applied to Covid-19 and had a temporary lifespan. The latter are permanent and apply to a litany of other conditions as well as Covid-19.

The Disaster Management Act regulations allowed South Africans the knowledge that the extraordinary powers were temporary, a basis to plan around the extension or not of the state of disaster. A vague reference to “during the Covid-19 pandemic” in the proposed amended National Health Act surveillance regulations makes it impossible to know if and when the regulations apply, because there is no definitive Covid-19 pandemic timespan.

The amendment deems mask wearing indoors compulsory “during the Covid-19 pandemic” and to curb other listed diseases. Yet it is pointed out in submissions to the government by the Institute of Race Relations on April 1 that a number of experts have said cloth-based masks offer little to no protection against Covid-19 infection. This would thus be a never-ending arbitrary infringement of South Africans’ right to breathe normally, with no scientific justification.

Most concerning is sub-regulation 16M, the sharing of advice between cabinet ministers to contain the spread of existing National Health Act regulation-listed diseases regarding curfews, lockdowns and the sale, consumption and dispensing of alcohol, among others. It is anyone’s guess what “sharing of information” means.

I get the feeling this is deliberately vague so it doesn’t attract attention when gazetted, allowing the minister to arbitrarily implement a ban on alcoholic beverages whenever its suits the pocket of an ANC cadre. It would be easy to misuse this power because a listed disease such as malaria, for instance, is not contagious and is a permanent fixture in SA.

Correct home

The existing National Health Act regulations do not give the health minister powers that come anywhere close to what is within the intended amendment. This is uncharted territory. Yet there is no permanent need for these extreme powers. Consider the ridiculous 2020 Covid-19 ban on cigarettes to appreciate the dangers of giving such powers to any politician permanently. As the track record of corruption in the ANC government leaves a lot to be desired, it is likely that the powers in the permanent amended regulations would be abused.

I would be remiss to criticise without making a constructive alternative suggestion. The National Health Act is the correct home for health-related pandemic restriction regulation; the Disaster Management Act is not, chiefly because it allows the co-operative governance & traditional affairs minister to issue regulations for lockdowns and curfews with no direct democratic accountability from parliament.

A good example of regulatory measures that are at home in the Disaster Management Act is the government’s April 18 KwaZulu-Natal state of disaster declaration to facilitate the provision of emergency funding and assistance. Constitutional rights are not under threat; there was no need for parliamentary oversight.

During 2020 and 2021 the country was locked down and curfews were imposed at the sole discretion of the minister via gazetted regulations in terms of the Disaster Management Act. These measures constituted severe limitations on a litany of constitutional rights and should in future be implemented only under the most extreme and justified circumstances. The protection of these constitutional rights is too important for parliament not to be directly involved in approving the content of the regulations.

Expiry date

Ministers are ordinarily empowered by legislation to issue regulations without the need for parliamentary approval; my proposal is thus unorthodox yet justified. Covid-19 has taught us that our right to freedom of movement is too important to be impinged on by the discretion of one potentially corrupt or misguided minister.

There is no reason the health minister could not be required by the National Health Act, before gazetting regulations that impose a lockdown due to the 10th wave of Covid-19, to present medical science expert evidence before parliament for its vote. Parliamentary approval could expire after one month, requiring the minister to present updated evidence justifying the extension of the lockdown.

The Disaster Management Act is more than sufficient to allow the government to impose health pandemic-related restrictions while parliament amends the National Health Act as per my proposal. At least Disaster Management Act regulations have an expiry date. There is no need for a rushed copy-and-paste job of repealed emergency regulations into the existing National Health Act surveillance regulations.

Thankfully, the National Health Act surveillance regulations amendment is not yet law. It has merely been gazetted for public comment, a step that precedes promulgation. The National Health Act obliges the minister to consider public comment for potential amendment or repeal before becoming law. Promulgation may not take place less than three months before the gazetting for public comment; there is thus time to fight this.

Please comment on the proposed regulations before the April 24 closing date. I have found the Dear SA platform to be most useful for commenting. It is as easy as checking a few boxes and takes less than a minute to complete.

If you are not the sort of person who usually gets involved with politics I suggest you make an exception. Your constitutional rights have never seen this level of threat. Please take the time to comment.

• Hayward is an advocate at the Johannesburg Bar.