The Cape High Court will hand down its ruling next week in a challenge to controversial new draft health regulations that provide health officials with wide-ranging powers to manage patients testing positive for Covid.

The draft regulations, if they become law, will provide a way for health authorities to regulate any outbreaks of coronavirus infections. While not specifically mentioned by name in the regulations, the regulations refer to pathogens causing respiratory disease as one of the conditions that will trigger these regulations.

Amongst other things, the latest draft of health regulations, an amendment to the 2017 regulations, provide for the following: 

• People may not be allowed to refuse being examined or to provide biological samples if they test positive for a communicable disease like a coronavirus infection. 

• Action can be taken if infected patients refuse admission to a health facility or to isolate or quarantine.

• Steps can be taken where patients refuse “mandatory prophylaxis”, treatment, isolation or quarantine to prevent transmission in case of an outbreak. 

• Medical officials or police officers may obtain a court order to force individuals into quarantine or to remain in a hospital.
• Attendance at funerals and night vigils and attendance in public places including churches may be restricted.

On 14 April, lawyers for Action 4 Freedom, Naven Pillay and advocate Sabelo Sibanda, obtained an order preventing Health Minister Joe Phaahla from “processing” the regulations until 3 May.

At the hearing of the case on Tuesday, several groups – including the Indigenous First Nation Advocacy Group and an organisation called “My Individual Right to Informed Consent” – tried to join the proceedings but their applications were denied.

The African Christian Democratic Party, which initially indicated that they wished to join proceedings as a “friend of the court”, then applied to be joined as a party, but this too was denied. The party’s lawyer, Reginal Willis, was allowed to make submissions to the court. 

Last week, Phaahla extended the period for members of the public who wished to comment on or make suggestions on the new regulations by a further 10 days. He also added a WhatsApp number to facilitate comments.

Sibandla argued that the National Health Act should be read in a way that the minister must give three months for comment on regulations. As this was not done, he said the process was an abuse of power. He argued that it was up to the court to “protect the people”.

“The people of South Africa are in a very difficult position,” he said. “It is the lives of 60 million people that we are talking about.”

He said people are at risk of suffering substantial prejudice if the draft regulations become law, highlighting that there was scope for vaccines to be made mandatory if the process was not stopped.

Sibandla said the way in which comments were received, as well as the short time allowed for comments, had robbed especially rural South Africans from an opportunity to have their say. 

Advocate Steven Budlender, for the Minister of Health, said the only point the court must decide on is whether the law provides for a situation where the minister can consult for a different time period than the stipulated three months.

He said it was Action 4 Freedom’s argument that it is three months or nothing and this, he added, was “truly absurd.”

“There is no magic in the three months,” he said. “It is about giving people time to comment within practical considerations.”

He said while the plain reading of the law seems to provide three months for comment or nothing, when read in context, the two time periods represented opposite ends of the spectrum.

“It is clear that you need some flexibility,” he said. 

“The regulations have a significant and far-reaching effect. They are, contrary to the suggestions of the minister, not limited to the current pandemic,” the ACDP stated in their papers before court. 

ACDP attorney Bongani Luthuli said in papers that Phaahla was ignoring the science and that the consultative process was “wholly inadequate”.

“The reality is that the whole process is flawed. The issues arising are highly sensitive, complex, controversial and divisive. More so than even the Expropriation of Land without Compensation Bill,” he added. 

“Nothing remotely adequate has been facilitated for the majority of the population to participate in the so-called public participation process. 

“To make matters worse, it seems that these regulations will not be tabled before Parliament since, according to the minister, it is subordinate legislation which Parliament has already delegated to him. 

“There is another issue worth considering too, and that is whether Covid-19 should be a notifiable medical condition at all, as it currently is. 

“The advancing science and understanding of Covid-19 since its outbreak raises real doubt about the government’s understanding and response to Covid, which the minister says is what these draft regulations concern,” he added. DM/MC