FW de Klerk Foundation calls for checks and balances in proposed health regulations

5 August 2022

The FW de Klerk Foundation submitted written comments to the Minister of Health today regarding the proposed regulations on the surveillance and the control of notifiable medical conditions (NMCs). The proposed amendments to existing regulations are intended to manage COVID-19 after the present regulations expire.

However, they would grant the Minister draconian powers to force people with NMCs - or who are even suspected of having contracted NMCs - to submit to medical examination and to mandatory treatment that might include vaccination. They might also be required to be admitted to a health establishment, quarantine, or an isolation site. 

The Foundation has pointed out that the regulations would have almost as great an impact on fundamental rights as a State of Emergency - which is the greatest intrusion on rights contemplated by the Constitution. Even under a state of emergency there are core limitations and safeguards including: 

a determination by Parliament that the life of the nation is threatened; 

oversight of the State of Emergency by the National Assembly which must take a decision after 21 days whether it should be extended for no more than three months, subsequent extensions require the support of 60% of the members of the National Assembly;

the fact that certain rights - including freedom and security of the person - are non-derogable even under a State of Emergency. 

The Foundation has made a number of suggestions regarding the proposed amendments in the light of the extreme restriction on fundamental human rights experienced under COVID-19 and the need for checks and balances as highlighted by the Zondo Commission report on state capture - most notably that: 

a set of categories for a notifiable medical condition (“NMC”) be included that allow scaling up or down of response measures; 

a list of non-derogable rights be included as found in section 37 of the Constitution which may not be limited or denied by any response measure when dealing with a NMC; 

there must be Parliamentary oversight and public participation over the manner in which the regulations are administered; and 

there must be clear definitions of key concepts such as “pandemic”; “endemic”; “ministerial advice”; “public health importance”; “public place”; “treatment. 

Text of the submission:

THE FW DE KLERK FOUNDATION

Upholding South Africa’s National Accord

To: The Department of Health

For attention: Ms Tsakani Furumele

Per email

RE: Comments on the Regulations relating to the surveillance and the control of notifiable medical conditions: Amendment

Date: 05 August 2022 (Deadline for comments: Friday, 05 August 2022) INTRODUCTION

Dear Honourable Minister Dr Phaahla,

1. We refer to your invitation for written submissions on the amendments (the “Draft Health Regulations”) you are considering making to the 2017 Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions (“the Existing Regulations”).

2. The FW de Klerk Foundation (the Foundation) is a non-profit organisation dedicated to upholding the Constitution of the Republic of South Africa, 1996 (the Constitution).

3. To this end, the Foundation seeks to promote the Constitution and the values, rights and principles enshrined in the Constitution; to monitor developments including legislation and policy that may affect the Constitution or those values, rights and principles; to inform people and organisations of their constitutional rights and to assist them in claiming their rights. The Foundation does so in the interest of everyone in South Africa.

4. As such, the Foundation welcomes the opportunity to make concise submissions to the Department of National Health on the above Regulations.

5. We trust that our submission will be of assistance in guiding the Department in its deliberations regarding the Regulations. We are also available to make a verbal submission if required.

PREMISE

6. It is common cause that the proposed amendments to the Existing Regulations intend to manage COVID-19 going forward once the transitional regulations expire.

7. These Regulations will be in place long after COVID-19 has become endemic and thus need to look ahead to future events because they grant the State substantial power over the individual and their choices to manage their own health.

8. The “state of emergency” envisaged under section 37 of the Constitution allows the greatest possible violation of one’s fundamental human rights and thus may only be reasonable in the specific instances listed.

9. While the Draft Health Regulations may on the face of it seem justifiable when dealing with a pandemic or “public emergency” such as COVID-19, the powers that these Regulations grant the State are ripe for abuse by any government official with an ulterior purpose, because no oversight through checks and balances have been built into them.

10.Contrary to the rule of law, the Regulations grant arbitrary, unfettered power to the Minister to limit or deny fundamental rights by regulatory order which includes inter alia the right to dignity (section 10 of the Constitution), religious freedom (section 15 of the Constitution), freedom of association (section 18 of the Constitution) and of religious communities to practice their religion together (section 31 of the Constitution).

11.Due to this unreasonable and unjustifiable limitation, the Regulations, which qualify as a law of general application, fail to pass the Constitution’s section 36 test and are unconstitutional.

REMEDIES

12.In order to bring the Draft Health Regulations in line with the rule of law, we propose the following amendments:

12.1. The inclusion of a set of categories for a notifiable medical condition (“NMC”) that allow scaling up or down of response measures, similar to that of Annexure A of the Existing Regulations dealing with notification (E.g. by differentiating between a category 1, 2, 3 or 4 NMC limitation on fundamental rights – i.e. a category 4 NMC cannot limit constitutional rights in the same way and/or to the same degree as a category 1 NMC);

12.2. The inclusion of a list of non-derogable rights as found in section 37 of the Constitution which may not be limited or denied by any response measure when dealing with a NMC;

12.3. The provision by the Regulations for Parliamentary oversight and public participation (E.g. the Minister’s listing of a NMC be subject to public participation and for Parliament to have further public participation should it view the Executive’s consultations to be insufficient, and that the Minster give reasons to Parliament for listing a condition as a NMC); and

12.4. The provision of definitions of key concepts such as “pandemic”; “endemic”; “ministerial advice”; “public health importance”; “public place”; “treatment.

13.We submit that only where the “life of the nation” is at stake should draconian measures be required, in line with the state of emergency outlined in section 37 of the Constitution. A mechanism to 1) establish the severity of an NMC and 2) determine the least restrictive means to achieve public order with minimal impact on one’s fundamental human rights, must be included in the Regulations.

Kind Regards, Tyla Dallas

Manager: Constitutional programmes FW de Klerk Foundation

Issued by FW de Klerk Foundation, 5 August 2022