Application for new court case for new dates in court case against health minister’s Covid-regulations

26 July 2022

Sakeliga has applied for new court dates in its case against the Minister of Health Joseph Phaahla’s attempt at permanent Covid-19 regulations. The case was originally set to be heard on the urgent court roll on 26 – 28 July 2022.

The application for new dates on the normal court roll follows the Minister’s repeal in recent weeks of almost all his 4 May 2022 Covid-19 surveillance regulations. In the face of litigation by Sakeliga and others, the Minister backtracked and today the public and businesses can operate with almost no Covid-19-related restrictions. From a legal point of view, this necessitated removal of the case from the urgent court roll.

The 4 May surveillance regulations were an attempt to continue the once temporary restrictions (under the National State of Disaster for Covid-19) on a permanent basis (under the National Health Act). It entailed mask mandates, gathering restrictions, travel restrictions, vaccination-based gathering restrictions, and requirements that businesses monitor, track, and report on members of the public’s personal health information.

In his answering affidavit, filed on 24 June 2022, the Minister contended that he had done nothing wrong and was justified in his actions. He now alleged that his regulations were always intended to be only a “temporary stop-gap measure” and that he had in any case repealed them on 22 June. Sakeliga’s case was not urgent, he said, and moot, and even insisted that we withdraw lest he demand a cost order against us. Notably, the minister chose to remain silent on many aspects of Sakeliga’s founding affidavits. He failed to disclose a defence relating to the unconstitutionality of his regulations and the way in which his department ignored or dismissed almost all public comments.

Contrary to the Minister’s demands that we withdraw, Sakeliga’s litigation remains crucial. Unless his regulations are struck down, businesses and the public in South Africa remain at risk of debilitating, stringent, and sudden restrictions as part of government’s arbitrary Covid-19 containment efforts. And unless his deceptive public consultation process is challenged in court, public consultation processes in South Africa in general stand to become meaningless.

Moreover, despite his repeal of certain sections of the 4 May regulations, the Minister failed to repeal his regulation declaring Covid-19 to be a level 2 notifiable medical condition (NMC). This maintains absurd obligations on medical professionals, businesses, and members of the public to “immediately report” even mere suspected contacts of persons with Covid-19 to their nearest health establishment, under threat of 10 years of imprisonment. We point out in our affidavit that the South African Medical Association, in its submission during the public participation process, rejected the NMC classification, saying: “Making Covid-19 a notifiable medical condition inevitably leads to […] mandatory measures on individuals, as is required for dealing with all other notifiable diseases. The Regulations are un-enforceable and out of touch with reality.”

In our replying affidavit (click here for a copy), Sakeliga therefore persists with almost all the relief sought against the Minister. This includes:

Reviewing and setting aside his decision to promulgate the 4 May regulations.

Reviewing and setting aside any unrepealed parts of the 4 May regulations.

Declaring the public consultation process the Minister followed unlawful and unconstitutional, and having it reviewed and set aside.

In the alternative, declaring Section 90(1) of the National Health Act 61 of 2003 to be vague, inconsistent with the Constitution, and constitutionally invalid.

A favourable cost order.

Sakeliga remains committed to striking all illegal and harmful Covid-19 regulations and restoring flourishing economic and public life.

Issued by Sakeliga, 26 July 2022