Department of Health is acting without evidence – IRR
5 May 2022
Yesterday Health Minister Joe Phaahla issued regulations under the National Health Act (NHA) that reimpose measures that were until recently lockdown Level 1 restrictions – including mask mandates for all non-domestic indoor locations, vaccine passes for large outdoor events, and restrictions to 50% of venue capacity indoors and outdoors for businesses and places of worship.
The regulations allow the Minister to “determine” when these measures “are no longer necessary” and also allow him, “at any time”, to determine that it is necessary to reimpose them. No standards or guidelines are provided for this ministerial determination to change South African lives fundamentally as if at the flick of a switch.
The regulations amount, in practice, to imposing the same lockdown measures the Minister tabled on 15 March. But those regulations were postponed, and public comment has been extended until 5 July. The newly imposed regulations have the same effect while totally bypassing public comment.
Regarding the postponed regulations the IRR has submitted that the Minister is acting ultra vires, beyond the powers conferred upon him by the National Health Act (NHA), which is urgently applicable to the imposed regulations.
The NHA explicitly requires the Minister to consult with the National Health Council before regulating “protective clothing”, but there is no evidence this having happened in Minister Phaahla’s rushed efforts yesterday. Moreover, the NHA implicitly constrains Minister Phaahla to apply more focused interventions than the sweeping limitations on all “indoor public place[s]” he has imposed.
The IRR has also submitted that the Department of Health is acting without evidence. Six experts, including infectious disease specialist Regina Osih and Professor Marc Mendelson, observed that after Omicron “experience…indicates that the type of cloth mask most worn by the public…does not meaningfully reduce transmission.”
In February, the IRR demanded through its attorneys that the government provide contrary evidence. No such evidence has been provided.
Said IRR Head of Campaigns Gabriel Crouse: “It may be that the Department of Health’s regulations are not just based in ignorance, but illegal ignorance. The law compels the government to keep track of the effectiveness of disaster measures that it imposes on us. It looks like the government may have broken its own law, which continues to have effect every day that it forces us to act a certain way without providing proper justification.”
Issued by Gabriel Crouse, IRR Head of Campaigns, 5 May 2022
