Don’t be fooled by government ending the state of disaster
7 April 2022
After the threat of impending legal action from AfriForum and other organisations, the government backtracked on its intention to further extend the state of disaster. This after Minister Nkosazana Dlamini-Zuma’s announcement that the government was lifting the state of disaster by 5 April 2022. However, it is becoming increasingly clear that this is an attempt to mask the cloak-and-dagger tactics the government is employing to cling on to the unbridled power vested in it under the Disaster Management Act during the COVID-19 pandemic.
Doubts about the government’s true intentions immediately raised concern when a series of proposed amendments to regulations in terms of the National Health Act 61 of 2003 and the International Health Regulations Act 28 of 1974 were issued between 15 and 23 March 2022.
The new health regulations effectively mean that even after the state of disaster was ended on 5 April, most of the COVID-19 restrictions will temporarily remain in place. These regulations will then be permanently implemented as soon as the amendments to the regulations in terms of the National Health Act come into force.
Thus, the publication of the Adjusted Alert Level 1 Regulations on 22 March 2022 and the ending of the state of disaster, which ostensibly indicated a gradual easing of COVID-19 restrictions and a movement towards life after the pandemic, are nothing but a smokescreen for COVID-19 measures to be permanently enacted into law.
The proposed regulations entail that management of the COVID-19 pandemic will fall within the purview of the Minister of Health and not the Minister of Cooperative Governance and Traditional Affairs as stipulated in the Disaster Management Act. According to the proposed regulation 15A of the regulations published on 15 March, any person confirmed or suspected of having contracted a “notifiable medical condition” or persons who have been in contact with a carrier of a notifiable medical condition may not refuse to do the following:
“i) submit to a medical examination, including, but not limited to, the taking of any bodily sample which may be authorised by any law;
(ii) be admitted to a health establishment, quarantine or isolation site; or
(iii) submit to mandatory prophylaxis, treatment, isolation or quarantine, in order to prevent transmission.”
The proposed regulations worryingly further include (inter alia) compulsory face masks for indoor gatherings and entering public premises and public transport; funerals remaining limited to 100 people; indoor and outdoor events being limited to 1 000 and 2 000 people, respectively, and larger events remaining capped at 50% capacity with vaccine certificates required for entry.
It is apparent, however, that these health regulations have no legal basis to stand on. The regulations clearly contravene the constitutional right to the protection of bodily and physical integrity, since they allow for forced quarantine and treatment. The fact that there is no clarity with regard to the definition of “notifiable medical condition”, and that the government can change these conditions on an arbitrary basis, is also legally dubious.
In addition to these arguments, the regulations are ultra vires, in other words, outside the scope and purpose of the legislation, since it was never the intention of the legislature, when the National Health Act and International Health Regulations Act were enacted, for the acts to be used to put such far-reaching regulations in place. Several of the proposed regulations are, in fact, a repetition of previous regulations implemented during the state of disaster that have since been removed or set aside by the courts. It is, therefore, clear that the regulations are not only vague and uncertain, but also irrational and illegal.
Against this background, the proposed health regulations betray without a shadow of a doubt that the government is unwilling to relinquish the powers vested in it under the Disaster Management Act. Yet, on a positive note, the government’s sneaky tactics in enacting this legislation have backfired on it, since it has united the public and civil society to take a stand against it.