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[LISTEN] New Health Act Regulations Gazetted Despite Public Comments Process still Underway

May 10, 2022

 Umm Muhammed Umar

Experts have expressed serious concern over decisions that will soon see special regulations added to the country’s health regulations, related to notifiable medical conditions. The Department of Health has published proposed regulations and invited public comment to incorporate the COVID special regulations into the general health regulations. More than 300 000 South Africans have already reportedly commented. Radio Islam discussed the concerns about the proposed plans to manage diseases and the transparency of the public participation process with two guests. The first was a PhD candidate for cell and gene therapy regulation, at the Institute for Cellular and Molecular Medicine, at the University of Pretoria, Ignatius Fillion. The second guest was from Dear SA, Rob Hutchinson.

Prof Fillion said that a notifiable medical condition was anything that was contagious or airborne, or a pathogen. He said, “it could be a common cold virus or anything else that is similar to Coronavirus – as we know, the corona virus is a cold and flu virus that has mutated into the current form that we have seen.” Regarding the new Health Act regulations, Fillion said that despite the more than 300 000 comments that the department that had received, the Minister of Health nevertheless gazetted some of the regulations already, on May 4. The regulations were specifically related to mask wearing and gatherings of more than 100 persons, and were legally binding.  Fillion said, “Well, there were several concerns, but the main concern was that some of these regulations, we believe, would limit our constitutional rights, including freedom of religion, association, assembly, expression and movement, and our rights – the security of the person privacy and rights, education and work.” He added, “The regulations that were just published on the 4th are exactly in this ballpark of regulations. And we can expect that civil organizations will……take the government to court on this, on the constitutionality of these regulations.”

Hutchinson said that there’s been some major confusion in the public space surrounding these regulations. He said the minister grant an extension to the draft regulations, which were already out for comments. While the minister granted an extra 90 days, in the interim, the temporary regulations that were put in place because the Disaster Management Act was set aside, were placed by the minister under the Health Act, which makes them now permanent. Hutchinson said that that was done without any public consultation, or anything to that effect. He said, “The minister can do that, it’s at the discretion of the minister to do that.” Nevertheless, he added, “However, the Health Act does clearly state that the maintenance to regulations should be put out for public consultation for 90 days, or in exceptional circumstances, the minister can actually put them out as he sees fit, so that’s what’s happened here.” He said that Dear SA was not sure whether the public participation period was valid because some of the regulations have now been adopted as permanent. He asked, “And will the minister introduce more regulations from the temporary draft regulations into to being permanent under the health regulations?”

Fillion added to the conversation: “we’ve got a fantastic constitution with our Bill of Rights…….Now within our Bill of Rights, section 36 of the Constitution says that some of the rights may be limited under very specific conditions, such as a national state of emergency or during a disaster, but then it is restricted to a specified period of time and it’s done with parliamentary oversight.” He said, “Now the problem that we see here is that the minister, by making these regulations, give the same minister the power to decide when to apply regulations without parliamentary oversight, that may affect our constitutional rights. So, the whole process is flawed.”

Hutchinson said that there were many concerns regarding the regulations: “they are very restrictive in that they if we go actually right back to the beginning when COVID was first discovered almost two years ago, we introduced a whole lot of regulations. It seems that all of those regulations are now back under the draft regulations and those will now be put into permanent place under the under the Health Act.” While under the Disaster Management Act, the restrictions were temporary, the Health Act is a permanent piece of legislation.  Hutchinson said, “The minister can declare a pandemic or an endemic, or any anything to do with a notifiable disease or communicable disease and then enact regulations without any parliamentary oversight or any consultation.” He stressed, “That is a dangerous situation to be in, as it grants the minister unbelievable power over every aspect of civil society.”

Fillion said that individuals should make their voices heard, until August 5th. He expected that civil organizations would also take these regulations to task in court and try and get them nullified or restricted until the consultation process is completed. He, however added, “But as individuals, we can’t do anything about that. We must just make our voices heard now.”

 

 

 

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