Amendments to the Health Act give unvetted powers to the Minister of Health similar to a State of Disaster

Please find attached soundbite by Siviwe Gwarube MP.

Health Minister Zweli Mkhize’s late night introduction of amendments to the Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions, 24 hours before the extended National State of Disaster under the Disaster Management Act expires is deeply concerning. It gives an impression of a government desperate to retain power over its citizens even outside of a legitimate State of Disaster by giving powers to the Minister which will allow him and the Executive to impose far reaching restrictions.

These regulations are attached to the existing National Health Act of 2003 and are now being amended to introduce sections akin to the Disaster Management Act to normalise snap government interventions. They give the Minister of Health or more broadly, the Executive, unlimited powers to impose restrictions that will impede civil liberties.

More importantly, these powers conferred to the Minister via the backdoor of the regulations make no provision for Parliamentary oversight and allow the Executive to impose restrictions without any checks and balances.

Parliament is not legally required to vote and pass on regulations, however, these specific regulations have far reaching consequences and must be brought to the full sitting of Parliament accompanied by a legal opinion sourced from Parliament’s legal services. These regulations must be debated and adopted by the House and cannot be snuck through the back door; in the middle of the night; 24 hours before the State of Disaster is meant to expire. This is why the Democratic Alliance (DA) will be writing to the presiding officers of Parliament to request that this be done as a matter of urgency.

While a legitimate argument can be made that these regulations in question ought to be improved in order to better manage notifiable medical conditions like Covid-19 in the future, sections of these amendments are reminiscent of the regulations contained in the Disaster Management Act which give the Executive unchecked powers.

The most concerning amendments state the following:

  • The Minister of Health may “impose necessary restrictions, relating to such notifiable medical condition” by the mere publication of a Government Gazette;
  • Restrictions may include:
    • Complete or partial closing of any public place including a place used for public receptions, tourist activities or events or public recreation, amusement or entertainment activities or events;
    • Prohibition of movements between districts and provinces of people;
    • Prohibitions of the use of ports of entry;
    • Imposing curfews for people to remain indoors; and
    • Closing of educational institutions.

During the past seven months we have seen the South African government tighten its grip on citizens more with some irrational and unnecessary limitations of their rights. This was done arbitrarily through a Covid Command Council that was accountable to no one else besides the executive. We have seen Parliament sidelined and relegated to a mere spectator all while massive decisions pertaining to the rights of citizens were taken. This was done in aid of our fight against Covid-19 – a legitimate global health disaster. We cannot allow this state of affairs to be normalized as though we do not live in a Constitutional democracy.

The Department of Health must ramp up its efforts to bring about behavioral change among South Africans and individuals must take personal responsibility for their health. This cannot be done through stringent and regressive pieces of legislation. Parliament must enforce its role as an oversight body when attempts to amass power on the executive starts to happen in this fashion.