The Minister of Health seems to have ignored advice from his own advisers when he promulgated the surveillance regulations under the National Health Act on 4 May. These and other serious shortcomings are evident from the records of decision of the Minister and his department, which Sakeliga obtained in terms of the court rules in our case against the Minister.
Record of decision making
The records provided to Sakeliga give rise to the following impressions:
- The Minister’s own advisers warned him that he would act procedurally and substantively improperly and illegally by promulgating the regulations and that his regulations would not survive challenge in court;
- The public has expressed their disapproval of the proposed regulations in hundreds of thousands of public comments and virtually no one is in favour of it;
- The health department tried to maintain a semblance of public consultation and did not consider the public’s comments in good faith; and
- The department’s regulations and timing were primarily motivated by an effort to maintain the state of disaster regulations without interruption under another banner, rather than health considerations.
Court date and next steps
The court case has this week been allocated by the judge-presdient on the roll for 26 and 27 July, 2022. This will be heard together with several other cases against the regulations, such as those brought by Solidarity, as well as AfriForum and Dear South Africa. Although Sakeliga would have preferred the trial to ensue earlier, these are the earliest dates available for an allocation.
We point out that the time between now and the trial date does not meanwhile give the Minister the opportunity to keep the substantive flaws in his regulations out of court by way of renewed proclamations. Sakeliga’s application has been drafted in a way to keep the underlying constitutional issues before the court for as long as the essential aspects of the current regulations are preserved in any form in future regulations.
Sakeliga is currently preparing its supplementary affidavit, taking into account the records of decision-making. The Minister and other respondents will then have the opportunity to file answering affidavits, after which the case will be heard jointly with the other cases on 26 and 27 July.
Piet le Roux
Legal and Liaison Officer, Sakeliga