Immediate repeal of health regulations necessary, but litigation continues


Sakeliga has noted the expected repeal of the unlawful 4 May health regulations. Meanwhile, our litigation is going ahead unchanged and the Department of Health is still required to submit an answering affidavit today.*

Should the government soon make an announcement concerning the regulations, we would like to point out that it is essential to ascertain carefully and accurately what the government is actually conveying. There is a difference between a mere preliminary deactivation or amendment of the regulations, and a complete withdrawal of the regulations. Therefore, Sakeliga will first consider the merits of any statement when the government announces an official decision.

What Sakeliga will not accept, is attempts to avoid litigation by conveniently switching the regulations off and on. We have noted, for example, that the Minister’s rushed process of suddenly revising the regulations coincides with a return date, being today 22 June, for the Minister of Health to submit an answering affidavit in the court cases brought against him by Sakeliga and others.

In Sakeliga’s supplementary founding affidavit filed last week, we are asking for a punitive costs order against the Department of Health. We argue in our court papers that the department was aware that its regulations would be unlawful, but that, in bad faith, they bore in mind the fact that the time-consuming nature of litigation would allow them time to make adjustments before court challenges to the regulations would reach trial stage.

Furthermore, there is a difference between the regulations promulgated on 4 May 2022 and the even more comprehensive regulations that are still open to public comment. There is little use in abolishing today regulations which the government is still planning to promulgate again, in a disguised form, in two months’ time.

Apart from the need to completely abandon the current and proposed regulations, there also is the issue of the Minister of Health and government’s improper and contemptuous process of public participation so far. The fundamentally unacceptable nature of the government’s public participation process(es) is something that cannot simply be glossed over by merely withdrawing the regulations.

While the government should immediately repeal all the 4 May regulations, including mandatory wearing of masks, Covid tests, travel requirements, vaccination-related penalties, function restrictions and so on, such a step would therefore not necessarily mean the end of Sakeliga’s litigation. Sakeliga will carefully consider any announcement or proposed further iterations of the current regulations, procure legal advice, and then announce further decisions and actions.

Click here for Sakeliga’s court papers.

*Sakeliga can now confirm that the state attorney has indicated in writing that he expects an announcement on the health regulations from the cabinet within the next day. Sakeliga’s litigation persists, however, and we still expect the Department of Health to deliver the required answering affidavit as per the timetable that has been agreed to.