Sakeliga litigation on health regulations imminent 


Sakeliga has notified President Cyril Ramaphosa and Health Minister Joe Phaahla that Sakeliga will litigate to have the health regulations published last week set aside, unless they withdraw the regulations by 18 May at 12:00. 

In a letter by Sakeliga’s attorneys sent today, the President and Minister Phaahla is requested to engage  with Sakeliga or alternatively to withdraw the regulations by 18 May at 12:00, failing which Sakeliga will institute formal proceedings. The letter sets out several of Sakeliga’s objections to the regulations. 

The letter points out that Sakeliga has noted and perused the applications already brought by various organisations including AfriForum and Solidariteit in which the urgent review and setting aside of the Regulations is sought. Even though current and likely future applicants’ various positions on the Regulations differ slightly, the aforesaid applications are well-founded and the Regulations will not withstand constitutional scrutiny. Failing withdrawal of the regulations, Sakeliga’s litigation will bring important additional legal scrutiny to bear on the regulations, which we consider especially important as a public interest business organisation. 

This additional scrutiny includes Sakeliga’s emphases that the Regulations, even beyond their specific restrictions on masking, gathering, and so forth will harm social stability, levels of trust, and cohesion on an additional level. By transferring responsibility for enforcement of these restrictions, compulsions, and discrimination from the executive branch of the state to organisations in civil society such as businesses, churches and other religious groups, educational institutions, and more, these elements of organised society are turned into executive agents of the state. Besides the constitutional impermissibility of this development, it has the further consequence of driving deep wedges between, on the one hand, a public which overwhelmingly rejects in one way or another the regulations and, on the other hand, the organisations that make up organised society. In the case of businesses, this risk is especially pertinent, given the frequency and scale by which they are victims of crime and targeted during social unrest. The breakdown of civil co-operation from these regulations will structurally raise the cost of operating as organised civil society, including of doing business, in South Africa, to lasting detriment of public welfare.