Judgment reserved in application to declare health regulations public consultation process unlawful

Judge Hayley Slingers reserved judgment in the High Court in Cape Town yesterday in an urgent application by justice NPO Action 4 Freedom (A4F) to have the public consultation process regarding draft amendments to the health regulations declared unlawful.

She said she would make a ruling by not later than Tuesday May 3. The deadline for submitting comments on the draft regulations, which the Minister of Health says are aimed at preventing the spread of Covid-19, ended at midnight on Sunday April 24. At a previous hearing, on April 14, Judge Slingers ordered that the Department of Health could not start processing comments before she made her finding on the application.

Questioned by the judge on the basis for making an urgent application, Advocate Sabelo Sibanda, for A4F, said the lives of 60 million South Africans are directly affected by the regulations which could result in citizens being forced to undergo medical treatment against their will.

The heart of A4F’s argument is that the Health Act requires the minister to give citizens at least 90 days to respond to proposed regulations. Sibanda said that the 30 days — and subsequent additional 10 days — that were allocated for comment did not give the majority of the population, who live in rural areas, an opportunity to participate in the process. He referred to another provision in the act which allows the minister to immediately publish regulations without consultation when exceptional circumstances prevail, but said no such conditions apply now.

Advocate Reg Willis, for the ACDP which was admitted as a friend of the court, supported Sabelo’s interpretation of the act.

Advocate Steven Budlender, for the Minister of Health, argued that, correctly interpreted, the act gives the minister discretion to publish regulations according to a spectrum of options, ranging from doing so without public consultation to publishing after a period of public participation of up to 90 days.

A live streamed recording of the proceedings can be viewed at this link.

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