NGO says it will appeal health regulations ruling, as government prepares to impose new measures

The Western Cape High Court

Action 4 Freedom (A4F) a Justice NPO which challenged the legality of the public consultations process regarding draft amendments to health regulations says it will appeal a decision by the Western Cape High Court to dismiss its application as soon as it receives a dated, court-stamped version of the judgment.

In a press statement released today A4F says that, in her judgment, Judge Hayley Slingers dismisses the Minister’s of Health’s interpretation of a section of the Health Act – and then, strangely uses the exact same interpretation as substantiation to dismiss the applicant’s case.

“The irony couldn’t be more obvious,” says the press release.

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Meanwhile, the Department of Health reportedly said today [the last day of mask mandates and other restrictions originally imposed via a national state of disaster] that it intends to impose new health regulations before the current restrictions expire at midnight.

Nicholas Crisp, deputy director-general at the department of health did not clarify whether the new measures would be stop-gap measures or the draft regulations which sparked a mass response from members of the public concerned that the regulations give the minister of health unaccountable power over citizens. If the latter, the department will surely face more legal challenges, inter alia on the basis that in the short time since the public consultation period ended on April 24, it cannot possibly have considered all of the hundreds of thousands of public submissions it received.

In today’s press release A4F says that on April 14 it took the minister of health to court on an urgent basis over the period of public consultation regarding the health regulations. The matter was postponed to April 26.

At the hearing last week A4F says it told the court that the Minister of Health’s use of section
90(4)(c) giving the public 30 days to comment on the regulations he intends to make law, is unlawful and ultra vires.

“We argued that if the Minister of Health published any regulations for public consultation, he must abide by section 90(4)(a) and allow at least three months for public comment.

“The government’s lawyers sought to convince the Court that the law gave the Minister of Health power to limit the minimum of 3 months for consultation to 30 days.

“The government could not show any proof of where in the National Health Act it states so.

“Judge Slingers reserved judgement to be handed down electronically to parties no later than 3rd May 2022,” says the press release.

A4F says that on April 29 it received an email with a document attachment handing down the judgement. It says the email came from the chambers of a judge who had not presided over the case. The registrar who sent the email was also not the registrar from the chambers of the judge who heard the case.

Furthermore, it says the judge who heard the case, her registrar and the Judge from whose chambers the email was sent, were not copied in on the email it received. The email containing the judgement was not dated, not court-stamped and had no names of the legal representatives of the parties.

“The judgement, at paragraph 26, categorically dismissed the Minister of Health’s interpretation of s.90(4)(c) of the National Health Act.

“'[26] …In any event, the criticism levelled by the respondent on the applicant’s interpretation of section 90(4)(c) of the National Health Act does not hold water and the respondent fails to provide substance for the interpretation it wants to afford to section 90(4)(c).” [emphasis added]

“Strangely, the judgement then goes on to use the exact same interpretation advanced by the government as substantiation to dismiss our case,” says the press release.

A4F says that on the day it received the emailed judgment it sent an urgent letter by email to the
judge, her registrar and copied in the person who sent the email, as well as the state attorneys.

It says it received no reply to the email in which it sought to obtain the dated and court-stamped version of the judgement from the chambers of the presiding judge.

The press release continues: “”We wrote again on the 30th April 2022. Again, we received no response.

“On Tuesday 3rd May 2022, we sent another copy of the letter to the Judge and her Registrar and followed up with a phone call.

“The Registrar of the Judge who heard the case sent an email stating that judgement had been handed down on 29 April. We wrote back to acknowledge the email and asked for the dated and court
stamped version of the judgement.

“The Registrar did not respond to our request for a copy of the original court stamped and dated version of the judgement.

“The Registrar, in a telephone call, stated that she could not send the court stamped dated version of judgement because she had problems with her email.

“Soon after the call, the Registrar sent us another email — but still without the version of judgement we several times asked for.

“The Registrar referred us to the other Registrar who sent the email and also the typists for a copy.

“All this time, despite having been copied in, we have not had any response from the Registrar who sent the first email.

“We wrote another letter to the Judge, her Registrar and all persons relevant to the matter.”

A4F says it intends to appeal as soon as it receives the dated, court-stamped version of the judgment.

The press release concludes: “The urgency and importance of this matter is demonstrated by the huge public interest and concerns about people’s right to lawful participation in the law making process for the protection of their human and constitutional rights.

“Organisations such as IFNASA, the ACDP, MiRiC, The RED LIST, Freedom Alliance SA, The Lioness Pride Movement and others representing millions of South Africans expressed their deep disappointment in the actions of government and pledged unwavering coordinated support towards the overall objectives
Action 4 Freedom (NPC) is fighting for.”

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