Action 4 Freedom vs The Health Minister 26 April 2022 Results

In the build-up to the Hearing of the Case brought by Action 4 Freedom (NPC) v Minister of Health, a large crowd of people gathered at Court in support of Action 4 Freedom (NPC) legal team and the case they were there to argue.

The Hearing was conducted online and the facility was occupied to full capacity by members of the public.

Action 4 Freedom (NPC), on 29th March 2022, wrote a letter to the Minister of Health raising their concern about the 30 day period offered for public consultation regarding the National Health Act Regulations Amendments contemplated.

The Minister of Health, on 15th March 2022, published Notices for public comment under Gazette Number 46045. On the same day, 15th March 2022, the Minister of Health published a second set of Notices under Gazette Number 46048 which replaced all Notices under Gazette Number 46045.

Despite Notice Number 1884 published under Gazette Number 46048 referencing s.90(4)(a) of The National Health Act, the Minister still offered the public only 30 days to comment.

Section 90(4)(a) of the National Health Act states:  “The Minister must publish all regulations proposed to be made under this Act in the Gazette for comment at least three months before the date contemplated for their commencement.” [emphasis added]

In publishing Notice Number 1882 under Gazette Number 46048, the Minister of Health referenced section 90(4)(c) — a section which permits the immediate publication of a regulation, if circumstances necessitates, without the consultation contemplated in s.90(4)(a) — but still the Minister offered 30 days consultation.

In Court, the Minister of Health’s legal representation sought to persuade the Court that s.90(4)(c) gave the Minister scope to limit the minimum period of three months to 30 days.

The state’s argument was swiftly rebutted by Adv. Sabelo Sibanda who challenged the state to show the public where in the National Health Act such power of the Minister was provisioned for.

The State could not support their position and instead relied on an interpretation which essentially invented new provisions not found in the Health Act by any stretch of the imagination or interpretation.

Adv. R. Willis representing the African Christian Democratic Party (ACDP) as Amicus Curiae, levelled seasoned references of law which substantiated the interpretation as advanced by Adv. Sabelo Sibanda, and not that of the Minister of Health.

The state also sought to persuade the Court that the matter brought to Court was premature and that the applicant should have waited for the regulations to be finalised first.

Adv. Sabelo eloquently rebutted the state’s assertion and made it categorically clear that the regulations themselves are not the point of dispute in these proceedings, because they are not yet law.

At issue, is that of the statutory minimum period for public consultation of at least three months as provisions in the Health Act, contradicted by the Minister of Health’s Notices.

The proposition by the state suggests a response after the fact.

It was also pointed out that in Notice Number 1883, the Minister of Health made reference to section 3(2) of the International Health Regulations Act (Act 28 of 1974) as the basis for the amendment of regulations in contemplation. Adv. Sabelo pointed out in Court that this was a Presidential power and not a power the Minister of Health.

Again, on this point the state offered no substance in reply.

Adv. Sabelo Sibanda submitted that the Minister’s notices for public consultation was and remain inconsistent with the provisions of the National Health Act, the intensions of the Constitution and the common law established by the Constitutional Court for meaning of the word “must” as contained in s.90(4)(a) of the Act.

Adv. Sabelo Sibanda, asked the Court to declare the Minister of Health’s Notices as issued ultra vires, invalid and to be withdrawn. He said that, whilst the Minister of Health has the power to make health regulations, he must, when engaging the public for consultation thereon, allow the public the statutory minimum of three months as provided in the Health Act.

Honourable Judge Slingers reserved judgement and said that judgement will be handed down electronically to the parties over the course of the next few days, but not later than 3rd May 2022.

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

Source: Action 4 Freedom

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