DearSA: The Public Participation Process Over Proposed Health Care Rules is a ‘Sham’ and ‘Irregular’

More than 95% of 280,000-plus DearSA comments from members of the public have come out against proposed health care regulations.

DearSA has written to the Director-General (DG) at the Department of Health informing him that the public participation process over proposed changes to health regulations is a ‘sham’ and ‘irregular’ after numerous participants received notifications that their emails had been deleted without being read.

The DearSA campaign elicited an unprecedented level of public response, with more than 226,000 comments from South Africans (that figure has since risen to more than 285,000) – more than 95% of them opposing the proposed changes to health regulations. Allowing just 30 days for public comment on draconian changes in health regulations is unconscionable, given the regulations are contained in 153 pages and, if allowed to pass, will materially and adversely affect the rights of all South Africans.

Even more concerning is a notice published in the Government Gazette on 4 May 2022, which on the one hand extends the period for public comment on these draft regulations to 5 July 2022, but on the other hand makes permanent certain regulations under the National Health Act. Various commentators have pointed out the permanent application of certain health regulations while awaiting comment from the public over many of these same regulations is a duplicitous and cynical move by the government.

DearSA has filed papers on 9 May 2022 to interdict the government from introducing health regulations without public comment.

The Minister of Health has used a clause in the Act which allows him to permanently introduce regulations – covering such vital issues as mask-wearing, the size of outdoor gatherings and vaccine certificate requirements for people travelling to and from South Africa – without having to submit these regulations for public comment.

DearSA says the draft regulations are unlawful, and the Minister of Health has gone outside the powers granted him under the National Health Act. “The Act is concerned with regulating the provision of healthcare services across all branches and spheres of government, not with managing public healthcare emergencies, such as the Covid-19 pandemic,” says DearSA’s submission to the DG.

“The Minister should also be wary not to be seen to attempt the crystallisation of Covid-19 state of disaster- era regulations by means of enacting subordinate legislation by improper means and through unsuitable Acts of parliament, as this would also be ultra vires conduct which is contrary to good governance.”

A sampling of the comments received by DearSA suggests many people see these regulations as forced vaccination by stealth, with the government awarding itself vast powers to forcibly test for notifiable diseases (such as Covid), impose mask mandates and forcibly quarantine South Africans at the order of a doctor, nurse, law enforcement official.

Notifiable diseases are those required by law to be reported to government authorities. There’s a whole list of them published and updated by the National Institute for Communicable Diseases (NICD). It includes Cholera, Yellow Fever and Smallpox.

Under these proposed regulations, you may not refuse medical examination or treatment.

“DearSA submits that the Minister should take these statistics (from the DearSA campaign) and the evident opposition against the proposed health regulations into serious consideration. The value of public participation is for the public to have a say in decisions about actions that could affect their lives and failing to give any regard to these inputs would render public participation meaningless and empty,” according to DearSA.

DearSA attorney Daniel Eloff says the country has been severely disrupted for more than two years and is now faced with a new set of proposed regulations that were initially deemed ‘emergency measures’ and ‘extraordinary steps’.

“No reasons are provided by the Minister as to why these ‘emergency measures’ and ‘extraordinary steps’ should now suddenly become permanent features of South African life while the Covid-19 pandemic is clearly waning,” says Eloff.

Rob Hutchinson, chairman of DearSA, says the regulations should be withdrawn in their entirety and referred back to the legislature for “thorough re-examination and reconsideration to address the various problems and illegalities pointed out in this submission.”

“We have also recommended that the period for public comment should be extended to 90 days, which should run de novo when the current 30 days lapses.”