As the deadline approaches for public comments on the proposed changes to the National Health Act, several political parties and groups within civil society are gearing up to challenge the amendments in court.

In March, the Department of Health published proposed health regulations in the Government Gazette. According to the department, these regulations are meant to deal with Covid-19 and other notifiable medical conditions outside of a national state of disaster.

Foster Mohale, spokesperson for the health department, previously said these regulations will be used to introduce a number of control measures.

“These include the surveillance and the control of notifiable medical conditions, public health measures in points of entry, management of human remains and regulations relating to environmental health,” Mohale said.

The public has until April 24 to comment on the proposed regulations, but several political parties and other organisations have already indicated that they will take on government in court should they be made final.

Critics say the proposed regulations are a way for government to replace the National State of Disaster. One of these organisations includes the civil rights organisation AfriForum.

“The new regulations contain many measures promulgated during the State of Disaster that are a clear violation of our basic human rights. It is of particular concern that the new regulations include compulsory medical examinations, quarantine and treatment for people with ‘notifiable’ medical conditions. This despite the government not giving an indication what these ‘notifiable’ conditions are, and it being able to arbitrarily change the list of these conditions,” says Reiner Duvenage, a campaign officer at AfriForum.

Duvenage says the regulations are a way for government’s temporary powers under a national state of disaster to be permanently written into law.

Amendments to the act include the mandatory wearing of face masks for indoor events and access to public premises and public transport; a limit of 100 people at funerals; a limit of 1 000 and 2 000 people respectively at indoor and outdoor events; and a 50% capacity at larger events, with vaccine certificates required for access.

AfriForum has since sent a formal letter of demand to the health department. This letter also serves as the organisation’s written commentary on the amendments.

“We are also standing by to take these draft regulations to the highest court if our commentary does not succeed in prompting the government to discontinue the implementation of the regulations.”

Trade union Solidarity has since said that it would also submit its comments on the proposed regulations this week.

“Solidarity’s comment is being compiled by a team of researchers, health and legal experts. We are doing it properly, because it is in preparation for a possible court case. If government won’t change the regulations, it will lead to one of the biggest court cases in South Africa to date.

“According to our information, hundreds of thousands of people have submitted their comments and that it is overwhelmingly negative,” Solidarity stated on its Facebook page.

Both ActionSA and the DA have taken a strong stance against the proposed regulations.

ActionSA has instructed its legal team to prepare for an urgent court review should the regulations be adopted in their present form.

“ActionSA believes the regulations are unconstitutional and involve the ministers of health and cooperative governance and traditional affairs granting themselves powers that were never intended in our law or Constitution. Despite the president announcing the end of the National State of Disaster, the regulations allow the ministers to continue infringing upon the sacred constitutional freedoms of South Africans,” the party said in a media statement.

Some of ActionSA’s main concerns include permitting government to conduct forced medical examinations, treatment, preventative care, isolation and quarantine provisions.

“The regulations are not in line with South Africa’s enforcement capabilities. With ambiguous enforcement mechanisms, enforcement will be subject to the whims of individual law enforcement.”

In turn, the DA also said it unequivocally rejected the proposed regulations. “This set of regulations, if passed, has the potential to gravely transgress the rights of patients. Essentially, it is the ANC government’s way of clinging to power by extending the State of Disaster permanently through legislation,” the party said in a media statement.

Some of the DA’s greatest concerns include forced quarantine in the event of a Covid-19 case, forced testing and taking of bodily samples and a limitation on gatherings and funerals, which it says will continue to harm small businesses and the entertainment and restaurant industries.

The Minister of Health, Joe Phaahla, has since assured the public that government has good intentions in executing its mandate to protect the lives of South Africans.

“The introduction of the amendments to the existing health regulations is to ensure this is done logically and rationally. These health regulations are not new. They were promulgated in 2017. However, they do not make provision for the management of notifiable medical conditions of Covid-19 pandemic magnitude, which has never been experienced before,” said Phaahla.

The public can submit their comments via email at either legalreviews@health.gov.za or tsakani.furumele@health.gov.za, or via WhatsApp at 0600 123456.