- Health Minister Zweli Mkhize proposed regulations that would give powers similar to that of the Disaster Management Act.
- These powers would be in effect even if there wasn't a state of disaster declared.
- The DA said it "gives an impression of a government desperate to retain power over its citizens".
Health Minister Zweli Mkhize wants powers to restrict South Africans even when there isn't a national state of disaster in effect.
In a hastily organised meeting of the portfolio committee on health on Tuesday evening, Mkhize presented a set of regulations that would give him powers akin to that which the Disaster Management Act confer on the Cooperative Governance and Traditional Affairs Minister during a state of disaster.
Mkhize told the committee that regulations would be "major ammunition to deal with the pandemic".
He said he discussed the proposed regulations with the National Health Council, which included all provinces, but it still needed to be tabled at Cabinet, which he intended to do on Wednesday.
He said at a certain point it would be more suitable to use the National Health Act rather than the Disaster Management Act.
The Disaster Management Act required the head of the National Disaster Management Centre to assess a disastrous event and whether it should be declared as a disaster in terms of the Act.
Then the responsible minister could declare a state of disaster, if existing legislation and contingency arrangements did not adequately provide for the government to adequately deal with the situation, or "other special circumstances warrant the declaration of a national state of a disaster".
Only then can the minister, in consultation with relevant colleagues make regulations that must assist and protect the public; provide relief to the public; protect property; prevent or combat disruption; or deal with the destructive and other effects of the disaster.
The National Health Act did not have these limitations.
It allowed the minister to make regulations on several matters, including communicable diseases, and notifiable medical conditions.
The National Health Act required the minister to "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", however, the minister could skip this step if "circumstances necessitate the immediate publication of a regulation".
Mkhize wanted to amend the Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions, which was made by his predecessor, Aaron Motsoaledi in 2017.
These regulations allowed the health minister to declare a medical condition as notifiable if in his or her opinion the medical condition - "(a) posed a public health risk to a population of a particular community, district, municipality, province or the country; (b) may be regarded as a public health risk or had a potential for regional or international spread; and (c) may require immediate, appropriate and specific action to be taken by the national department, one or more provincial departments or one or more municipalities".
Mkhize then wanted to include the power to "by Notice in the Government Gazette, publish further regulations to address, prevent and combat the spread of the notifiable medical condition".
He also wanted a regulation included as follows: "The Minister may, to ensure that all necessary and reasonable measures are put in place to manage and control the spread of the notifiable medical condition, by regulation published in the Government Gazette, impose necessary restrictions, relating to such notifiable medical condition."
- The complete or partial closing of any public place including a place used for public receptions, tourist activities or events or public recreation, amusement or entertainment activities or events;
- Prohibiting or regulating the holding of or attendance at any public meeting, public reception or any gathering within a district, province or nationally;
- Prohibiting or regulating inter-district or provincial movement of persons;
- Prohibiting or regulating the movement of persons at points of entry;
- Regulating specified hours requiring persons to remain indoors; and
- The complete or partial closing of any educational institution.
DA MP and spokesperson on health Siviwe Gwarube described the proposed amendments and the late-night briefing by Mkhize as "deeply concerning".
"It gives an impression of a government desperate to retain power over its citizens even outside of a legitimate State of Disaster by giving powers to the Minister which will allow him and the Executive to impose far-reaching restrictions," she said in a statement released on Wednesday.
She said the proposed regulations gave the Health Minister and more broadly the executive, unlimited powers to impose restrictions that would impede civil liberties.
"More importantly, these powers conferred to the Minister via the backdoor of the regulations make no provision for Parliamentary oversight and allow the Executive to impose restrictions without any checks and balances."
South Africa's legislative framework did not give Parliament any say in these regulations. However, Gwarube said the regulations were so far reaching that it should be brought before a full sitting of Parliament. She said she would write to Parliament's presiding officers in this regard.
She added: "We have seen Parliament sidelined and relegated to a mere spectator, all while massive decisions pertaining to the rights of citizens were taken.
"This was done in aid of our fight against Covid-19 - a legitimate global health disaster. We cannot allow this state of affairs to be normalised as though we do not live in a constitutional democracy," said Gwarube.
Chairperson of the portfolio committee on health, ANC MP Sibongiseni Dhlomo, welcomed Mkhize's consultation with the committee as it was not normal practice to consult Parliament on regulations.
ANC MP Kenneth Jacobs said at the Tuesday evening meeting that they supported the regulations.
On Wednesday, Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma announced that the state of disaster had been extended for another month.