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For anyone inclined towards the ‘Big Brother’ theory of government-constrained living, this treatise by the Pandemic, Data and Analysis outfit (PANDA), will confirm every one of your innate suspicions.PANDA says that nowhere else in the civilised world have the emergency regulations been concretised into permanent rules. Yet, in South Africa, once our state of disaster is lifted, (probably in the latter half of April), there will be no alert levels. Pandemic measures will become permanent features of life with no parliamentary oversight. PANDA says there’s now “a mountain of evidence” that masks do not work against Covid-19, flu and other airborne diseases. However, we will, in terms of the legislation used to replace the state of disaster, forever be required to wear a mask indoors, in an Uber, a taxi or on a train. We won’t be allowed to hug, hold hands, kiss or dance in public places unless we can find a way to do those things at a ‘social distance’. Seems we’ve gone from ‘racially immoral’ under the old regime to ‘infectiously immoral’ under the new. All I can say to that is: good luck, Big Brother! – Chris Bateman
Welcome to the permanent pandemic
With the publication of the proposed regulations under the National Health Act and the Code of Good Conduct under the Labour Relations Act, government has finally shown us what life looks like after two years of emergency regulation. The pressing question is whether the society being created with these regulations is one you want to live in?
Since the beginning of the pandemic, the regulations have been built on two pillars: generating fear amongst our citizens and a desire from government to control the actions of its people. These are the things we need to fight against.
Why public participation matters?
Public participation in law-making is a basic principle of democracy. Citizens either have input into new legislation through the officials they elect to parliament voting on new laws or they have input through legislated mechanisms for representation by interested and affected parties.
During the Covid-19 lockdown, the minutiae of our lives have been regulated without any parliamentary oversight. One would have expected that with the end of the state of disaster, citizens would finally get a chance to have their say. However, the new rules introduced by government will not be subjected to any parliamentary oversight.
The government seeks to make the bulk of the lockdown regulations permanent through regulations passed under the National Health Act. When the minutiae of our lives are being regulated, it is no longer about implementing a healthcare system. These are much broader regulations and if they do not require parliamentary approval – whether it be an amendment to the act itself or new legislation – what purpose or power does parliament retain?
As we head towards the end of the state of disaster, the minister of co-operative governance and traditional affairs gave the public less than 48 hours to comment on changes to the regulations. These regulations are still based on the Disaster Management Act (DMA), which gives the minister powers to regulate only while a state of disaster persists. The following provision of those regulations should be noted:
The provision in the regulations is extraordinary in that the DMA specifically grants the minister the power to make regulations only when a state of disaster exists.
What does this mean in reality?
When it comes to mandatory vaccination, the option to impose a mandate on employees is one that employers currently have under a direction passed in terms of the DMA regulations. When the state of disaster ends, these schemes will become illegal. Again, currently the government seeks to make them permanent without parliamentary oversight and the minister of labour has copied and pasted the direction into ‘Codes of Good Practice’. These codes are not law. They are simply guides employers must take into account when interpreting laws.
It is interesting to contrast the Code of Good Practice on HIV/Aids against the vaccine mandate code. The HIV code focuses on protecting the employee against discrimination, rather than empowering employers to discriminate, which is what the Covid-19 code does. The National Economic Development and Labour Council (NEDLAC) ordinarily has the power to draft codes, but the minister can publish one where NEDLAC has been unable to agree to the proposal. We must therefore presume that over the course of the last two years, the minister could not persuade NEDLAC to agree to mandatory vaccination. We must also recognise that the vast majority of South Africans (around 70%) have rejected vaccination.
Why is the legal status of the Code of Good Conduct important?
Constitutional rights, like the right to dignity, bodily integrity, equality etc. can be limited only by a law of general application. The Code of Good Conduct is not a law. The limitation of the right to bodily integrity, for example, cannot therefore be justified under the code. It could, conceivably, be justified under the Labour Relations Act (LRA), the interpretation of which is guided by the code. But if mandatory vaccination is constitutional without a dedicated law in place, it is not clear why the direction was needed in the first place.
The code also boldly states that judges, arbitrators, employees and trade unions must take the code into account when interpreting employment law and to the extent that the interpretation set out in the code stands until such time as it is set aside by a court.
What is clear though, is that in the new world that the government wants us to live in, public participation and parliament are regarded as nuisances rather than fundamental requirements of sound policymaking.
Why the rush?
The public was given only 30 days, instead of the mandated 90 days, to comment on the National Health Act Regulations and no time at all to comment on mandatory vaccination. Government’s only justification for the shortened time limits is that the state of disaster will end on 15 April 2022 and they need to have permanent laws in place before then.
If the state of disaster ends on 15 April 2022 and on 20 April 2022, Covid-19 cases skyrocket, the minister of co-operative governance can, of course, simply declare another state of disaster and roll out all of the DMA regulations once more. The idea that the state of disaster cannot end until the government has done what it has had two years to do has no basis in logic. A state of disaster can be declared only when there is an actual disaster, which there clearly has not been for some months. Creating an emergency so as to short circuit checks and balances is one of the oldest tricks in the book.
How bad could it be?
Life in the post-state of disaster world will, in many respects, be worse than it has been for the past two years.
The Health Act regulations are not based on the latest Covid-19 regulations but an older, harsher set. They apply the regulations not just to Covid-19 but to any “notifiable medical condition” (NMC) that spreads via droplets or aerosol (Covid-19 is spread via aerosol). The list of NMCs currently includes other airborne viruses like measles, tuberculosis and flu and the minister of health can add any disease to the list at any time.
In this new world, there are no alert levels. Pandemic measures are permanent features of life. Although there is now a mountain of evidence that masks do not work against Covid-19, flu and other airborne diseases, you will essentially forever be required to wear a mask indoors, in an Uber, a taxi or on a train. You will not be allowed to hug, hold hands, kiss or dance in public places unless you can find a way to do those things at a ‘social distance’. Although we know that Covid-19 does not transmit by fomites, like kindergartners you will be told to sanitise your hands everywhere. Work from home rules are permanent and if you employ someone, you must take steps to minimise the need to be physically present at work. You must restrict all of your face-to-face meetings to the minimum. You will face health screening whenever you travel internationally or locally and if you’re found to have symptoms of any NMC (a runny nose will suffice), government can send you off to an isolation camp. Airports will become clinics with vaccinations (apparently for all NMCs) offered to anyone who isn’t vaccinated.
When it comes to mandatory Covid-19 vaccinations, exemptions on constitutional grounds are a thing of the past. Only medical exemptions will be allowed and it is understood that medical experts are routinely only allowing proof of historical anaphylactic response to other vaccines as a qualifying medical exemption.
Government no longer makes any bones about the fact that the vaccines do not make spaces safer. Here is the definition of vaccines in the direction:
And here’s what it looks like in the code.
There is therefore an acknowledgement the vaccines do not contribute to herd immunity because they do not protect against infection and do not prevent transmission. Although it seems the government now accepts that the vaccines do not make spaces safer, in the new world, no stadium can admit more than 2,000 people unless spectators are vaccinated. A restaurant must implement a vaccine pass if it wants to utilise more than 50% of its capacity and yet the government still maintains it will never mandate vaccines in public places.
And in case you thought these rules wouldn’t apply to you, because you’ve had your shots, the defined term ‘vaccinated’ has been introduced through the Code.
This makes it clear that anyone can become unvaccinated at any time. With studies now showing the vaccine efficacy is negative after just three months, in principle anyone who hasn’t had a shot in the last 12 weeks could be considered unvaccinated by an employer.
The world that our government wants us to live in is a world no other country inhabits. Nowhere else in the civilised world have the emergency regulations been concretised into permanent rules.
What can you do?
Anyone can submit comments on the Health Act Regulations. You can submit objections to the Health Act Regulations via DearSA here and you can use PANDA’s pro forma comments, which will be available shortly. You can comment on mandatory vaccination here, but you cannot comment directly on the proposals in the code given the way in which they are being implemented. You can, however, write to your member of parliament. In reality, it is unfortunately unlikely these submissions will make a material difference; government is going through the motions. However, we must register our objections so it cannot be said that the public gave tacit approval.
You can help fund organisations bringing legal action against these regulations. That will certainly make a difference. We have a very good Constitution – potentially the most advanced in the world – but government has become adept at shifting strategies when legal blockages arise and they know that legal challenges take time. You can also help fund organisations that are fighting the battle by raising awareness, motivating people and arming them with data and arguments.
Nelson Mandela said, “One cannot be prepared for something while secretly believing it will not happen.” If you are happy to have regulations made without your input – regulations governing what you can buy, how late you can stay out, when you can travel, who you can socialise with, how you need to behave in public – then you need not do anything. The minister of health is ready to take over where the minister of co-operative governance left off. But if that is not the world you want to live in, ultimately, you will need to create it by standing up.
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