Legal Articles

The Department of Health published the amended National Health Act regulations on 15 March 2022, in line with the government’s decision to further manage the Covid-19 pandemic under the National Health Act of 2003. As we might be aware, the pandemic had been managed under the Disaster Management Act of 2002, which provided for the legal framework under which the National State of Disaster was declared in 2020. In his address to the nation on 4 April 2022, the President of South Africa announced the termination of the national state of disaster, citing that the pandemic will be managed under the National Health Act of 2003 (largely, not exclusively).

It is noteworthy to point out that the inserted and published regulations are aimed at managing the spread and control of the SARS-Cov-2 in particular, and other notifiable medical conditions (NMCs) in general. The Covid-19 virus was indeed added to the NMCs listed in the Annexures of the regulations several months ago when the virus wreaked havoc. It is widely accepted that the amended regulations were aimed to accommodate the Covid-19 virus, and yet they are general in nature to cover the other NMCs regardless of differing characteristics.

Regulation 16A (3) provides for a prohibition to use any form of public transport or entering into public premises, without a mask covering the nose and mouth, or a homemade item achieving the same purpose, when indoors of such public premises. The shortcoming with this provision is that it is divorced from the reality on the ground especially when it comes to enforcing such a measure. Even during the national state of disaster, these practices, despite being made mandatory by the regulations that were in force as per the national state of disaster, were largely not followed, less monitored nor enforced especially in public taxis or trains. It could have assisted, to thrust more efforts towards the promotion of vaccination.

The economy and businesses in particular have seen and acted on the necessity to adopt methods that reduce physical contact of individuals as far as possible. From a labour perspective, it is true that it may be difficult to ascertain whether employees working from home, are actually working from home. In order to reduce the chances of transmission however, it remains necessary to encourage remote working where it is possible without crippling the operations of the business. Regulation 16A (6) (a) captures this reality and encourages employers to consider such a measure as far as possible.

There seems to be a conflict between the provisions in regulation 15A (1) (a) (b) (c) (ii) and (iii) with the prevailing policy on quarantine and the taking of prophylaxis. The provisions mentioned above provide that a person who is suspected of having contracted, has been in contact with a confirmed case, or has been confirmed as a case themselves, of an NMC listed in Annexure A, Table 1, 2 or 3, may not refuse quarantine, mandatory prophylaxis, treatment or isolation. This is inconsistent with the current policy whereby no quarantine is required as long as a person is not showing any symptoms despite being in contact with a confirmed case. Further, the only prophylaxis for Covid-19 at the moment is, vaccination, which surprisingly is still voluntary at the moment. In fact, the Deputy President assured the nation a few days ago that vaccination will remain on voluntary basis.

In conclusion, the draft regulations are still open for comment within 30 days from the date of their publication. Interested parties are invited to comment using the allocated channel, before they are promulgated.

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