Is the High Court captured?
Action 4 Freedom's case to be heard on the Cape Town High Court on Tuesday 26th April 2022 will give us an indication
Context: South Africa only
A watershed case, case number 8515/22, brought by Action 4 Freedom, a Non Profit Company, and filed against the Minister of Health will be heard in the Western Cape High Court, at Cape Town on the 26th April 2022. The findings and judgement will indicate whether South Africa remains an albeit fragile but functioning democratic Republic governed by the rule of law or whether the High Court is no longer independent of the Executive having being captured by the ANC Communist Party government and is now merely a blunt instrument in the hands of the dictatorial ANC Communist Party government to be used to beat and subjugate South Africans to the government’s will as it has done for the last two years at least.
Under government notice number 46048, published in the Government Gazette on 15 March 2022, the Minister of Health published proposed amendments to the the National Health Act, 2003. The proposed amendments are draconian in the extreme and many, even most will not pass constitutional muster but these amendments are not the subject of this case.
The Health Minister correctly declined ministerial prerogative to publish the proposed amendments without public consultation which is available under Section 90(4)(c) of the Act, but only, “if circumstances necessitate the immediate publication of a regulation” and they most certainly do not.
Accepting the above, the minister correctly required public consultation given the gravity of the proposed amendments but only offered public consultation submissions to be made within thirty (30) days of the date of the publication of his Notice.
The Act is crystal clear on the matter of public consultation submissions; either the minister exercises his ministerial prerogative and declines the public consultation process, which is what he correctly did, or, as recorded in Section 90(4)(a) of the Act, the minimum period for public consultation is three months before the date contemplated for the commencement of such regulations. This cannot be refuted. In plain language, the minister does not get to dictate the minimum period for public consultation, the Act does and the minimum period is three months.
Action 4 Freedom submits that the minister’s Government Notice published under number 46048, is ultra vires and invalid meaning that the Notice never came into effect and they are correct.
In plain language, this means that the minister will have to start over from the very beginning and issue a new, correctly formatted government notice and that the minimum three month public participation process will only start after the date of the issue of the correctly formatted government notice. The law makes no allowances for time served or school boy errors so to speak, and so it’s back to square one for the minister.
Ramaphosa revoked the State of Disaster at midnight on the 5th April 2022 and in doing so all the Covid 19 Regulations fell away. Speaking on national television Ramaphosa decreed that certain Covid 19 regulations would remain in place for thirty days until the amended Health Act regulations were enacted. These included mask wearing indoors, social distancing, minimum numbers at gatherings and other completely non science based regulations designed to keep South Africans under the government’s dictatorial thumb.
This means that none of Ramaphosa’s post State of Disaster diktats have any force and effect because Covid Regulations can only exist under the State of Disaster which has been revoked.
Ramaphosa had hoped that he would only need to mislead and intimidate South Africans for thirty days because the amendments to the National Health Act would have come into effect on the 15th April 2022. But they have not, due to the Applicant’s Notion of Motion brought on the 14th April 2022. Right now the government has no Covid related dictatorial control whatsoever and from a legal perspective, South Africa has reverted to pre pandemic days.
This is why 26th April 2022 in the Cape Town High Court is a red letter day. There is no grey area, no speculation, no ifs and buts. The minimum public participation process is three months, not 30 days. The High Court has no reason or justification whatsoever NOT TO find for the plaintiff which will remove the government’s Covid 19 draconian dictatorial control that they have enjoyed and languished in for the last two years. Legally the Court must find for the plaintiff.
But what if the Court does not? Well that will indicate that the High Court is no longer independent and has become a blunt instrument in the hands of the dictatorial ANC Communist Party and the consequences of this are too ghastly to contemplate.