Public participation group DearSA has released a slew of internal emails from the Department of Health (DoH), describing opposition to government’s proposed health regulations as “anti-progressive”, ‘instigating terrorism”, “sabotage” and “forcing government to waste resources” .
Writing in Moneyweb, Ciaran Ryan reports that the emails were discovered during a court process initiated by DearSA, which had received more than 300,000 comments on proposed changes to health regulations that would give the state unprecedented powers to contain future outbreaks of “notifiable diseases”.
Under the proposed regulations, the government will have almost limitless powers to forcibly test for notifiable diseases, impose mask mandates and forcibly quarantine South Africans at the order of a doctor, nurse or law enforcement official.
Of the more than 300,000 comments on these regulations received by DearSA, 95% were against them.
Four groups are highlighted as being engaged in “sabotage, instigating chaos or terrorism against the state”, according to the emails: AfriForum, DearSA, Liberty Fighters Network and Action 4 Freedom, all of which are involved in legal battles with government over the regulations.
DearSA filed papers in the Gauteng High Court (Pretoria) on 9 May to interdict the government from introducing health regulations without public comment.
This was after it extended the period for public comment of draft health regulations to 5 July, but simultaneously made permanent certain regulations under the National Health Act. This latter step is what motivated DearSA to head to court for an interdict, as it was done without any public comment whatsoever.
It was in the process of discovering documents in that court case that the departmental emails were uncovered.
“These emails clearly represent the views of a tiny rogue minority within the Department of Health, as we have good relationships with Parliament because of our work in engaging the public in the legislative process, as is required by the Constitution,” said DearSA project manager Rob Hutchinson.
He added that the emails showed “contempt for the public, and a complete disregard for the Constitutional obligation on government to foster public participation and listen to the views of the public”.
“Nowhere does there appear to be understanding of the legal obligations on the department and its staff, or any recognition of who they work for. It may be that the regulations are necessary, but that’s a decision for South Africans to make, not unelected bureaucrats.”
Perhaps even more alarming is another revelation in the emails, explaining how the Department of Health simply dismisses hundreds of thousands of comments for not being specific enough.
This is detailed in a decision tree explaining how the department should deal with submissions referring to a specific regulation – in which case they are accepted. Those that do not refer to a specific regulation are dismissed.
One Department email says: “The minister published the regulations for public comments, not to check whether the public supports the amendment or not.”
It adds: “The team (within the department) is of the view that these people have not read the regulations but have an overall view that they do not want the regulations. It looks like the four groups expect government to go through all the comments even if these are not substantive… just organised co-ordinated responses in the various websites of these groups.
“Their actions can be viewed as sabotage, instigating chaos or terrorism against the state. These groups are anti-progressive … forcing government to waste resources through the same responses or submissions.”
Attorney Daniël Eloff of Hurter Spies Attorneys, who is representing both DearSA and AfriForum, says these emails form part of hundreds of thousands of emails the health minister included in the court record.
“These emails are now part of what the court will consider when deciding whether the regulations are lawful and constitutional,” he said. “We believe it shows the state of mind of those making decisions … the public needs to be aware of how they are viewed by those tasked with making regulations. It is pretty shocking.”
DearSA makes clear on its website it does not organise petitions: these are treated as a single submission by parliament. Its purpose is to invite public participation on proposed legislative changes where each individual comment is treated separately and is not consolidated or grouped for the convenience of lawmakers. Each comment is delivered to Parliament without interpretation or editing.
This, says Hutchinson, is how public participation is carried out around the world, and it is not the job of DearSA to parse the comments received or reduce the workload on regulators.
“We expect them to read and take note of every comment. The Constitution requires them to do this, although we do provide government with a summary report and collated data.”
One Department internal email reads: “(The) government representative should communicate to these groups that the comment process is not about the number of comments submitted as if the decision is based on a survey to check how many people support the amendment but to make inputs to inform changes and correction of provisions in the regulation.
“Only one submission from each group should be inclusive for all their members’ views, the department will accept it even if there is a million comments but let each group consolidate their inputs into one document and submit as one.”
Interpreted literally, this means the more than 300,000 comments submitted by DearSA commentators will be treated as one, and given the same weight as a submission from a health-focused NGO employing half a dozen people.
By law, each comment sent via the DearSA platform must be considered individually, as DearSA campaigns provide a mandatory selection of “top concerns” in each campaign. These concerns are aligned with the clauses set out in any amendment Bill – contrary to what Department of Health officials claim in their emails.
“It is obvious the government doesn’t have any legitimate defence for these regulations,” says Gideon Joubert, CEO of DearSA. “Referring to concerned civil society organisations and ordinary citizens … as terrorists and saboteurs is ridiculous.”
DearSA’s and AfriForum’s case against the interim COVID regulations will be in court on 25, 26 and 27 July.
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