Health Minister Joe Phaahla is claiming “legal privilege” for emails from legal advisers that have landed in the hands of his opponents in a High Court bid to have regulations aimed at fighting COVID-19 and other serious diseases declared unconstitutional.
Business lobby group Sakeliga claims the minister ignored legal advice before promulgating amendments to regulations under the National Health Act, and has downloaded evidence that it says are evidence Phaahla had acted against all legal advice, and that there might have been irregularities in the processing of some 300,000 public comments.
The minister promulgated the "Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions: Amendment" in Gazette No. 43619, on 4 May this year, which included the mandatory wearing of face masks, restrictions on gatherings, and entry into the country, reports News24.
The regulations were repealed on 22 June, ending the mandate to wear masks in indoor public arenas, the restriction on the number of people at gatherings, and vaccination certificates to enter the country.
The emails sent to the minister were deleted from the department’s record of decision-making, after being made available to AfriForum, Dear SA, Sakeliga and the Liberty Freedom Fighters Network (LFN), which all filed High Court applications to declare the minister exceeded his powers and that the regulations were invalid and unconstitutional.
However, Sakeliga managed to download the entire record before the “legally privileged” data were deleted, revealing evidence that the minister had acted against all legal advice. The records also indicated that there might have been irregularities in the processing of some 300,000 public comments.
Sakeliga claims the deleted data will “greatly assist the court” in corroborating their claims that the regulations were “irrational” and designed for the “ulterior motive” of “enforcing a covert vaccine mandate” by extending restrictions made under the Disaster Management Act.
LFN claims legal privilege does not apply and the minister has no right to exclude “emails, comments, memorandums, recordings of meetings, transcripts and documents containing legal advice” exchanged with state law advisers, the State Attorney, Advocate Steven Budlender and Advocate Hasina Cassim.
On 24 May, private attorneys Bradley Conradie Halton Cheadle (BCHC) – appointed by the minister to compile and provide the record – made 20GB of data available for download by the applicants, in compliance with High Court rules.
Two days later, BCHC wrote to the applicants to claim that “due to an IT error”, an email comments folder uploaded “included privileged correspondence between our client and its counsel as well as confidential emails that should not form part of the record”.
They advised that the email folders had been “removed temporarily to assess which emails should be excluded before the folder can be re-uploaded”.
Too late, reports News24.
Sakeliga had already downloaded the data and found incriminating evidence, including reference to the applicants as organised groups “instigating chaos and terrorism against the state”.
Now the parties are in dispute about what is included in the record, and whether the minister has any right to legal privilege.
Sakeliga’s Tian Alberts said they would dispute the claim to legal privilege and continue to rely on the redacted data.
The LFN demanded a hard copy of the record, since the 20GB data dump amounts to millions of pages of information.
The court case is to be heard on 26/27 July, 2022, along with others brought by Solidarity, AfriForum and Dear South Africa.
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