Health Law

• Author: Grobbelaar-du Plessis, I.
• Published date: 28 March 2022
• Date: 28 March 2022
• Citation: 2020/2021 YSAL 545
• Pages: 545-630

545

1. INTRODUCTION

This chapter on health law was authored for the f irst time by members of the

Centre for Law and Medicine in the D epartment of Public Law, University

of Pretoria. Building on the approach followed by our predecess or, Andra le

Roux-Kemp¶, we decided to take a broad view of ‘health law’ as a disc ipline.

The discipline is i nterrelated with other fields of law, as well as social

science. Where ‘medical law’ historical ly applied mostly to the relationship

between the patient and the hea lthcare provider, ‘health law’ encompasses

all aspects of medica l law, including public health considerations and access

to health services, which i ncludes the right to exercise and enjoy the highest

attainable standard of healthc are services, without discriminat ion.

To provide an in-depth analysis of all the legal developments in t he field

of health law over the past year would be an impossible feat within t he

scope of this chapter. Instead, we simply attempt to provide a brief overview

of the sum of developments over the past 12 months. As would be expected,

the COVID-19 pandemic resulted in a surge of legislation and jurispr udence

about regulating and mai ntaining public health. The legi slation is discussed

in part 2 of this c hapter. In part 3, almost 40 judgments from the South

African superior court s are discussed, three of which a re from the country’s

apex court and four from the Supreme Court of Appeal (SCA).

Health LawHealth Law

Ilze Grobbelaar-du Plessis*, Pieter Carstens†, Marno Swart‡,

and Chrislie Thomas§

* BIur LLB LLM LLD (Pret); Associate Professor in the Department of Public Law,

University of Pretoria. ORCID: https://orcid.org/0000-0001-8940-3540.

† BLC LLB LLD (Pret); Professor in the Department of Public Law and Director of the

Centre for Law and Medicine, University of Pretoria.

‡ BA LLB (Pret); Assistant Lecturer in the Department of Public Law and LLM candidate in

the Centre for Law and Medicine, University of Pretoria. ORCID: https://orcid.org/0000-0001-

8863-2923.

§ BSc LLB (Pret); Assistant Lecturer in the Department of Public Law and LLM candidate

in the Centre for Law and Medicine, University of Pretoria. ORCID: https://orcid.org/ 000-

0003-1403-8707.

¶ BA LLB LLD (Stell) CML BMus Hons BMus (SA); Associate Professor and Reader in Law,

University of Lincoln (UK).

2020/2021 YSAL 545

© Juta and Company (Pty) Ltd

YeArbooK oF south AFrICAN LAW

546

The high occurr ence of infants suffer ing from cerebral palsy due to

healthcare providers’ negligence in public hospitals i s of particular concern:

a quarter of all the judgments d iscussed addresse d issues of this natu re.

This highl ights the many risks that mothers and foetu ses face, and the duty

of care that is imposed on med ical personnel in ou r hospital. In light of

this, the decision in S v Van der Walt, discussed i n para 3.10, is of particular

importance. Dr Van der Walt, an obstetrician and gy naecologist, was charged

and convicted in the court a quo on a cou nt of culpable homicide, a decision

which was subsequently overturne d on appeal. These cases, together wit h

issues of health profession regulation a nd run-of-the-mill negligence cases,

form the bulk of the dis cussion.

2. LEGISLATION

2.1 COVID-19: NOTICES PUBLISHED IN TERMS OF THE DISASTER

MANAGEMENT ACT1

The following notices were promulgated under the Dis aster Management

Act, in relation to the present and ongoing coronavi rus pandemic:

• Measures to prevent and combat the spread of COVID-19: Home Affairs:

Alert level 1: GG43749 GN1029 on 30 September 2020.

• Guideline: Measures to prevent and combat spread of COVID-19 in tourism

facilities, services a nd products: Amendment: GG 43731 GenN 514 on

23 September 2020.

• Mandating of short code for National Emergency Ser vices: GG 43729

GenN512 on 23 September 2020.

• Regulations: Alert level 1 during COVID-19 lockdown: Amendments:

GG43727 GN1011 on 20 September 2020.

• Determination of Aler t levels and hotspots: COVID-19 Alert level 1 will

apply nationally from 00h01 on 21 September 2020: GG43719 GN998 on

18 Septembe r 2020.

• Regulations: Alert level 1 during COVID-19 lockdown: GG43725 GN999

on 18 September 2020.

• Directions: Measure s to prevent and combat the spread of COVID-19 in

public transport serv ices: Amendment: GG43716 GN996 on 16 September

2020.

• Directions regard ing re-openi ng of schools and measures to addre ss,

prevent and combat spread of COVID-19: GG 43715 GenN 503 on

15 Septembe r 2020.

• Extension of National State of Disaster under COVID-19 lockdown:

GG43713 GN995 on 14 September 2020.

1 57 of 2002.

© Juta and Company (Pty) Ltd

heALth LAW 547

• Directions: Measure s to prevent and combat the spread of COVID-19

under Alert level 2: Phased retur n of children to early ch ildhood

development: GG43710 GN993 on 11 September 2020.

• Directions: COVID-19 Alert level 2: Courts, court precincts and ju stice

service points: GG43709 GN992 on 11 September 2020.

• Directions: Measure s to address, prevent and combat the spread of

COVID-19 regulations to National Environmental Management per mits

and licences: GG43696 GN970 on 9 September 2020.

• Directions: Measure s to address, prevent and combat the spread of

COVID-19 relating to air services: Amendment: GG 43695 GN 969 on

9 Septemb er 2020.

• Directions: COVID-19 temporary employee/employer relief scheme:

GG43693 RG11172 GN968 on 7 September 2020.

• Measures to address, prevent and combat the spread of COVID-19 in

all correctiona l centres and remand detention faci lities in South Af rica:

GG43688 GN967 on 4 September 2020.

• Measures to prevent and combat spread of COVID-19 in public transport

services: GG43679 GN953 on 2 September 2020.

• Measures to address, prevent and combat spread of COVID-19 in railway

operatio ns: GG43675 GN950 on 2 September 2020.

• Measures to prevent and combat the spread of COVID-19 in sports, arts

and culture: Amendment: GG43667 GN943 on 28 August 2020.

• Air services di rections: Amendment: GG43651 GN924 on 25 August 2020.

• Public transport dir ections: Amendment: GG43652 GN925 on 25 August

2020.

• Directions on ri sk adjusted strategy for tourism facil ities, services and

products and guidelines to prevent and combat spread of COVID-19:

Amendment: GG43653 GenN452 on 25 August 2020.

• Measures to prevent and combat the spread of COVID-19: Home Affairs:

Amendment: GG43650 GN923 on 25 August 2020.

• Measures to address, prevent and combat spread of COVID-19 at seaports:

Amendment: GG43629 GN895 on 20 August 2020.

• Alert level 2 during COVID-19 lockdown: GG43620 GN891 on 17 August

2020.

• Extension of National State of Disaster under COVID-19 lockdown:

GG43616 GN889 on 15 August 2020.

• Direction: COVID-19 temporary employee/employer relief scheme:

GG43611 RG11161 GN878 on 13 August 2020.

• Measures to prevent and combat the spread of COVID-19 in the health

sector: Amendment: GG43600 RG11159 GN868 on 7 August 2020.

© Juta and Company (Pty) Ltd