The Public Health Bill, 1999

PART XVI: GENERAL PROVISIONS

Powers of entry and inspection and penalties for obstruction

165. (1) Any public health officer or environmental health officer of the Ministry, or any police officer or any other person generally or specially authorised by the Minister, and any environmental health officer or any other person authorised by a local authority, may at any reasonable time for the proper execution of the duties provided by or in this Act, enter any land, place, premises or thing to make any inspection, or any thing which such person is required or authorised by this Act or any other law to do, if such inspection, work, or thing is necessary for or incidental to the performance of such person's duties or the exercise of such person's powers.

(2) Any person, who fails to give or refuses access to any officer or person so authorised under subsection (1) entry, execution or investigation as stated or required under this section or Act, or who obstructs or hinders such authorised person or officer in the execution of the duties given or required under this Act, or who fails or refuses to give information that may lawfully be required and be given to such authorised person or officer, or who gives such authorised person or officer false or misleading information knowing it to be false or misleading, commits an offence.

Protection of officers and other persons

166. No report made or action taken or thing done, by the Minister, the Director of Health Services, environmental health officer or any generally or specially authorised officer or person or body of persons or a local authority, in the exercise of any powers conferred or in the performance of any duty imposed by this Act, shall subject any of the named persons in their personal capacities or otherwise to any legal proceedings whatsoever, provided such report or action was made or taken in good faith and without negligence.

Protection of the Government, local authorities and other persons

167. (1) Whenever and whilst in exercise of any powers conferred, or the performance of a duty imposed by this Act or any other law relating to public health, on the Government, Minister, any officer or any authorised person thereof, or a local authority, any officer or authorised person thereof, it is alleged by any person that the Government or any of the other named persons have caused injury to any person or damage to any property, or otherwise to have detrimentally affected the rights of any person whether in respect of property or otherwise, it shall be a defence in such legal proceedings brought against the Government or such other named persons that the defendant or respondent, as the case may be, used the best known or the only or the most practicable methods in the exercise of the powers or the performance of the duties as earlier stated.

(2) In the case of such proceedings against a local authority or such other authorised officer or person, a certificate signed by the Principal Secretary or the Director of Health Services or the Director of Veterinary Services that the defendant or respondent has, with regard to all the circumstances, used the best known or the only or the most practicable and available methods, shall be accepted by a court as prime facie evidence of the fact until the contrary is proved.

(3) The Principal Secretary or Director of Health Services or the Director of Veterinary Services shall not sign the certificate referred to in subsection (2) if the Principal Secretary or the Director of Health Services or the Director of Veterinary Services does not believe that the best known or the only or the most practicable methods were used.

Establishment of public laboratories

168. (1)The Minister may, subject to such conditions as the Minister may think fit and proper in each case, determine the establishment or cause to be established laboratories or other institutions engaged in carrying out research or investigations regarding human diseases or any other issues relating to public health.

(2) Subject to the conditions the Minister may think fit and proper and each case being determined by it's own particular circumstances, the Minister may contribute or cause to be contributed towards costs incurred or to be incurred by a local authority, educational institution, public voluntary society or mission or such other non-governmental body, in connection with maternity welfare, child welfare, training of nurses, public health nurses, environmental health officers, meat inspectors, doctors or any other matters not mentioned in this section but concerned with or relating to public health.

Reciprocal notification and consultation between ministries

169. (1) There shall be a system of reciprocal notification as to outbreaks or threatened out breaks of diseases liable to affect (the public health) both human beings, birds and animals, and such other diseases and of consultation as to the making of regulations or the taking of measures in connection therewith, between the Ministry and the Ministry or department responsible for -

(a) veterinary services;

(b) bulk water, rural water, urban and peri urban water supplies;

(c) importation of food and other consumables;

(d) occupational safety and health of employees; and

(e) other bodies, person or ministries and departments as the Minister thinks necessary.

(2) The Minister shall take the first initiative to ensure the implementation and successful operation of subsection (1).

(3) Whenever, under this Act, it is necessary to determine the presence or absence of a disease in a live animal, only the certificate of an approved veterinary surgeon shall be evidence.

Collaboration and liaison with other sector agencies on public health issues

170. (1) There shall be, any person being the initiator, a close collaboration and liaison between the Ministry and other sector agencies, including local authorities, voluntary organizations, non-governmental organization (national and international), missions, men associations, and women associations, that perform duties on public health or related to public health, including the United Nations agencies and bodies such as World Health Organization, UNICEF and others.

(2) Whenever desirable, the Minister may establish or cause to be established committees, on such terms and conditions as the Minister alone or with another minister think fit, to foster collaboration and effective communication and consultation between the Ministry and various agencies, persons, ministries or bodies on issues pertaining to public health.

Rights of persons to recover for damages suffered

171. Subject to the provisions of this Act respecting compensation, liability and non liability of the Government and its officers, local authorities and its officers and other authorised persons so empowered by this Act to perform certain duties and functions, nothing in this Act shall be construed as depriving any person of any right that person may possess to institute legal proceedings and to obtain a specific performance order or to obtain damages in a competent court of law for loss or injury sustained through the negligence of any person to whom a duty is imposed by this Act.

Fraudulent conduct respecting certificates specified under this Act

172. Any person who -

(a) for the purposes of obtaining a certificate under this Act, makes a false statement or is a party to any false pretence or conduct, knowing it to be false;

(b) forges or falsifies a certificate under this Act, or keeps or accepts any such forged or falsified certificate knowing it to be forged or falsified; or

(c) uses or attempts to use a forged or falsified certificate, or uses or attempts to use any other document or certificate under this Act, knowing it to being not a certificate or being a forged or falsified certificate or document, commits an offence and liable, on conviction, to a fine not exceeding ten thousand Emalangeni, which fine the Minister may amend by notice published in the Gazette, or to imprisonment for a period not exceeding two years or to both such fine and imprisonment.

Powers of a local authority to act outside its jurisdiction

173. Nothing in this or any other law governing jurisdiction of operation of local authorities shall, for purposes of this Act, be construed as preventing a local authority from exercising any power or performing any duty on public health under this Act by reason that in exercising such power or performing such duty on public health, it shall do some act or thing or incur expenditure, outside its area of jurisdiction.

Supremacy of this Act

174. (1) Save as is specially provided in this Act, the provisions of this Act shall be deemed to be in addition to and not in substitution for any provisions of any other law respecting public health which are not in conflict or inconsistent with this Act.

(2) Pursuant to subsection (1) and subject to subsection (3) where there arises minor inconsistencies or conflicts between this Act and another Act respecting public health, it shall be lawful to allow or make modifications of those inconsistencies or conflicts to comply with the provisions of this Act.

(3) Where the inconsistencies or conflicts can not be cured under subsection (2), the provisions of this Act shall prevail.

The burden of proof in respect of knowledge of infection or disease

175. (1) In any legal proceedings, criminal or civil, under this Act, relating to an infection or infecting or communicable disease or transferring a communicable disease or infection, or an article or thing alleged to have been exposed to or contaminated with an infection or disease, whenever it is an issue in the proceedings that the accused or the defendant knew that the accused or defendant or any other person was infected with such disease or infection, or that the article or thing was so exposed it shall be deemed that the accused or defendant had such knowledge until the accused or defendant satisfies the court to the contrary.

(2) For purposes of removing doubt, the person who may be the accused or defendant, as the case may be, shall have the onus of convincing the court that as an accused person or defendant that person did not have the knowledge of the existence of any infectious disease or communicable disease or infection in the person of the accused or defendant or on such other similar circumstances.

Defect in form not to invalidate

176. A defect in the form of any notice given or order made under this Act shall not invalidate or render unlawful the administrative action, or be a ground for exception to any legal proceedings which may be taken in the matter to which such notice or order relates, provided the requirements thereof are substantially and intelligibly set forth.

Service of Notices

177. (1) If under this Act any notice or other document required to be given to any person, the same shall be deemed to be sufficiently served if sent by registered post addressed to that person's last known place of abode or left thereat with that person personally or with some adult inmate thereof, and in the case of a notice, order or other document required to be given to an owner or occupier of land or premises whose abode after inquiry, is unknown, the same shall be deemed to be sufficiently served if posted up in some conspicuous place on such land or premises.

(2) It shall not be necessary in any notice, order or other document given to an owner or occupier of land or premises to name the person but the notice, order or document may describe the person as owner or occupier of the land or premises.

Prohibition on smoking of tobacco in certain public places

178. (1) The Minister, by notice published in the Gazette, may prohibit the smoking of tobacco in certain public places, or part of such public places, taking into consideration the rights of smokers and non-smokers.

(2) The Minister may further, where deemed fit, demarcate or designate areas in public places as smoking areas and non-smoking areas.

(3) The Minister may make regulations, published in the Gazette, in respect of the importation, storage, display, advertising, selling and delivering whether for a charge or not of tobacco and tobacco smoking or consumption or intake in whatever form or manner or for anything in respect of tobacco.

(4) The notices, orders or regulations made under this section may prescribe offences and penalties, which penalties may include, the offender being sent to rehabilitation centres or commitment to community work.

(5) In the event or period before the Minister prescribes penalties or anything in terms of this section, any person who fails to comply with a notice, order or regulation, issued by a competent authority, including an administrator of a public place, commits an offence and shall be committed to a sentence to be determined by the court, which sentence may be a fine or community work for such number of hours or days as the court thinks fit.

Prohibition of smoking tobacco and other acts by young persons

179. (1) No person shall sell or deliver tobacco in a form intended for smoking or inhaling, whether as a cigarette, cigar or such similar form, to a person under the age of eighteen years.

(2) No person under the age of sixteen years shall smoke tobacco or product of tobacco in whatever form.

(3) The Minister may make regulations or orders in respect of protecting expectant mothers, unborn babies and infants from direct or indirect effects of tobacco smoking.

(4) The Minister may make any regulations for the purposes of this section.

(5) Any person who contravenes subsections (2) or (6) or (7) commits an offence and on conviction shall be liable to a sentence to be determined by a court, which sentence may be committal to a rehabilitation centre or community service or any appropriate sentence the court thinks fit.

(6) It shall be an offence to inhale, consume or ingest or drink any substance of whatever description with the intention of being intoxicated, drunk, loss of sobriety or be mentally incapacitated unless the legal use of that substance is intended for that purpose and the law permits such use and by that person.

(7) It shall be an offence for a person under the age of eighteen years or a person attending school or other educational institution excluding a college, a university or such like institutions of higher learning to be drunk, or intoxicated or to have taken an alcoholic drink or beverage in excess of 0.8 per centum in the blood when expressed in milligrams per one hundred millilitres of blood, in a public place.

(8) Any person who contravenes subsection (1) or any other provision of this section where a penalty is not specified shall, on conviction, be liable to a fine not exceeding two thousand Emalangeni, which fine the Minister may amend by notice published in the Gazette, or to imprisonment for a period not exceeding six months.

(9) In addition, a person convicted under subsection (8) may be liable to have that person's trading licence revoked under this section or some other law.

Protection of women and children

180. (1) In the interest of promoting public health amongst all the people of Swaziland and in particular the women and children the Minister alone or in consultation with the Minister responsible for women affairs or issues shall, in addition to subsection (2), (3) and (4) of this section, make regulations and orders in respect of affirmative action concerning women in particular or general, pregnant women, children and persons under the age of majority.

(2) A pregnant woman shall not be subjected to strenuous, dangerous or difficult work by any person, including a parent, husband, in-laws, employer or any other person for that matter.

(3) No person shall, without a legally or medically accepted reason or excuse, assault or cause to be assaulted a pregnant woman, or expose such woman to dangerous drugs, radio-active material or substance or condition that may be injurious or dangerous to that woman's health or the baby's health or the yet unborn baby's health.

(4) No person shall deny treatment or vaccination or any medical care, when it is necessary or required, to any child or woman.

(5) Any person who contravenes a provision of this section or regulations or orders made under this section commits an offence.

Protection for all

181. (1) In the interest of a healthy nation and in the interest of public health the Minister alone or in conjunction or consultation with other ministers or other bodies, including men or women bodies, shall make regulations respecting affirmative action for disadvantaged persons or group or class of such persons irrespective of gender.

(2) The Minister shall make regulations to discourage and outlaw any conduct of bodies or organizations that seek to create hatred or enmity between the sexes, due regard being given that hatred may lead to mental disorders.

(3) Every person shall have access to medical care or treatment notwithstanding the fact that the person is indigent and the Minister, for purposes of this subsection, shall ensure the Government provides for the medical treatment and care for the indigent and the Minister for this purpose may set standards to be used or guidelines to be used for classifying and identifying persons who are indigent.

(4) The Minister, for the purposes of affirmative action, shall make regulations respecting public health of the aged persons, the terminally ill persons, disadvantaged persons, indigent, homeless persons, mentally sick persons and such other persons the Minister thinks fit.

(5) No person shall sell or deliver to any person under the age of eighteen years intoxicating liquor unless the Minister in writing has so authorised, or generally by regulations published in the Gazette has so authorised.

(6) No person shall be drunk in or near a roadway, highway, freeway or railway line, or shall be found on examination to have an alcohol content exceeding 0.8 per centum in that persons blood when expressed in milligrams per one hundred millilitres of blood.

(7) A police officer or citizen may on reasonable suspicion detain or cause to be detained, or examined by a nurse or doctor, any person suspected to have contravened subsection 6 of this section and the detention shall be for a reasonable time and in a place of safety and no criminal or civil liability shall lie against such officer or citizen.

(8) Regulations made under this section or Act shall be published by the Minister in the Gazette and may prescribe offences and penalties.

(9) Nothing in this section or Act shall be construed as limiting or prohibiting the Minister to issue orders and make internal regulations which may not be published in the Gazette for administrative purposes.

Regulations in respect of traditional healers and medicine

182. (1) The Minister shall make regulations regulating the practice of traditional healers and such like healers for the purposes of public health.

(2) The Minister shall establish a communication system between the Ministry and the traditional healers or their association or body of such persons.

(3) The Minister may make regulations with a view of harmonising the practice of traditional healers with that of imported medicine practice and for that reason may hold consultative discussions whenever necessary for the improvement of public health.

(4) The Minister or such other authorised body shall keep a register of all practising traditional healers .

(5) No traditional healer shall practice as such without a practice certificate issued by the Minister and the certificate shall be valid for a period not exceeding two years from the date of issue or such time as may be determined by the Minister.

(6) The Minister may refuse to issue the certificate if the Traditional Healers Association or such other representative body of traditional healers objects in writing to the Minister and the Minister is satisfied of the reasons advanced for the objection.

(7) The Minister shall, whenever necessary, establish a joint research on traditional medicines between the traditional healers or their representative body and the Ministry or such other person or institution concerned with public health.

(8) Regulations made under this section may prescribe offences and penalties and fees or anything the Minister thinks fit for the purposes of public health.

(9) Any person who contravenes subsection (5) or any regulations made under this section commits an offence.

Appropriate facilities for the disabled persons

183. (1) At every workplace, including a public place, factory, trade premises, school, office, place of entertainment, hotel, parking bay, bus stop, sanitary facility or such other place frequented by the public shall be provided with appropriate facilities for the disabled persons by the person or persons responsible for such places or things.

(2) Where there is doubt or denial of responsibility for purposes of subsection (1) the Minister may determine which person shall be the responsible person.

(3) The Minister may make regulations, published in the Gazette, in respect of disabled persons in connection with their welfare and public health.

(4) The regulations made under this section may prescribe offences and penalties.

Regulations in respect of disasters

184. (1) The Minister shall, on the occurrence of a national disaster of whatever nature impacting on public health, take appropriate action to mitigate the adverse effects of that disaster on public health in consultation with existing national disaster structures.

(2) Without prejudice to subsection (1) the Minister, alone or in conjunction with other persons or bodies, may make orders or regulations published in the Gazette in respect of national disasters impacting on public health.

(3) For purposes of this section the Minister may establish committees or commissions on such terms and conditions as the Minister thinks just and in consultation with the Minister responsible for Finance the Minister may, for the purpose of this section, establish a Special Fund.

Regulations

185. (1) The Minister may, for the purposes of this Act, make regulations to give effect to the purposes and such regulations may prescribe offences and penalties, or amend penalties, prescribe fees and do any lawful at which falls under the objectives and purposes of this Act.

(2) Unless the Parliament provides otherwise, the Minister may, without prejudice to subsection (1) make orders or regulations respecting euthanasia, abortion and the compelling of family members to subjection to medical tests or examination for the purposes of tracing the history or origins of a disease infection or ailment possessed by one of the members of the family.

Penalties where not expressly provided

186. (1) Any person who fails or refuses to comply with or who contravenes a provision of this Act or regulation made under this Act commits an offence, and where a punishment is not expressly provided, shall be liable on conviction to a fine not exceeding fifty thousand Emalangeni, which fine may be amended by the Minister by notice published in the Gazette, or to imprisonment to a period not exceeding five years.

(2) The court hearing a matter under this Act may in its wisdom disregard technicalities which may result in an acquitted and to the prejudice of the intentions or objectives of this Act, being appropriate public health for all and to all.

Transitional provisions

187. (1) The Minister may, where necessary and with the approval of the Cabinet or Parliament and by notice published in the Gazette, bring into force or stall, for a specific time, the coming into force of certain Parts, sections, responsibilities and duties of certain persons or bodies.

(2) Any regulations made under the Public Health Act No. 5 of 1969 shall remain in force until revoked or repealed, provided they are not inconsistent with the purposes of this Act and where they are inconsistent they shall be void to the extent of the inconsistency.

Repeal

188. The Public Health Act, No. 5 of 1969 is repealed.