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Challenge to SA Covid-19 Regulations in Esau et al v Cogta Minister et al: Summary of Argument – By Vuyani Ngalwana SC, Farzanah Karachi, Erin Richards (Advocates of the High Court of South Africa)

On Monday, 15 June 2020, the Western Cape High Court in Cape Town, South Africa, heard argument in a challenge to the South African government’s covid-19 regulations on rationality and constitutional grounds.

This is a summary of the arguments advanced by each of the three legal teams involved. As it is a summary, it obviously does not include every argument advanced on behalf of each party. But we have tried to include every argument that we consider important for each party. The reader may read the actual written submissions at the end of this blog for full written argument.

We make no pronouncement on the possible outcome of the case. That we leave to you, the reader who has a keen interest in these things, to do in your own time for your own benefit without prejudicing the court’s process and the administration of justice in this case.

As we were Counsel representing one of the applicants in the application, it could reasonably be expected that the temptation lurks for us to panel-beat the argument of all parties to fit our desired outcome. We have consciously and studiously resisted that temptation, and so we present the arguments as we have gleaned from the pleadings, the written submissions and oral argument of each team.

Welcome to the virtual courtroom.

The applicants are:

  • Mr Duwayne Esau, a student at the University of Cape Town
  • Mr Neo Nkwane, a civil servant
  • Ms Thami Jackson, a media intern
  • Ms Lindo Khuzwayo, a student at the University of Cape Town
  • Mr Mikhail Manuel, a research assistant and PhD student at the University of Cape Town
  • Mr Riaan Salie, a student at the University of South Africa
  • Mr Scott Roberts, a student at the University of Cape Town
  • Mr Mpiyakhe Dlamini, a data analyst and researcher

The respondents are:

  • Minister of Cooperative Governance and Traditional Affairs (the COGTA Minister)
  • President of South Africa
  • Minister of Trade, Industry and Competition (the Trade Minister)
  • Government of South Africa
  • National Coronavirus Command Council (the NCCC)
  • National Disaster Management Centre (the Centre)

The issues are:

  • Whether the establishment and existence of the NCCC is consistent with the Constitution of the Republic of South Africa, 1996 (the Constitution) and the Disaster Management Act, 2002 (the DMA), and therefore valid (Prayer 2.1 of Notice of Motion). [A “prayer” is the order requested in court papers from a court. A Notice of Motion is the document that contains the orders requested.]
  • Whether the NCCC acts lawfully and in a manner that is consistent with the Constitution when it exercises the powers of the Centre (Prayer 2.2).
  • Whether any decision taken by the NCCC in relation to the DMA is constitutional and valid (Prayer 3).
  • Whether the covid-19 regulations issued by the COGTA Minister on 29 April 2020, in particular those restricting people’s movement (reg 16) and trade (reg 28) are constitutional and valid (Prayer 4).
  • Whether the directions issued by the Trade Minister on 12 May 2020 relating to the sale of clothing, footwear and bedding during alert level 4 restrictions should be set aside as being unconstitutional and invalid (Prayer 7).

In the event of the court finding that the covid-19 regulations are unconstitutional, the applicants ask that the declaration of unconstitutionality be suspended for 30 days (Prayer 5) to enable the COGTA Minister to correct the constitutional defects identified within those 30 days (Prayer 6).

There is no such suspension sought in relation to the Trade Minister’s directions in Prayer 7.

The parties agree that the application is urgent (Prayer 1).

The Judges are:

  • Judge Elizabeth Baartman
  • Judge Rosheni Allie

The Legal Teams are:

  • For Esau, Nkwane, Jackson, Khuzwayo, Manuel, Sallie and Roberts: Anton Katz SC; Kessler Perumalsamy; Ashley Pillay (pupil advocate). The Esau team argued in support of prayers 4, 5, 6 and 7 of the notice of motion and also aligned themselves with the argument in support of prayers 2 & 3.
  • For Mpiyakhe Dlamini: Vuyani Ngalwana SC; Farzanah Karachi; Erin Richards. The Dlamini team argued in favour of prayers 2 & 3 only.
  • For government: Marumo Moerane SC; Ngwako Maenetje SC; Nyoko Muvangua; David Watson. The government team opposed all arguments.

Summary of The Esau Team Argument

  • The application is not an attack on the choices the executive has made in order to deal with the covid-19 pandemic; it is an attack on how those choices have been made.
  • As regards the mootness point – that determination of the question on the provenance or lawfulness of the NCCC, the legality of its powers and exercise thereof, on the one hand, and determination of the rationality and constitutionality of the impugned regulations and trade directions, on the other, will have no practical effect – the Esau team says this is factually incorrect because the directions issued in terms of the alert levels 4 & 5 regulations have not been repealed by the 28 May 2020 alert level 3 regulations. For this proposition they point to regulation 2 of the 29 April 2020 regulations which lists regulations that are repealed and expressly state [in reg 2(3)] that the directions issued in terms of the repealed regulations remain in force until amended, varied or withdrawn by the minister concerned.
  • In any event, a court cannot avoid dealing frontally with questions of legality and constitutionality. For this proposition reference is made to 3 judgments: Jordaan [2017] ZACC 31; 2017 (6) SA 287 (CC); 2017 (11) BCLR 1370 (CC), para 8; Mohamed 2001 (3) SA 893 (CC), para 70; Pheko 2012 (2) SA 598 (CC), para 32.
  • Furthermore, a court has a discretion to deal even with issues that are moot: Pillay 2008 (1) SA 474 (CC), para 32.
  • The national state of disaster has been extended to 15 July 2020. The applications raise important constitutional questions of great practical importance not just for the applicants but for all South Africans too.
  • As regards constitutionality and validity of the covid-19 regulations, the COGTA Minister adopted a broad approach in tailoring the regulations. This runs against the general principle that laws that interfere with basic fundamental rights must be construed narrowly: Dadoo 1920 AD 530 at 552; Pheko 2012 (2) SA 598 (CC), para 37.
  • Section 26(2)(b) of the DMA confers on the national executive the power to deal with the national disaster in terms of existing legislation “as augmented by” regulations and directions issued in terms of s 27(2) of the DMA. It does not give her the power to amend existing legislation. That is the function of Parliament. Yet the COGTA Minister has purported to amend existing legislation.
  • By way of example, s 18(2) of the Children’s Act 38 of 2005 recognises that every parent has a right to care for his or her child and to maintain contact with his or her child. However, regulation 17(2) of these covid-19 regulations provides that a parent who has not been granted a permit by a Magistrate may not exercise these rights.
  • Another example: the Prevention of Illegal Evictions and Unlawful Occupation of Land Act 19 of 1998 governs evictions in South Africa, in giving effect to section 26(3) of the Constitution. However, regulation 19 of these covid-19 regulations has the effect of partially suspending the operation of this Act as well as the Extension of Security of Tenure Act, 62 of 1997.
  • But even if the court were to find that the COGTA Minister “augmented” these pieces of legislation by “amending” them, she still fails the necessity test in s 27(3) of the DMA because many of these regulations are not necessary for, as s 27(3) requires, (1) assisting and protecting the public; (2) providing relief to the public; (3) protecting property; (4) preventing or combatting disruption; or (5) dealing with the destructive and other effects of the disaster.
  • The expert affidavit of Professor Karim says nothing about the necessity of these impugned regulations in line with s 27(3) of the DMA. They thus remain unjustifiable and impermissible, infringe on the principle of legality, are unreasonable and unconstitutional and therefore invalid.
  • The covid-19 regulations are thus beyond the scope (ultra vires) of the DMA and therefore are invalid.
  • As regards rationality, there is both procedural and substantive irrationality.
  • On procedural irrationality, the Esau team says the invasive nature of these regulations into the fundamental rights of South Africans cried out for broad consultation of the people and not just the relevant portfolio Minister to whose portfolio a given restriction to a fundamental right relates. Promulgating regulations is a law-making process. Public participation is required by law even if not in the empowering legislation, because public participation ensures that the regulations are informed and responsive: Doctors For Life 2006 (6) SA 416 (CC), paras 205-208.
  • The COGTA Minister says she invited public comments on Saturday 25 April 2020. These had to be submitted by 12 noon on Monday 27 April 2020. By that day, she says she had received 70,000 written submissions. The regulations were drafted the following day on 28 April 2020 and issued on 29 April 2020. She does not say she considered the Public Participation Report provided to her. There is no humanly possible manner in which she and her team could have considered all those 70,000 submissions in less than 2 days, and properly applied their minds. So, for that reason the entire process of regulation-making was vitiated by procedural irrationality and the result of it must fall: DA v Pres, RSA 2013 (1) SA 248 (CC), para 39; Albutt 2010 (3) SA 293 (CC), para 69.
  • The COGTA Minister says the DMA does not require public consultation before issuing regulations. The Esau team says the Minister is wrong in this regard. In any event the SCA has ruled that even where the empowering Act does not require public participation, the fact that the functionary announces that public participation will take place, but later fails to ensure that it does, means that the functionary’s ultimate decision is for that reason procedurally irrational and unlawful: Scalabrini Centre 2013 (6) SA 421 (SCA), para 72.
  • On substantive irrationality, the Esau team mounts its attack based on reasonableness under PAJA [the Promotion of Administrative Justice Act, 2000] and the legality principle.
  • The Minister says the making of regulations is an executive act not an administrative act and so not susceptible to review under PAJA. The Esau team says the Minister is wrong again. When she issues regulations under s 27(2) of the DMA, she is exercising a public power in terms of national legislation, the DMA. She is not making policy. Therefore, the issuing of regulations is administrative action and susceptible to review under PAJA.
  • In any event, every public power must conform to the principle of legality.
  • Under these covid-19 regulations, going to work requires a permit; walking outside the home may only take place between 06h00 and 09h00; buying new clothes depends on whether it is a permitted clothing item; and buying a roast chicken or hot pie because you are unable to cook because of a disability or your age, is permitted only if it is delivered to your home, but not bought with your groceries. These are limitations to the right to human dignity. As the Constitutional Court said in Barkhuizen 2007 (5) SA 323 (CC), para 57

“Self-autonomy, or the ability to regulate one’s own affairs, even to one’s own detriment, is the very essence of freedom and a vital part of dignity.

  • The regulations are designed around the idea of state control rather than the idea of freedom. So invasive are the movement restrictions that Mr Scott Roberts was treated as a criminal suspect just for travelling from his parents’ house in Durban to Cape Town. These regulations have adversely affected every aspect of Mr Mpiyakhe Dlamini’s life: his emotionality, psychology and physicality. The fact that everything else outside the itemised movements and economic activities, even if unrelated to covid-19, is not permitted makes these regulations arbitrary. This form of regulation is diametrically opposed to personal autonomy, freedom and human dignity.
  • The infringement of human dignity is pervasive because the impugned restrictions have rendered ordinary and harmless (even during the pandemic) conduct a criminal act. For example, (1) a grocer who sells raw chicken breasts does not commit a crime but a grocer who sells roast chicken commits a crime; (2) a retailer who sells summer shorts for adults commits a crime; (3) a person who surfs or hikes rather than walking or cycling as a recreational activity commits a crime; (4) a parent who takes his or her child for a lunchtime walk commits a crime; (5) an individual who leaves their house to visit a relative that is ailing but not yet dead commits a crime.
  • The Constitutional Court has recognised, in Nandutu 2019 (5) SA 325 (CC), para 1, that

the right to family life is not a coincidental consequence of human dignity, but rather a core ingredient of it.”

  • In many instances these regulations seek to regulate professions despite the fact that specific legislation is enacted for that purpose. For example, the Legal Practice Act recognises the right of legal practitioners to practise law: s 24 & s 25 of the LPA. However, these covid-19 regulations do not entitle all legal practitioners to practise law; only those who perform “services related to the essential functioning of the Courts” may practise their profession. So, regulation 28 is unconstitutional because it suspends the operation of law enacted by Parliament in a manner that infringes upon the separation of powers. It also regulates the legal profession in a manner that is not permitted by the LPA by requiring a permit to perform services related to the essential function of the courts.
  • All the parties to this litigation accept that combating the covid-19 pandemic is an important governmental objective. However, the government respondents have not demonstrated by way of any evidence that the impugned restrictions bear any rational relationship to controlling these risks.
  • It is accepted by everyone in this litigation that the risk of spreading the virus lies not in people’s movements or retail activity; it lies in what people do while moving or shopping. What people do can be regulated by compulsory requirement that people wear face masks in public spaces, social distancing, hand sanitising and general covid-19 hygiene protocols.
  • Thus, the risks about which the government respondents are concerned cannot be averted by regulation 16 (movement restrictions) and regulation 28 (trade restrictions). These restrictions are entirely disproportionate to the mischief sought to be addressed.
  • South African courts have declared executive-created offences or penal provisions to be unlawful. That is the role of Parliament: Rex v Magano and Madumo 1924 TPD at 97; Rex v De Beer 1930 TPD 329 at 332.
  • The Trade Minister says he issued his trade directions in terms of regulation 4(10)(a). But that regulation deals with the dissemination of information in order to deal with the disaster, not to limit what clothes and what food people may buy.
  • The trade restrictions are also beyond the scope of the DMA as they are unnecessary as envisaged in s 27(3). A functionary cannot make regulations that are not aligned with the empowering legislation: Affordable Medicines 2006 (3) SA 247 (CC), para 119; Rustenburg Platinum Mines v CCMA 2007 (1) SA 576 (SCA), para 34.

Summary of the Dlamini Team Argument

  • Mr Dlamini is not challenging government policy or lockdown. His complaint is that he, as all South Africans, is expected to make huge sacrifices in relation to his fundamental rights (such as human dignity and movement) without being told exactly who is making the decisions that so adversely impact on these fundamental rights and on the basis of what law. For that he wants to hold government accountable. But he is constrained by absence of transparency and accountability on government’s part, which are two of the fundamental values and principles of public administration under the Constitution (s 195).
  • Fundamental rights is the place where Law and Politics collide. This being a Court of Law, the Law must prevail over Politics.
  • A long line of case, beginning with Fedsure Life 1999 (4) SA 374 (CC), tells us that it is a fundamental principle of our constitutional order that those who exercise public power and perform public functions may do so only to the extent that such power or function is conferred on them by law.
  • Mr Dlamini’s case hinges on answers to 3 questions: (1) was the NCCC lawfully established? (2) does the NCCC have decision-making powers in law? (3) has the NCCC made any decisions, including policy decisions?
  • As regards the establishment question, the government has pointed to no law that confers on the President or Cabinet the power to establish the NCCC.
  • In para 15 of their written argument, Counsel for the government concede that there is no legislative or constitutional provision that empowers Cabinet or President to establish the NCCC or any committee.
  • Then they point to s 85 of the Constitution as a salutary provision affording a wide berth on the executive to coordinate its functions as it sees fit, including forming itself into committees. The Dlamini team says s 85 does nothing of the sort. At best, s 85 confers a power on the executive to coordinate functions of state departments and administrations. It confers no power on a committee to do such coordination. For the NCCC to perform executive functions you need a delegation of executive power in terms of s 238 of the Constitution. But the President has told Parliament that there has been no such delegation of power to the NCCC. That’s really the end of that.
  • Counsel for the government say it is normal for Cabinet to establish committees. Yes, says the Dlamini team, but where is the law that confers on it the power to do that? Section 26(1) of the DMA, to which the government team now points belatedly, says nothing different from what s 85 of the Constitution says. It confers a power on the national executive to coordinate national disasters. It does not give the executive the power to form an amorphous outfit to usurp the powers of an existing Centre during an emergency or disaster.
  • The Dlamini team pointed to a number of examples where it says the NCCC has usurped the powers of the Centre. One such example was s 20(1)(a)(i) of the DMA which confers on the Centre the power of “determining levels of risk” in a disaster; yet on 20 April 2020 the COGTA Minister told Cabinet that the NCCC “determines level of alert for each province and district” which “can be imposed by the [NCCC] as necessary, and the President told the nation on 23 April 2020 that the NCCC “determined that the national coronavirus alert level will be lowered from level 5 to level 4 with effect from Friday the 1st of May”. The Dlamini team commended sections 15 to 23 of the DMA to the court for other examples.
  • As regards the decision-making powers question, the COGTA Minister has given no less than 6 conflicting versions, ranging from: the NCCC has no decision-making powers whatsoever, to: the NCCC takes “what could be termed critical decisions” to: the NCCC takes decisions only when it sits as Cabinet.
  • Then, says the Dlamini team, in their written submissions Counsel for the government add 4 more versions, including that the NCCC makes policy decisions, and that the NCCC’s functions, actions and decisions are, in fact, Cabinet functions, actions and decisions.
  • The Dlamini team argued that the NCCC has no decision-making powers in law in relation to a national disaster. Not in the DMA; not in the Constitution. And the government has pointed to no legislation that confers such decision-making powers on the NCCC.
  • As regards whether the NCCC has made any decisions, including policy decisions, the Dlamini team argued that the COGTA Minister and the President have given contradictory versions. But then their Counsel end the debate by making this submission in their written submissions:

“on some occasions, [the NCCC] is taking decisions relating to COVID-19, and on other occasions those are being escalated to formal Cabinet meetings. In either event, such decisions are decisions of Cabinet, and are constitutionally compliant”.

  • In other words, says the Dlamni team, the NCCC decisions are Cabinet decisions and are therefore constitutionally compliant, according to Counsel for the government.
  • But since there is, on Counsel’s own argument, no constitutional or legislative provision conferring a power on the NCCC to make decisions relating to covid-19, these decisions are unlawful and must be set aside.
  • As regards the mootness point – that determination of the question on the provenance of the NCCC and the legality of its powers and exercise thereof will have no practical effect – Mr Dlamini says that this point is bad in its articulation, in fact and in law.
  • The COGTA Minister is herself uncertain of the point when she says the applicants’ complaints

“would appear to have been addressed in toto by the [28 May 2020] regulations”

This does not inspire confidence in the point.

  • In any event, the 28 May 2020 covid-19 regulations do not address Mr Dlamini’s complaint about the provenance or lawfulness of the NCCC and its continued making of binding decisions, including policy decisions, that it has no power in law to make. That is the factual flaw of the point.
  • The legal flaw in the point is that mootness is not necessarily a bar to a court considering a dispute if that is in the interests of justice to do. The Constitutional Court said so in Shuttleworth 2015 (5) SA 146 (CC); 2015 (8) BCLR 959; [2015] ZACC 17, para 27, and the High Court has just said so in NSPCA 2020 (1) SA 249 (GP), paras 36 to 42.
  • What is more, the government seems to blow hot and cold on whether or not alert level 4 restrictions may return. In paragraph 6 of Counsel’s written submissions they leave that door open; in paragraph 133 they say even if alert level 4 were to return, the trade directions “would not resurrect”. What is certain, though, is that there is no guarantee that alert level 4 may not return – with its restrictions. In these circumstances it cannot be said that the application is moot, or that it is not in the interests of justice to determine it.
  • As regards appropriate remedy, the Dlamini team says Counsel for the government make this submission in paragraph 31 of their written submissions after complaining that the relief sought is “overbroad” and must be dismissed:

“It is customarily appropriate when it is held that an office is being unlawfully occupied to declare the appointment of that person invalid, but to leave intact decisions made by that person, and that such an order falls within the Court’s remedial powers to declare conduct invalid but to grant a just and equitable order including refusing to recognise any further consequences arising from the invalidity.”

  • Mr Dlamini’s case has never been that the NCCC is “unlawfully occupied” or comprises people who should not be there. He says its establishment has no legislative or constitutional provenance, and its decisions have no legislative or constitutional underpinning. But, as regards the relief proposed by Counsel for the government that, upon finding that the NCCC is unlawful and acts without legal sanction, this court should refuse to recognise any further consequences arising from its invalidity, Mr Dlamini agrees.

Summary of the Government Team Argument

  • As regards attacks on the regulations under PAJA, the government team says the application is an attack on government policy. The courts cannot interfere with government policy under PAJA.
  • The promulgation of regulations in terms of s 27(2) of the DMA is more closely related to the formulation of policy rather than the implementation of legislation. This is so because s 26(1) of the DMA makes the response to disasters an executive function. So, the issuing of regulations aims to combat the disaster which concerns polycentric matters of high policy. It thus resides in the heartland of national executive function: ITAC v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC), para 101. For that reason, the issuing of regulations cannot be attacked under PAJA.
  • As regards the mootness point (that determination of the application will have no practical effect), Counsel for government argue that the issues in relation to the Clothing Directions are moot because alert level 4 has ceased and, together with it, the Clothing Directions.
  • As regards the provenance or lawfulness of the NCCC, the NCCC is a constitutionally permissible structure because s 85 of the Constitution confers a wide power on the President and Cabinet to coordinate executive functions as they see fit. Mr Dlamini’s search for some further statutory or constitutional provision empowering Cabinet to establish the NCCC is misguided. Cabinet’s power to regulate its own affairs is inherent in it being vested by s 85 of the Constitution with the executive authority of the Republic. The Constitution does not address the minutiae of how Cabinet must organise itself. This lack of specific provisions regulating and constraining the President in the organising of Cabinet internal affairs is intentional.
  • Cabinet’s deliberative and decision-making procedures are inherently political choices which will vary between governments, and when circumstances change: Murray and Stacey “The President and the National Executive” Constitutional Law of South Africa” OS 06-08, chapter 18 page 36.
  • The use of committees is generally recognised as a welcome and necessary feature for cabinets. The NCCC is a Cabinet structure comprising all Cabinet members. It is in fact a Cabinet committee. In fact, the NCCC is Cabinet by another name.
  • The interchangeable language used by the national executive between “the NCCC” and “Cabinet” is to be expected because sometimes Cabinet is acting when sitting formally as Cabinet, and sometimes it is acting through the NCCC.
  • This interchangeable language is constitutionally innocuous. The NCCC is a committee of Cabinet, comprising only ministers. The actions and functions of the NCCC are the actions and functions of Cabinet. Nothing prevents Cabinet from making decisions at the NCCC level, or elevating decisions of the NCCC to a formal Cabinet meeting, or for that matter making the decision at a meeting of the NCCC and then confirming that decision in a formal Cabinet meeting.
  • The drafters of the Constitution would have been aware that Cabinet would be likely to employ committees and, given the functioning of the modern state, would rely on committees extensively to function effectively and responsibly. If the Constitution was intended to limit the President and Cabinet’s powers to exercise their executive authority by prohibiting them from establishing and using committees, it would have stated as much expressly.
  • As regards whether the NCCC has decision-making powers in law, the NCCC has no decision-making powers reserved by statute for other Ministers and other organs of state.
  • The NCCC acts as a forum for discussion and debate on covid-19 issues.
  • It does on occasion make what could be termed “critical decisions” and there is nothing inappropriate with this provided such decisions are subsequently taken by Cabinet sitting as Cabinet.
  • The NCCC has the power to decide on lockdown alert levels, but this would require Cabinet approval.
  • The NCCC is a coordinating body given authority by Cabinet to do that. But, as a Cabinet committee, the NCCC is empowered, like Cabinet itself, to take binding decisions, including policy decisions, on behalf of government.
  • The NCCC is no more than a committee of Cabinet. On some occasions, it is taking decisions relating to covid-19, and on other occasions those are being escalated to formal Cabinet meetings. In either event, such decisions are decisions of Cabinet, and are constitutionally compliant.
  • As regards whether the NCCC has in fact made decisions, including policy decisions, Cabinet took the decision to enter a strict lockdown phase, not the NCCC.
  • The NCCC decided to enforce a nation-wide lockdown for 21 days with effect from midnight on Thursday 26 March 2020.
  • The NCCC met again on 23 April 2020 and determined that the national coronavirus alert level would be lowered from level 5 to level 4 with effect from Friday the 1st of May.
  • The suggestion by the COGTA Minister and the President that the NCCC determined alert levels and enforced lockdown was simply imprecise language.
  • As regards constitutional validity of the covid-19 regulations, Counsel for government argued that some of the arguments raised in the Esau team’s written submissions relate to new attacks belatedly advanced and were not crisply pleaded in the founding papers. This has deprived government of the opportunity fully to address the arguments raised. In any event, should the Court hold that it may and should consider the issue, the applicants are reading into s 27 of the DMA substantial jurisdictional considerations that do not exist. Further, there is no inconsistency between the pieces of legislation identified by the applicants [the LPA, the Children’s Act, the Prevention of Illegal Evictions and Unlawful Occupation of Land Act 19 of 1998, the Extension of Tenue Act] on the one hand, and the regulations, on the other, and the COGTA Minister was empowered to create offences as the DMA provides expressly in s 27(4) that regulations made under s 27(2) may include regulations prescribing penalties for any contravention of the regulations.
  • Government also argued that the regulations comply with the Constitution and that the regulations’ purpose of preventing the unmanageable spread of covid-19 is not only constitutionally permitted but constitutionally mandated. The limitations analysis under s 36 of the Constitution must be informed by the fact that any response to the pandemic may require choosing between a number of different and unpalatable options. To implement a rapid reduction of the transmission rate, a lockdown was required in addition to other behavioural tools provided for in the DMA. The right to life and the right to dignity, and the government’s concomitant responsibility to save lives justifies the limitation on other rights. For this proposition reliance was placed principally on Makwanyane 1995 (3) SA 391 (CC), para 144.
  • As regards the necessity of the covid-19 regulations, the lockdown was, and remains, necessary and the regulations were, and continue to be, necessary in order to give effect to the scientific advice that was received.
  • As regards procedural irrationality and the necessity for consultation, the regulations were published following a procedurally rational process, and the only consultation required when regulations are promulgated under s 27(2) is consultation with the “responsible Cabinet Minister”. Public consultation is not required by the DMA at all. This is in contrast to other exercises of powers in the Act. Reliance was placed on DA v Pres, RSA 2013 (1) SA 248 (CC); Albutt 2010 (3) SA 293 (CC); Kyalami Ridge [2001] ZACC 19 (29 May 2001).
  • As regards arbitrariness, Government argues that distinctions between activities are not irrational. To reduce the risk of transmission, the total number of opportunities for transmission must be reduced. This requires an unavoidable decision between allowing some activities that pose a risk of transmission but not others.
  • Regarding the appropriate relief in respect of the NCCC attack, Counsel for the government say the challenge has no merit and must be dismissed. In the alternative, they say:

“If the Court is against the [government], it is respectfully submitted that the relief in the notice of motion is overly broad. It is customarily appropriate when it is held that an office is being unlawfully occupied to declare the appointment of that person invalid, but to leave intact decisions made by that person, and that such an order falls within the Court’s remedial powers to declare conduct invalid but to grant a just and equitable order including refusing to recognise any further consequences arising from the invalidity.

A similar approach should be adopted here. Decisions that have been taken by Cabinet sitting as the NCCC can then be set aside on a case-by-case basis and with regard to the merits of each decision.”

As regards appropriate relief in respect of the challenge to the regulations, the government asks the court to dismiss the challenge. In the alternative they say:

“If the Court is against the [government], and declares any of the impugned regulations invalid, it should suspend the declaration of invalidity to permit an opportunity for the Minister to rectify any deficiencies identified. It is respectfully submitted that a 30-day period is an appropriate period of time for which to suspend any declaration of invalidity.”

All the pleadings and written argument can be accessed below under “Related Documents”.

Related Documents:

You may access the full application here:

Dlamini supplementary submissions – 12 June 2020

Mpiyakhe Dlamini Principal Submissions – 10 June 2020

Cogta Heads of argument Final

1 – 7 Applicants Heads of Argument

Index

Answering Affidavit of Min Ebrahim Patel – pp 812 – 880

Founding Affidavit:

Respondents Answering Affidavit:

Applicants Replying Affidavit:

By |2020-06-20T10:40:56+02:00Jun 19th, 2020|Blog, General, News|1 Comment

Covid-19 Regulations Declared Unconstitutional: Wake Up Call for South Africans?

The High Court in South Africa has declared the South African government’s covid-19 regulations unconstitutional and invalid.

Here I summarise the court’s findings and reasons.

But first, my own view on government’s approach.

Opening Remarks

The much vaunted justification for the South African government locking down the entire country for an indeterminate period, severely affecting an already very weak economy and thus people’s livelihoods in the process, is the ultimate right that it has claimed for itself to “save lives”. In that spirit, nothing else matters.

Curiously, many South Africans, either driven by fear or apathy, seem willing to trade in their constitutional rights so that government can play its role of “saving lives” to the exclusion (destruction even) of everything else. It is their choice and their right to do so. But what of the many other South Africans who do not appreciate government playing “Saviour” with their lives and just want to get on with it without causing harm to others?

This zero-sum government approach – where the goal is “saving lives” and nothing else – is riddled with plain nonsensical, irrational decisions and actions, for which I am unable to find any justification – scientific or otherwise – in a constitutional democracy.

Retired Judge of the UK Supreme Court (the highest court in the UK), Lord Jonathan Sumption, points to 3 obvious examples that demonstrate the emptiness (blatant lie even) of the incantation that “life is priceless” [See https://www.aier.org/article/lord-sumption-the-lockdown-is-without-doubt-the-greatest-interference-with-personal-liberty-in-our-history/]

  • The first is that the world went to war in 1939 because lives were worth losing for liberty.
  • The second is that we allow cars on the roads because lives are worth losing for convenience.
  • The third is that we travel by air although we know that pollution kills.

These examples seem to show that while life is precious, it is not altogether priceless. It has been “traded in” for liberty and convenience and we continue to do so.

Elsewhere, the state even kills people in the morbid belief that this is justice.

And, dare I say, that hundreds if not thousands of patriotic South Africans have given their lives in the liberation struggle so that the current generation of South Africans can enjoy the very fundamental rights that some South Africans are now surrendering to the government seemingly without applying their minds to the ultimate sacrifice made by the liberation heroes of yesteryear. The irony seems lost that this is largely a government that is the product of the ultimate sacrifices made in that very liberation struggle.

To say it is shameful would be a gross understatement.

Back to the judgment.

This judgment exposes the South African government as having adopted a

“paternalistic approach rather than a Constitutionally justifiable approach”

The court goes further and describes the government’s chilling approach in these stark terms:

“The [government’s] starting point was not ‘how can we as government limit Constitutional rights in the least possible fashion whilst still protecting the inhabitants of South Africa?’ but rather ‘we will seek to achieve our goal by whatever means, irrespective of the cost, and we will determine, albeit incrementally, which Constitutional rights you as the people of South Africa, may exercise’.”  

There lies the rub.

This is demonstrated in no small measure by submissions made to court on behalf of the Minister of Cooperative Governance and Traditional Affairs (COGTA), and by the Director-General in the COGTA department. These include an extraordinary submission by the Director-General that

“the South African population has to make a sacrifice between the crippling of the economy and the loss of lives”

and

“[the regulations] cannot, therefore, be set aside on the basis that they are causing economic hardship, as saving lives should take precedence over freedom of movement and to earn a living”

The high court rightly rejected this submission not only as a callous Hobson’s choice that South Africans are needlessly forced by government to make between “plague and famine”, but also as demonstrative of the absence of any regard for the rationality of the measures that government has chosen.

In this regard, the court had to remind government in the judgment that s 27(3) of the Disaster Management Act, 2002 (the DMA) says the aim of the regulations includes

“assisting the public, providing relief to the public … and … dealing with the destructive effects of the disaster”

There is no room whatsoever in that aim for the callous choice that government expects South Africans to make, choosing either plague or famine.

As if the callous Hobson’s choice decreed by government for the people of South Africa were not enough, the Director-General laid bare the COGTA department’s (or government’s) understanding of the constitutional standard. She said:

“The powers exercised under lockdown regulations are for public good. Therefore the [constitutional] standard is not breached”

and

“the means justify the ends”

So, according to the COGTA department and government, good intentions are, for that reason alone, constitutionally valid. The fact that constitutional rights happen to be trampled on along the way is not something to quibble about.

This is an extraordinary submission for a government to make in a constitutional democracy.

It is an indictment of the worst order on the government of South Africa that a court of law has now described the intervention of what should be a democratically elected government that has sworn an oath or affirmation to the Constitution as

“[t]he reversion to a blanket ban [that] harks back to a pre-Constitutional era and to restrictive State of emergency regulations”

If nothing else, this should make government seriously reflect on its chosen path.

But what did the court find to be unconstitutional?

The Relief Granted

The high court declared the following regulations unconstitutional and therefore invalid. These are both the regulations issued in relation to Alert Level 4 (the 29 April 2020 regulations) and those issued in relation to Alert Level 3 (the 28 May 2020 regulations) as made clear in paragraphs 9.2 of the judgment:

  • Regulation 35: attendance at funerals
  • Regulation 48(2): criminalising contravention of funeral regulations
  • Table 2, item 7: exclusion of hairdressers, etc
  • Regulation 33(1)(e): restricting exercise to between 06h00 & 18h00
  • Regulation 39(2)(m): closure of parks & beaches [the court erroneously cites reg 39(2)(e) for parks]
  • Regulation 39(2)(m): closure of beaches

It is important to note that the court does not declare all regulations to be unconstitutional and invalid. It specifically excludes some regulations which it describes as “rationally connected to the stated purpose”.

The court suspended the declaration of invalidity for a period of 14 business days (or such longer period as the court may on good cause shown allow) to enable the COGTA Minister to review, amend and republish the identified regulations.

The COGTA Minister was ordered to pay the applicants’ costs.

What reasons did the court give for declaring these regulations unconstitutional and invalid?

Grounds for unconstitutionality

The main thrust of the judgment seems to be rationality. The Learned Judge then arrives at constitutional invalidity through that route. In this regard, the court says

“Insofar as the ‘lockdown regulations’ do not satisfy the ‘rationality test’, their encroachment on and limitation of rights guaranteed in the Bill of Rights contained in the Constitution are not justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated in Section 36 of the Constitution.”

Rationality, as the court says, entails – in one iteration – an inquiry into whether the measure is rationally related to the achievement of the purpose for which the measure is invoked. If it is, the measure is rational; if not, the measure is irrational.

But that is a rationality test, not a constitutionality test. This short-hand approach to constitutional analysis by the court is somewhat unusual. Usually the approach is to first ask whether the impugned conduct or law infringes or limits a right in the Bill of Rights. If it does not, that is the end of the inquiry and the conduct or law is not unconstitutional. But if it does limit a right in the Bill of Rights, then the next question is whether such limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. This latter analysis is usually engaged by reference to whether there exist other less invasive or restrictive measures to achieve the intended purpose.

On the usual approach, not all conduct or law that is irrational can automatically be declared unconstitutional or invalid. It all depends on numerous factors, including the facts, the nature of the right, the extent of the limitation, the purpose of the limitation and its importance, and whether that purpose can be achieved by less restrictive measures or measures that pose a lesser threat to entrenched constitutional rights.

It is for that reason that the court’s leap from a finding of irrationality to a finding of constitutional invalidity may be open to challenge. Whether or not the challenge (if launched) would be successful – considering that the question in constitutional appeals is often less about whether the lower court was right or wrong and more about what the just and equitable remedy is – remains to be seen.

On the whole, however, I think the regulations identified by the court (and others besides) are patently unconstitutional not least because there are less invasive measures that government could have adopted for the stated purpose of “flattening the curve” of covid-19 infections. Some of these are laid bare in the judgment itself. And this is not, in my view, an example of a court trenching on government policy-making terrain.

So, what reasons did the court give for finding regulations unconstitutional and invalid?

As regards regulation 35 on funerals, the court said:

  • It is not only distressing but also irrational that a person, young or old, who is terminally ill (not from covid-19) is not permitted family visits in the final moments of life that would ease suffering, but is permitted family visits at his or her funeral by up to 50 family members armed with certified copies of a death certificate, even travelling across provincial borders, when s/he no longer needs their support.
  • If one wants to prevent the spreading of the virus through close proximity, why ban night vigils totally instead of introducing time, distance and closed casket restrictions, or even a night vigil without the body of the deceased?
  • If long-distance travel is permitted, albeit under strict limitations, a night vigil by a limited number of grieving family members under similar limitations can hardly pose a greater threat.
  • Why criminalise grief? [reg 48(2)]
  • There is no rational connection to the stated objectives for the limitation on the degree of familial relationship to a deceased in order permissibly to attend his or her funeral. For instance, what if the deceased is a clan leader, a leader of the community or a traditional head of a small village?

As regards regulation 33(1)(e) on restricting exercise to between 06h00 & 18h00, the court said:

  • This is as perplexing as the funerals regulations
  • If the laudable objective is to prevent people from exercising in large groups in close proximity to each other, why not say so in the regulations instead of prohibiting the organising of exercise by arbitrarily imposed time limits?

As regards regulation 39(2)(m) on the closure of beaches and public parks, the court said

  • It can hardly be rational to allow scores of people to run on the promenade during prescribed times of the day, but to take the view that if one were to step one foot into the beach that would lead to rampant infection.
  • A gogo who cares for 4 young children in a one-room informal dwelling during the whole lockdown period is still not permitted to take them to the park even if they all wear masks and avoid contact with other people altogether, but is expected to confine five people in a small indoor space.

As regards Table 2, item 7 on exclusion of hairdressers, etc, the court said:

  • A single hairdresser mother and sole provider for her family must now watch her children starve while witnessing minicab taxis passing by with passengers sitting in closer proximity to each other than they would have in her salon.
  • She is stripped of her right to dignity, equality, to earn a living and to provide the best for her children.

As regards other regulations that the court has not mentioned, the following is said:

“I am certain, from what I have seen in the papers filed in this matter and from a mere reading of the regulations, even including the Alert Level 3 regulations, that there are many more instances of sheer irrationality included therein. If one has regard to some of the public platforms to which I have been referred, the examples are too numerous to mention. One need only think of the irrationality in being allowed to buy a jersey but not undergarments or open-toed shoes and the criminalisation of many of the regulatory measures.”   

Closing Remarks

If the court is correct that government has chosen an approach that is more “paternalistic rather than constitutionally justifiable” in devising these regulations, and that government’s constitutional standard is as articulated by the Director-General as being, among other things, that “the means justify the ends”, then perhaps a more effective remedy may have been to declare the entire suite of regulations and directives unconstitutional and invalid, suspending the declaration of invalidity for a period to enable the correction of all the defects by adoption of a constitutionally-centred approach than a paternalistic approach.

Now there is a danger of a piece-meal tweaking of some regulations, while leaving others wreaking havoc just by accident of not having been specifically identified in a court order as requiring attention.

Perhaps this is a function of the pleadings in the case, as a court may not ordinarily grant relief that a party has not sought. Perhaps a challenge may yet come attacking all the problematic regulations and directives in one application or set of applications heard together, so that a court can decide the constitutional validity of each of these regulations and directives. We almost need something akin to the process that was followed in the certification of the Constitution, otherwise there will be a proliferation of disparate applications in different courts of varying expertise, appetite and philosophical leaning. That is a recipe for conflicting judgments at various times which is not good for the rule of law which requires certainty in order to function properly.

Because this is a judgment of the Urgent Court, there are typographical errors, erroneous references and some reasoning that is not taken to their logical conclusion. For example,

  • the court refers to “regulation 39(2)(e)” in relation to closure of beaches and parks when it means regulation 39(2)(m)
  • the court refers to “regulation 33(a)(e)” in relation to the restriction of exercise when it means regulation 33(1)(e)
  • the court cites the Constitutional decision in “Allbert v Centre for the Study of Violence and Reconciliation” when it means “Albutt”
  • the court does not identify the specific constitutional right that it says is being unjustifiably infringed by each regulation that it has declared to be invalid. Dignity (s 10), equality (s 9), the right to earn a living (s 22) and provide the best for her children (s 28) are mentioned in relation to the single hairdresser mother in respect of Table 2 item 7 of the regulations. Nowhere else, as far I could gather, is a connection made between the impugned regulation, on the one hand, and the constitutional right it is said to infringe unjustifiably, on the other. But, at least in my view, it is clear from the text of the judgment, in respect of each impugned regulation, which section of the Constitution is engaged even if not specifically mentioned. It is then up to the appeal court to decide whether that is enough – if the judgment is challenged.

But mistakes of this kind are not unusual in Urgent Court judgments. The case was argued on Thursday 28 May 2020 and judgment rendered the following Tuesday 2 June 2020. So it appears to have been written over the weekend. A Judge in Urgent Court (and this I know from experience, having acted in Urgent Court myself on numerous occasions) usually has many other cases to decide in the week that s/he is assigned to Urgent Court.

Whatever its fate, it is my sincere hope that this judgement of the Urgent Court will wake South Africans up and that more will start to think deeply about the trade-offs and the long-term effects of the decisions made by government. We are between a rock and a hard place, and often we have to decide which is the lesser of two evils. But, when we outsource all of our thinking to government, we make ourselves vulnerable to a future we may not like.

Related Documents:

HC JUDGMENT in De Beer v Minister of COTGA – 2 June 2020

By |2020-06-08T10:10:36+02:00Jun 3rd, 2020|Blog, General, News|3 Comments

David v Goliath as Students Challenge Government Over Covid-19 Regulations: A Summary

On Wednesday 20 May 2020, five University of Cape Town students together with a data analyst, a media intern and a civil servant filed papers in the Western Cape High Court challenging numerous aspects of the South African government’s interventions in relation to the covid-19.

This is a summary of that application. I express no view on its merits.

The students want the Cape High Court to hear their application on Friday 29 May 2020. They have given the respondents until Monday 25 May 2020 to file their opposing papers.

The application is brought against

  • The President of South Africa, both in his capacity as President and as Chair of the National Coronavirus Command Council (the Command Council)
  • Minister of Cooperative Governance and Traditional Affairs (COGTA) both in her capacity as COGTA Minister and as Co-Chair of the Command Council
  • Minister of Trade, Industry and Competition
  • Government of South Africa
  • Command Council
  • National Disaster Management Centre

The Relief Sought

In a nutshell, the students want the Cape High Court to declare

  • that the establishment and existence of the Command Council is unconstitutional and invalid
  • that even if it were constitutional and valid, its actions are unlawful and unconstitutional
  • that any decision taken by the Command Council in relation to any matter in terms of the Disaster Management Act, 2002 (the DMA) is unconstitutional and invalid
  • that the Regulations issued by the COGTA Minister on 29 April 2020 are in their entirety unconstitutional and invalid
  • that, if the court should find that not all these regulations are invalid and unconstitutional, then the curfew and movement regulations [regulations 16(1) to 16(4)] and the economic restrictions regulations [regulations 28(1), 28(3) & 28(4)] are unconstitutional and invalid
  • that the directions issued by the Minister of Trade, Industry and Competition on 12 May 2020 in relation to the sale of clothing, footwear and bedding are unconstitutional and invalid and are set aside
  • that the President is given 30 days from the date of the court order to correct the constitutional defects in the 29 April 2020 Regulations
  • that the declaration of unconstitutionality is suspended for 30 days to enable the President to correct the defects identified within those 30 days

They want only those respondents who oppose the application to be ordered to pay the costs of the application.

Grounds for the Relief Sought (at a Glance)

The students say the establishment and existence of the Command Council is unconstitutional and unlawful because the Command Council purports to step into the shoes of, and usurps the powers already conferred by Parliament through the DMA on, the National Disaster Management Centre. In this respect they say

  • According to an explanation given by the Director-General in The Presidency, the role of the Command Council is to “coordinate” government’s response to covid-19 and “facilitate consultation”.
  • But these are precisely the functions that Parliament has determined should be discharged by the National Disaster Management Centre. One of the functions that Parliament confers on the Centre in s 30 of the DMA is that the Centre

“must act as a repository of, and conduit for, information concerning disasters, impending disasters and disaster management … may act as an advisory and consultative body on issues concerning disasters and disaster management [and] make recommendations to any relevant organ of state or statutory functionary on draft legislation affecting [the DMA], the national disaster management framework or any other disaster management issue”

  • The Command Council has usurped the role of the Centre in respect of the covid-19 pandemic. This is unlawful because it is inconsistent with the DMA and subversive of Parliament’s legislative authority.

They say all the 29 April 2020 Regulations are unconstitutional and invalid because they were conceived, at least in part, by a body that has no power to do so. In this respect they say

  • It is clear from numerous ministerial and presidential statements that the Command Council has made decisions, including the decision to move the country from Level Five to Level Four as from 1 May 2020.
  • But the Command Council has no power to make such decisions, whether under s 27 of the DMA or elsewhere.
  • Therefore the 29 April 2020 Regulations are vitiated by the Command Council’s unlawful hand in their making.

The students say the curfew, movement and economic restriction regulations are “substantively unconstitutional, unlawful and invalid”. In this respect they say

  • The curfew and movement restrictions needlessly violate the right of South Africans to human dignity [s 10 of the Constitution]. They do so by not permitting people to enjoy aspects of the right to human dignity such as family life. For example, they allow parents to move children and selected relations to attend funerals, but they do not allow geographically separated family members to visit each other, even in times of difficulty. [A son may attend a parent’s funeral but may not visit his parent who is terminally ill]. One of the applicants tells of an ordeal of having to choose between his parents and his partner because of these restrictions. He chose a parent.
  • The curfew and movement restrictions also violate the right to freedom of the person [s 12(1) of the Constitution] and the right to freedom of movement [s 21(1) of the Constitution].
  • The economic restrictions regulations also infringe the right to human dignity insofar as they undermine an individual’s autonomy to make her own consumption decisions. Commanding consumers to purchase only cold prepared food from grocers but not hot food, and restricting them to the purchase of “winter clothing” when they have the freedom to choose whatever season of attire they wish, is a violation of the right to human dignity.
  • The economic restrictions regulations also infringe the right to freedom of trade, occupation and profession [s 22 of the Constitution] as millions of citizens are now rendered unable to work by government’s restriction of work not falling within categories of “essential services and goods”.

The applicants say all these restrictions are unjustified. They say

  • There is no evidence to show that one has a greater risk of contracting covid-19 outside one’s residence than inside. The risk of contagion arises from exposure to infected persons. But this risk is addressed by the compulsory requirement of wearing of masks and social distancing in public spaces and adhering to other recommended safety protocols.
  • There is no evidence to show that one increases the risk of spreading covid-19 by buying cold food instead of hot food from a grocery store, or by buying Summer clothing (or Autumn or Spring) clothing instead of Winter clothing, or by buying educational books instead of recreational books (to the extent that there is a substantial distinction).
  • There is no conceivable link between exercising at 05h59, 09h01 or 14h00, on the one hand, and the spread of covid-19 on the other. If exercise is permitted during 3 early morning hours [the regulations permit exercise only between 06h00 and 09h00], it should be permitted throughout the day.
  • There is no conceivable link between the curfew and combating the virus. Covid-19 is not more transmissible at night than during the day.

The applicants say the application is self-evidently urgent because

  • the constitutional infringements are extensive
  • the infringements are ongoing
  • the infringements are freshly perpetrated with each passing day during Level Four and look likely to continue even under Level Three
  • the restrictions risk making the spread of the virus worse by congesting people in public spaces [between 0h600 and 09h00]

Still on urgency, they conclude

“it is clear that the respondents require judicial guidance on the constitutional rights that may not be infringed when responding to this covid-19 pandemic”

Related Documents:

You may access the full application here: Esau and Others v COGTA Minister and Others – Notice of Motion, FA and Annexures 20 May 2020

By |2020-05-23T20:46:04+02:00May 23rd, 2020|Blog, General, News|Comments Off on David v Goliath as Students Challenge Government Over Covid-19 Regulations: A Summary

South Africa’s Main Opposition Party (DA) Challenge to the Disaster Management Act, 2002: A Summary

On Friday 15 May 2020, the Democratic Alliance – the main opposition party in South Africa’s political landscape – filed papers in the Constitutional Court (the highest court in South Africa) challenging the constitutional validity of s 27 of the Disaster Management Act, 2002 (the DMA).

This constitutional challenge comes a day after the same party had launched a separate application in the High Court (the first in the ascending order of higher courts hierarchy in South Africa). In that application, it challenges the constitutional validity, rationality and reasonableness of:

  • certain curfew regulations made by the Minister of Cooperative Governance and Traditional Affairs (COGTA),
  • certain transport restriction directions issued by the Minister of Transport, and
  • certain e-commerce directions issued by the Minister of Trade, Industry and Competition

ostensibly to “flatten the curve” of covid-19 infections in South Africa.

This is a summary of the Constitutional Court challenge. I express no view on its merits.

Section 27(1) of the DMA confers on the Minister the power to declare a national state of disaster, s 27(2) the power to issue regulations, s 27(3) the purpose for which such regulations may be issued, s 27(4) the power to prescribe penalties for any contravention of regulations, and s 27(5) the right to terminate or extend the declaration of the national state of disaster.

The Relief Sought

In a nutshell, the Democratic Alliance (the DA) wants the Constitutional Court to declare that s 27 of the DMA is unconstitutional and invalid to the extent that it does not permit of Parliamentary oversight to the Executive (that is, the President and his cabinet) in its promulgation of regulations and issuing of directions and notices as measures aimed at addressing covid-19.

In order to remedy the unconstitutionality and invalidity, the DA wants the Constitutional Court to read into s 27 a new provision that confers an oversight role on the National Assembly in relation to the Executive’s regulation-making powers. Specifically, it wants a new provision under s 27 of the DMA to say:

  • A copy of any declaration of a national state of disaster in terms of s 27(1) of the DMA, including its extension, must be tabled in Parliament, by the Minister who makes such declaration or effects its extension, as soon as possible after publication of that declaration for consideration, recommendation and approval of Parliament.
  • Any regulation made or direction issued under s 27(2) of the DMA must be tabled in Parliament, by the relevant Minister, as soon as possible after the publication thereof for consideration, recommendation and approval of Parliament.
  • If Parliament should disapprove of the declaration, extension of a declaration, regulation or direction, such declaration, extension, regulation or direction will cease to be of force and effect from the date that the National Assembly resolves to disapprove of such declaration, extension, regulation or direction, and to the extent to which it is so disapproved.

To that end, the DA asks the Constitutional Court to direct the COGTA Minister to table in the National Assembly the following documents within 3 days of the court’s order for consideration, recommendation and approval:

  • the declaration of the national state of disaster in GN 313 GG 43096 of 15 March 2020
  • the regulations issued in terms of section 27(2) of the Act published in GNR 480 GG 43258 of 29 April 2020
  • all directions and regulations issued under the 29 April 2020 Regulations

In prayer 5 of its notice of motion, the DA asks the Constitutional Court to declare that:

“none of the declarations, regulations and directions made in terms of section 27 of the Act prior to the date of this order are invalidated only by virtue of the [declaration of invalidity of s 27, the reading in of the new provision, and the tabling in Parliament of the 15 March 2020 declaration, the 29 April 2020 Regulations and all the regulations and directions issued under the 29 April 2020 Regulations].”

This prayer may cause some consternation but it need not. Clarity emerges in paragraphs 11 and 12 of the DA’s Founding Affidavit which say:

“This relief would not invalidate any aspect of the Executive’s response to COVIC-19. Everything the President, the Minister and the members of the national ‘Command Council’ have done to date would remain valid unless Parliament determines otherwise. Nor would the relief preclude the Executive from acting with great speed in response to COVID-19 – its power to do so would be fully preserved.

But the relief sought would ensure that the elected representatives of South Africa have an opportunity to engage with, question and ultimately decide whether to disapprove of the measures taken by the Minister. In other words, it would place the debates about these measures where they belong – before the elected representatives of South Africa and in the public eye. I submit that this is what the Constitution requires.”

In short, it appears that what the DA wants the Constitutional Court to do is to leave it to Members of Parliament, as elected public representatives of the people of South Africa, to decide whether or not the covid-19 measures are proportional and in the public interest, instead of the Executive deciding that issue alone without Parliamentary oversight, or the Constitutional Court itself deciding the issue at this stage.

Direct Access to the Constitutional Court

Before we get to the DA’s argument in support of the relief it seeks, a brief word about going directly to the Constitutional Court without first approaching the High Court, then the Supreme Court of Appeal and only thereafter the Constitutional Court.

In the South African court system there are four layers in the hierarchy of higher courts outside of the specialist courts.

  • the first layer comprises the high court presided over by one judge
  • the second layer consists of the Full Bench of the high court comprising, ordinarily, a panel of 3 high court judges
  • the third layer is the Supreme Court of Appeal comprising, ordinarily, a panel of 5 judges of appeal
  • the fourth and final layer is the Constitutional Court which comprises 11 justices but 8 constitute a quorum.

It is only in exceptional circumstances that the Constitutional Court entertains an application directly to it. The factors – which do not constitute an exhaustive list – that the Constitutional Court has in numerous decisions considered in deciding whether or not to grant direct access include:

  • prospects of success
  • the nature of the constitutional issues raised
  • the need for an urgent decision from the Constitutional Court
  • whether the Constitutional Court requires the views of lower courts
  • whether it is desirable for the Constitutional Court to sit as a court of first and final instance
  • whether similar issues are pending before the Constitutional Court
  • whether prejudice to the public good or good governance may occur
  • whether the issue to be decided has a “grave bearing on the soundness of our constitutional democracy”
  • the importance of the constitutional issue raised and the desirability of obtaining an urgent ruling of the Constitutional Court on it
  • whether any dispute of fact may arise in the case
  • the possibility of obtaining effective relief in another court
  • the time and costs that may be saved by approaching the Constitutional Court directly

In order to meet that standard, the DA says:

  • it has good prospects of success
  • the application concerns the limits to Parliament’s powers to delegate legislative authority under the Constitution
  • no disputes of fact are likely to arise
  • there is a fine line between bold action being taken in order to deal with a crisis, on the one hand, and the unconstitutional concentration of power in the Executive on the other, and that the Constitutional Court, as the upper guardian of the Constitution, must intervene urgently to show where that line is
  • South Africans are entitled to have a say in how they are governed in this crisis and that entitlement is now not months down the line
  • Because the constitutional validity of a legislative provision is in question, the high court is not the final arbiter on such issues
  • If the DA were to go to the high court first, an obviously urgent question of constitutional invalidity will be resolved months later
  • the application does not involve the development of common law

Grounds for the Relief Sought (at a Glance)

The DA says s 27 of the DMA is unconstitutional because:

  • The section confers broad powers on a Minister designated by the President not only to issue regulations but also to authorise other Ministers to issue directions, all virtually without procedural constraints or Parliamentary oversight.
  • This absence of oversight manifests in, among other things, needlessly prescriptive directions, like what food and clothing items people may buy, what time they may exercise or walk their dogs, restrictions to e-commerce without any discernibly rational connection to the purpose of limiting covid-19 infections, all on pain of criminal prosecution and conviction.
  • The absence of Parliamentary oversight also manifests in the severe incursions into the fundamental rights of South Africans that would otherwise have had to be explained to Parliament, ameliorated or possibly avoided altogether.
  • The restrictions in s 27(3) are “not much of a restriction”. They are “broad and vague” and provide “no policy framework within which the Minister must operate”.
  • The section authorises an impermissible delegation of legislative power by Parliament with Parliament playing a spectator role.
  • The section creates a de facto state of emergency but without the safeguards, checks and oversight measures applicable in a state of emergency.
  • The section creates a body of laws and legal paradigm that is parallel to South Africa’s law of general application.
  • The section fails to enable Parliament to scrutinise and oversee executive action, as the Constitution requires in s 42(3) and s 55(2), and violates those 2 provisions of the Constitution. Section 42(3) of the Constitution says:

“The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action.”

Section 55(2) says:

“The National Assembly must provide for mechanisms-
(a) to ensure that all executive organs of state in the national sphere of government are accountable to it; and
(b) to maintain oversight of-
  (i) the exercise of national executive authority, including the implementation of legislation; and
 (ii) any organ of state.”

Importantly, in paragraph 99 the DA stresses that it is not asking the Constitutional Court to determine “polycentric questions of policy”. This is because the Constitutional Court has in the past ruled that the separation of powers doctrine precludes the courts from determining questions of government policy that fall within the realm of the Executive.

The DA also stresses that it is not asking the Constitutional Court to make an order preventing the Executive (President and his cabinet) from acting quickly under the DMA. All it asks for, it says, is an order which provides it (and by extension Parliament) with an after-the-fact mechanism to influence delegated law-making under the DMA.

Related Documents:

DA Concourt Notice of Motion on s 27 of the DMA

DA Concourt Founding Affidavit with Annexures on s 27 of the DMA

By |2020-05-17T00:42:37+02:00May 16th, 2020|Blog, General, News|1 Comment

Will the Courts be Our Last Beachhead Amid Covid-19 Excesses?

In his address to South Africans on the evening of Wednesday 13 May 2020, the President of South Africa made reference to shortcomings in his government’s interventions aimed, ostensibly, at “flattening the curve” of covid-19 infections. The President said:

“Some of the actions we have taken have been unclear, some have been contradictory and some have been poorly explained. Implementation has sometimes been slow and enforcement has sometimes been inconsistent and too harsh. This evening, I want to reaffirm my commitment and the commitment of the government I lead to take whatever action is necessary to safeguard the life, the dignity and the interests of the South African people.”

Because “eternal vigilance is the price of liberty” let us explore the President’s mea culpa and commitment a little more closely.

The President, I’m afraid, either misdiagnoses the problem with his interventions or mischaracterises it. Yes, a great number of the regulatory interventions lack clarity. Yes, his ministers contradict what he tells South Africans not only by what they say but also by what their directives and regulations say. Yes, the conduct of his police force and soldiers demonstrate that his vision has been poorly explained to them. But, the problem is far more serious: many of these interventions appear to be irrational and possibly even unconstitutional.

Misdiagnosis inevitably tends to result in prescribing the wrong intervention. If you diagnose a common flu as HIV you are likely to prescribe anti-retroviral drugs than short-term administration of paracetamol.  So, when the President misdiagnoses a problem, it is not reasonable to expect South Africans to trust the President’s interventions and “commitment … to take whatever action is necessary to safeguard the life, the dignity and the interests of the South African people”; lest such “necessary” action be tantamount to administering anti retrovirals to treat flu.

I shall take just one example to illustrate this point: one showing possible unconstitutionality of one of the regulations.

The 29 April 2020 Regulations are the latest substantial regulations to be issued by the Minister of Cooperative Governance and Traditional Affairs. Regulation 14(2) of those regulations is possibly unconstitutional both in its over-breadth and because it is capable of being invoked in order to suppress opinion on government’s covid-19 intervention that government does not like.

The regulation says:

“(2) Any person who publishes any statement, through any medium, including
social media, with the intention to deceive any other person about-
(a) COVID-19;
(b) COVID-19 infection status of any person; or
(c) any measure taken by the Government to address COVID-19,
commits an offence and is liable on conviction to a fine or imprisonment for a period not exceeding
six months, or both such fine and imprisonment.”

Some people hold and express the view that covid-19 is just a flu virus strain, like Influenza, and so does not justify the drastic measures that the South African government has taken, like limiting people’s outdoor physical exercise to between 06h00 and 09h00, prescribing people’s wardrobes and the food items that people may buy.

These people may be absolutely wrong not only in their characterisation of covid-19 but also in their assessment of what it takes to address it effectively. But that does not warrant even a threat of arrest by a police officer on the beat suspecting an “intention to deceive” to be lurking behind that opinion, a question that only a court can resolve some months if not years later, by which time a citizen will have been persecuted and subjected to the ignominy of being hauled before a criminal court, possibly in handcuffs, just for expressing an opinion and sharing an idea on government’s response to covid-19 that the government does not like.

The mere existence of the threat of prosecution in regulation 14(2) for expressing an opinion or sharing an idea has a chilling effect on the right to free expression which is enshrined in the Bill of Rights Chapter of the South African Constitution which confers on everyone

“the right to freedom of expression, which includes … freedom to receive or impart information or ideas”

We know this because the Constitutional Court has pronounced on it. In one of its earlier decisions in Mamabolo [2001] ZACC 17; 2001 (3) SA 409 (CC) it said:

“Freedom of expression, especially when gauged in conjunction with its accompanying fundamental freedoms, is of the utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm. Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories, freedom of expression — the free and open exchange of ideas — is no less important than it is in the United States of America. . . . Therefore we should be particularly astute to outlaw any form of thought control, however respectably dressed. . .”

That was 19 years ago.

Soon thereafter (citing the European Court of Human Rights in Handyside v The United Kingdom  (1976) 1 EHRR 737 to demonstrate that South Africa is not alone among democratic nations to hold freedom of expression dear) the Constitutional Court said the following in Islamic Unity Convention [2002] ZACC 3; 2002 (4) SA 294 (CC):

“[The right to freedom of expression is] applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb . . . . Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.”

The same is true for the United States. In United States of America v Schwimmer 279 US 644 (1929) (73 L Ed 889) Holmes J said:

“If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”

On the constitutionally permissible limitation to the right to free speech, the Constitutional Court said:

“Where the state extends the scope of regulation beyond expression envisaged in section 16(2) [of the Constitution], it encroaches on the terrain of protected expression and can do so only if such regulation meets the justification criteria in section 36(1) of the Constitution.”

Section 16(2) of the South African Constitution excludes from constitutional protection only speech or expression or opinion which amounts to

  • propaganda for war;
  • incitement of imminent violence; or
  • advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

In Laugh It Off [2005] ZACC 7; 2006 (1) SA 144 (CC) the Constitutional Court summed it all up in one sentence:

“unless an expressive act is excluded by s 16(2) [of the Constitution] it is protected expression”

More recently, the second highest court in South Africa (the Supreme Court of Appeal) in Qwelane v South African Human Rights Commission and Another 2020 (2) SA 124 (SCA) has weighed in. Citing George Orwell, it says:

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”

So, unless an opinion on covid-19 or any measure taken by the South African government to address covid-19 amounts to (1) propaganda for war, (2) incitement of imminent violence, (3) advocacy of hatred based on race, ethnicity, gender or religion constituting incitement to cause harm, it is protected by the Constitution.

Regulation 14(2) does not suppress opinion which propagates war, incites imminent violence or advocates hatred on stated grounds. It suppresses, on the face of it, constitutionally protected expression.

But the right to express an opinion is not absolute. It may be lawfully limited for greater good. It sounds all utilitarian, but for regulation 14(2) to be found unconstitutional it must fail the justification analysis in s 36(1) of the South African Constitution. The inquiry is whether the limitation of the right is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account factors such as:

  • the nature of the rights being disrupted;
  • importance of the purpose for which the rights are being disrupted;
  • the nature and extent of such disruption;
  • the rational connection between the disruption and its purpose; and
  • whether there are less disruptive means to achieve the purpose of the disruption.

The Constitutional Court has said in numerous decisions that this list of considerations in the justification analysis is not exhaustive as, ultimately, the question is whether the limitation of rights is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The Constitutional Court has also stressed that the justification analysis need not be dealt with on the basis of a check-list approach.

The Constitutional Court has said the following about the courts’ constitutional responsibility in the face of executive excesses:

“No-one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law against governmental erosion.”

and

“Without [moral] authority [the judiciary] cannot perform its vital function as the interpreter of the Constitution, the arbiter in disputes between organs of state and, ultimately, as the watchdog over the Constitution and its Bill of Rights — even against the state.”

Here is my question: In light of the many pronouncements of the Constitutional Court and the Supreme Court of Appeal – some of which are cited above – on the constitutional importance of the right to freedom of expression in a constitutional democracy given our history in South Africa of the suppression of free speech under apartheid, will the courts exercise their moral authority to arrest what seems to be precipitous governmental erosion of the rule of law in the name of “flattening the curve” of covid-19 infections, or will the judiciary endorse a reading of regulation 14(2) that makes “thought police” of the state by suppressing opinion?

Will the courts be bold in their judicial activism or adopt an executive-minded approach by categorising governmental erosion of our rights as “polycentric” or “policy-laden” intervention over which they are powerless to pronounce? Time will tell.

By |2020-05-15T12:13:05+02:00May 15th, 2020|Blog, General, News|1 Comment

Accountability Knows No Rank: The President Must Account

Being constantly bombarded and overloaded with information, it should come as no surprise that human beings tend to find it difficult to keep up with the stories unfolding around them, critically analyse them, and connect the dots over time. To illustrate my point let me use an example that caught my attention a number of years ago.

On 30 May 2008, Judges of the Constitutional Court (the highest Court in South Africa) issued a media statement accusing a Judge President (the Head of one of 9 High Courts and 8 local divisions in South Africa) of violating the Constitution. The allegation was that the Judge President had attempted to influence the outcome of a case in which a judgment was then pending in the Constitutional Court, thereby undermining judicial independence and impartiality.

On that occasion, not only the entire organised profession of advocates (as then represented by the General Council of the Bar) but also a retired Judge of the Constitutional Court, a non-profit organisation and the entire mainstream media led the charge in the condemnation of the Judge President – based on an allegation that, more than 12 years later, is yet to be proved.

Fast forward some 12 years to 4 May 2020. The President of the Republic of South Africa condemns advocates – one of whom is a Senior Counsel of many years’ standing – for what he says is their “insistence on putting in jeopardy all measures taken to save South African lives”. He says, through the pen of the cabinet secretary writing on the letterhead of The Presidency, the advocates’ conduct “is not commensurate … with their positions as officers of the court”.

Those of us who are members of the organised advocates profession – which is generally conservative in its culture – know the seriousness of an accusation that a practising advocate’s conduct is not commensurate with his/her position as an officer of the court. Such allegation is never made lightly by members of the profession because we know that once that well of integrity has been poisoned (even if unfounded) the damage is hard to repair. That is why the President’s remark can only be seen as a naked threat.

This could have been avoided as I shall endeavour to show. It is also difficult to blame anyone who interprets it as a suppression of opinion that the President does not like. Section 16 of the Constitution [freedom of expression] is implicated. So, too, the human dignity provision in s 10 of the Constitution. The threat, whether intentional or not, also jars against the foundational constitutional values of “human dignity” [s 1(a)] and the “supremacy of the Constitution and the rule of law” [s 1(c) & s 2].

But equally troubling is the supine attitude adopted by the legal profession in the face of this unwarranted attack. Not one association of advocates, not one retired Judge, not one non-profit organisation, not one mainstream media house has condemned this naked threat by The Presidency of advocates for raising issues of constitutional import with the President for clarification and requesting information.

So, what had the advocates done to trigger such a dressing down and naked threat by the highest political office?

The Cause

On 27 April 2020 – Freedom Day in South Africa, as it happens, loosely the equivalent of Independence Day in the United States of America – a firm of attorneys acting for two advocates who are members of the Johannesburg Society of Advocates, sought clarification from the President on the provenance of a structure known as the National Command Council (the NCC). They sought the clarification and request for information from the President “in [his] capacity as the Honourable President of the Republic, and in [his] capacity as the chairperson of the National Coronavirus Command Council”.

The inquiry, said the two advocates, was necessitated by lack of information on the provenance of the NCC, its role, and the confusion that abounds following conflicting information put out by Ministers in the President’s cabinet about the NCC and its powers. For example, the advocates said, Ministers have described the NCC variously as:

  • the centre of information sharing
  • co-ordinating and implementing measures to contain the virus
  • leading the country’s response to the pandemic

The advocates reminded the President that

  • in his televised public address dated 24 March 2020 the President told South Africa that the NCC was the body that had made the determination to enforce a 21 day national lockdown;
  • on 3 April 2020 the Minister of Police told South Africa that the NCC had “revised” the regulations;
  • in his public address of 9 April 2020 the President told South Africa that the NCC was the body that determined that the national lockdown should be extended;
  • under the extended lockdown plan announced by the President on 23 April 2020, the NCC has the power to determine coronavirus alert levels, and it had already made a determination that the current alert level be positioned at level 4.

The advocates concluded these reminders to the President by saying:

“We assume that these statements are an accurate reflection of the position but remain open to correction.”

The advocates advanced legal argument on what they believe (in the absence of clear official information on the provenance of the NCC) to be the NCC’s overreach in performing “statutory regulation-making powers” and “executive powers”.  

Why did the advocates seek clarification and request for information in their letter? They addressed this in their letter as follows:

“[O]ur attempts to locate any official documentation establishing the NCC or providing for a lawful delegation of functions [to it] have yielded no results. It appears that such documentation does not exist, alternatively, if it does exist, it has not been made publicly available.”

The advocates then “respectfully request clarification” on two specific issues:

  • The legislative or other basis for the establishment of the NCC;
  • The extent of the powers being exercised by the NCC.

In conclusion they wrote:

“The decision to address this correspondence to you was not taken lightly, and it is now addressed to you in the spirit of cooperation and democratic vigilance. We emphasise that it is not our intention to undermine the Government’s response to the COVID-19 pandemic. We are mindful of the highly pressurised and time sensitive environment in which you are operating, and the extraordinary balancing acts that are being required of you at this time.

However, our understanding of the burden you shoulder does not detract from the requirement that all exercises of power must be lawful, nor does it in any way mitigate our concerns. The purpose of our letter is accordingly to procure sufficient certainty about the NCC to reassure ourselves that democratic checks and balances remain in place, and that the regulations which continue to severely circumscribe the rights of all South Africans subsist within the boundaries of our Constitution…

We are hopeful that the questions raised in this letter can be resolved in a cooperative manner.”

Then the advocates’ attorneys requested the President to provide answers to the two questions posed to him, namely, (1) the legislative or other basis for the establishment of the NCC, and (2) the extent of the powers being exercised by the NCC.

The attorneys told the President that if this was not done by 13h00 on 4 May 2020, or at such extended deadline as the President may require, the two advocates “may consider approaching their ethical bodies for directives concerning potential litigation”.

The Trouble

The President answered neither of the two questions “respectfully requested” of him for clarification in his capacity both as President of the Republic of South Africa and as chairperson of the NCC. Instead, speaking through the cabinet secretary, the President dressed down the advocates, lecturing them on “trite principles of our Constitutional democracy”, excoriating them for “insistence on putting in jeopardy all measures taken to save South African lives” and threatening them saying their inquiry “is not commensurate … with their positions as officers of the court”.

The President’s letter:

  • conflates the function of the NCC with that of bodies like cabinet’s Inter-Ministerial Committees (the IMC) and clusters of Ministers
  • deals with a separation of powers question (between the executive and the legislature) that was never raised;
  • talks of his power to assign the administration of legislation to members of cabinet, an issue never raised;
  • talks of the accountability of cabinet ministers to Parliament, a matter that is not in issue;
  • harks back to the position that the NCC is “a coordinating body”, like the IMC and a cluster of Ministers, a statement of fact that seems inconsistent with the President’s statements in his addresses (according to the two advocates) dated 24 March 2020, 9 April 2020 and 23 April 2020;
  • defends Minister Dlamini-Zuma against a claim of “interference” that is nowhere in the advocates’ letter. The advocates said, on the information available to them, the NCC seems to interfere with “statutory regulation-making powers” and “executive powers” and asked the President to clarify this; and
  • accuses the advocates of threatening litigation, an accusation that does not sit comfortably with the general tenor of the advocates’ request for information, clarification, spirit of cooperation, and their indication that they “may consider approaching their ethical bodies for directives concerning potential litigation”. In practice – of which neither the President nor the cabinet secretary may be aware – this last approach means the advocates would seek guidance from the Professional Committee of their Bar Council which may possibly advise against litigation.

The Concern

Having read both the letter of the two advocates requesting information and clarification from the President about the provenance of the NCC that the President chairs and the extent of its powers, on the one hand, and the President’s “sharp” response to their letter, on the other, one wonders whether lawyers who dare seek clarity from the President about matters of constitutional importance are safe to raise these questions not only in their personal capacities as citizens [s 3(2)] but also as legal practitioners [s 22] representing those who do.

The Constitutional Court has described the President in Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly [2016] ZACC 11, 2016 (3) SA 580 (CC), 2016 (5) BCLR 618 (CC) at para 20 as

a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of state affairs and the personification of this nation’s constitutional project.”

Given the regrettably cantankerous response from the office of such a “constitutional being” to a civil request for information to which the requester is entitled as a citizen and a voter, what hope is there for an independent legal profession and respect for the Rule of Law in South Africa going forward?

By |2020-05-08T14:47:00+02:00May 8th, 2020|Blog, General, News|3 Comments

20 Useful Points to Remember About the COVID-19 Regulations

On Sunday, 15 March 2020, the Minister of Co-Operative Governance and Traditional Affairs, Minister Nkosazana Dlamini-Zuma (the Minister), declared a national state of disaster in terms of s 27(1) of the Disaster Management Act, 2002 (the DMA) following the discovery of some 61 reportedly confirmed cases of COVID-19 (or Coronavirus) in the country.

That number has since climbed to more than 200. According to official department of health reports, the number stood at 240 by Saturday afternoon, 21 March 2020, less than a week after the President’s announcement of just 61 confirmed cases.

The Minister was presumably designated by the President in terms of s 3 of the DMA to declare a national state of disaster.

The President then addressed the country that evening on the issue. You may access the President’s full speech here.

Two days later, on 17 March 2020, the Minister  issued Regulations in terms of s 27(2) of the Disaster Management Act, 2002. You may access those Regulations, under Government Gazette No. 43107 dated 18 March 2020, here.

In times of national crisis – like viral outbreaks or other natural disasters – governments have the power to pass laws without having to go through the usual consultation processes. This is one such moment. The Disaster Management Act confers upon a Minister designated by the President – in this instance the Minister of Co-Operative Governance and Traditional Affairs – the power to issue regulations in terms of that Act. These regulations are not suggestions. They are binding laws with serious consequences to those who deliberately disobey them.

As this is an unfolding crisis, it is not unreasonable to expect that government may have to introduce more regulations as the need arises, again without consultation.

It is on occasions like these that the judgment of the voter becomes truly tested, because the powers that a Minister may exercise in moments of crisis or disaster could be used as easily for the good of the nation by a politician with good intentions, as abused for nefarious purposes by a politician with bad intentions.

Here is my list of 20 things to note about these Regulations:

  1. Gatherings of more than 100 persons are prohibited [Reg 3(1) read with definition of ‘gathering’ in reg 1, the “Definitions” clause]. If you should convene a gathering of more than 100 persons you may be liable to a fine and/or imprisonment of up to 6 months on conviction [Reg 11(1)(a)]. Events like weddings, anniversaries, funerals, unveilings, commemorations, political rallies, protest marches, church gatherings, rugby matches and other sporting activities spring immediately to mind. Of course, this is not an exhaustive list.
  2. Gatherings of more than 50 people at premises where liquor is sold and consumed is prohibited [Reg 3(3)]. If you should permit more than 50 persons to purchase and consume liquor at your premises you may be liable to a fine and/or imprisonment of up to 6 months on conviction [Reg 11(1)(b)].
  3. There will be strict enforcement of these regulations, including dispersal of such gatherings, arrest and detention of offenders [Reg 3(2)]. Anyone who should interfere with or hinder or obstruct an enforcement officer (probably SAPS) in the performance of his or her duties may be liable to a fine and/or imprisonment of up to 6 months on conviction [Reg 11(1)(c)].
  4. Schools and “partial care facilities” have been closed with effect from 18 March 2020 until 15 April 2020 subject to further closure at the discretion of the Minister [Reg 6]. Any person who fails to comply with the schools closure decree will be guilty of an offence and may on conviction be liable to a fine and/or imprisonment for up to 6 months [Reg 11(2) & Reg 11(3)].
  5. All visits by members of the public to prisons, remand detention facilities, holding cells, military detention facilities, Department of Social Development facilities (including child and youth care centres, shelters, one stop centres, and treatment centres), are suspended for 30 days from 18 March 2020 subject to extension for any further period at the discretion of the Minister, but not beyond the duration of the national state of disaster [Reg 7]. Spare a thought for social grant recipients who collect their grants at community halls.
  6. Taverns, restaurants, clubs and any other premises that sell liquor for consumption at the premises must be closed with immediate effect [Reg 8(1)]. This regulation seems rather heavy-handed and irreconcilable with regulation 8(4) which prescribes business hours for premises selling liquor for on-site consumption. Perhaps possible confusion in this respect will be resolved soon.
  7. In the alternative, businesses that sell liquor for consumption at the premises are required to accommodate no more than 50 persons at any time, provided that adequate space is available and that all directions in respect of hygienic conditions and limitation of exposure to persons with COVID-19, are adhered to [Reg 8(1)].
  8. All premises selling liquor which provide accommodation must implement measures to stop the spread of COVID-19, including making provision for adequate space, adherence to all directions in respect of hygienic conditions, and limitation of exposure to persons with COVID-19 [Reg 8(2)].
  9. No special liquor licenses or events liquor licenses may be considered for approval during the duration of the national state of disaster [Reg 8(3)].
  10. All restaurants, taverns, clubs and other premises selling liquor for consumption at the premises must be closed between 6pm and 9am the next morning on weekdays (Mondays to Saturdays) and from 1pm on Sundays and public holidays [Reg 8(4)].
  11. All premises selling liquor for consumption outside the premises (take-aways) must be closed between 6pm and 9am the next morning on weekdays (Mondays to Saturdays) and from 1pm on Sundays and public holidays [Reg 8(5)].
  12. No person who has been (1) clinically confirmed as having COVID-19, (2) or suspected of having contracted COVID-19, (3) or who has been in contact with a person who is a carrier of COVID–19, may refuse consent to an enforcement officer for submission to a medical examination, including the taking of any bodily sample by a person authorised in law to do so, admission to a health establishment or a quarantine or isolation site, or submission to mandatory prophylaxis, treatment, isolation or quarantine or isolation in order to prevent transmission of the virus [Reg 4(1)]. One imagines that disputes may arise as regards what constitutes reasonable suspicion, thus keeping some lawyers relative busy in the courts.
  13. If a person does not comply with the instruction or order of the enforcement officer, that person must be placed in isolation or quarantine for a period of 48 hours pending a warrant being issued by a magistrate, on application by an enforcement officer for medical examination [Proviso to Reg 4(1)]. But if such instruction is founded on a “suspicion” by an enforcement officer that a person has contracted the virus or has come into contact with a carrier of the virus, and the person denies this emphatically, this dispute may conceivably end up in urgent court.
  14. A warrant for medical examination may be issued by a magistrate, if it appears from information on oath or affirmation by an enforcement officer (1) that a person is confirmed as having been infected with COVID-19; (2) or that the person is on reasonable grounds suspected of having contracted COVID-19; (3) or that the person has been in contact with, or on reasonable grounds is suspected to have been in contact with a person who is a carrier or infected with COVID–19 [Reg 4(2)]. This may provide another fertile ground for urgent court litigation. Phrases like “if it appears … on reasonable grounds” are notorious litigation magnets.
  15. The warrant for medical examination may impose such restrictions on the powers of the enforcement officer as the magistrate may consider fit [Reg 4(3)].
  16. A warrant for medical examination remains in force until (1) it is executed; (2) or it is cancelled by the person who issued it or, if such person is not available, by any person with similar authority; (3) or the expiry of 90 days from the date of its issue; (4) or the purpose for the issuing of the warrant has lapsed, whichever occurs first [Reg 4(4)].
  17. No person is entitled to compensation for any loss or damage arising out of any action or omission by an enforcement officer done in good faith [Reg 4(5)]. So, if an enforcement officer in good faith detains a person on suspicion that the person has contracted the virus or has come into contact with a carrier of the virus, and the person subsequently shows that he or she has neither contracted the virus nor come into contact with a carrier, the state cannot be held liable for damages for, say, wrongful detention or medical examination. However, if the person can show that the enforcement officer acted in bad faith or that there was no reasonable basis for the suspicion that the person was a carrier or had come into contact with a carrier, then it would seem that this regulation may not assist the state.
  18. Any person who intentionally misrepresents that he, she or any other person is infected with COVID-19 is guilty of an offence and will on conviction be liable to a fine and/or to imprisonment for up to 6 months (Reg 11(4)].
  19. Spreading fake news about COVID-19 through any medium, including social media, with the intention to deceive constitutes a crime and on conviction may attract a fine and/or imprisonment for up to 6 months (Reg 11(5)]. Read that again. Pranks have no place in this crisis.
  20. Any person who intentionally exposes another person to COVID-19 may be prosecuted for an offence, including assault, attempted murder, or murder should the other person die [Reg 11(6)]. There must be intention to expose. Negligent exposure would seem not to be enough. But do you want to take a chance?

Latest updates on Covid-19 can be accessed from the website of the Department of Health here.

They may also be accessed through the website of the Department of Co-Operative Governance and Traditional Affairs here.

Everyone is urged to make every contribution in order to arrest the further spread of this Covid-19 virus. We should all keep ourselves informed and proceed with every caution in the face of this relatively new and developing challenge.

By |2020-03-21T23:28:35+02:00Mar 21st, 2020|Blog, General, News|1 Comment

The Pen as Sword: The Unbridled Power of Journalists and its Effects on Society

It is often said that “the Pen is mightier than the Sword”. Quite so, in the South African media space, but not in the sense sought to be conveyed by the epigram.

It is with concern that I watch ordinary South Africans, in the absence of rational and informed voices in the public space, drinking copiously from the font that is the supposed wisdom of “opinion makers” on esoteric matters of law they know little (if anything) about, and are therefore caught up in a maelstrom of ignorance.

The Bar discourages its members from engaging in public debate on matters that are pending in the courts. This may inadvertently be a contributing factor to the dominance in public media of ill-informed, and dangerously misleading, commentary on legal matters. Perhaps, given the changing times and proliferation of fake news and ignorance, it is a prohibition that the Bar should seriously consider revisiting.

In an environment where uninformed legal commentary monopolises the public space, the rule of law is sure to take a back seat while the truth gets lost in the process.

We have seen many examples where court rulings were interpreted based on bias, prejudice, perception and preconceived narratives, instead of the actual basis of the ruling. For example, the persecution of President Zuma in the media on a charge of which he had been acquitted by a court of law; the praising of Minister Gordhan for “winning” a case he had in fact lost, it being suggested that he “achieved what he wanted”; the excoriation of the Chief Justice for dissenting and characterising the majority’s judgment as judicial overreach in a case in which the media seemed intent on the opposite outcome.

Too often we find that the media and, by extension, the general public, expect the court to rule in a particular manner because it fits what to them seems as common sense. One example of this phenomenon comes following a 9 March 2018 High Court order that the assets of the Gupta family be released from state capture (pun intended) because, said the court, there is no reasonable possibility that a confiscation order may be made.

The Gupta Asset Forfeiture Case

Many opinion makers reacted quite emotionally at the outcome of that case! They blamed everything from the (supposed) incompetence of the prosecuting authority to the (supposed) incompetence of the Judge. There was even a theory that the National Director of Public Prosecutions may have deliberately assigned people to the “prosecution” of the case and withheld resources from them so that they failed. That the state was led by Senior Counsel of considerable experience and ability was conveniently disregarded.

When one reacts from an emotional space because one’s preconceived narrative has been disturbed, it becomes difficult to take a step back and objectively assess whether the Judge may have been right in his assessment of the evidence before him, and may in the process have come to the only reasonable conclusion on that evidence.

When you only reason from the script that the Guptas are guilty of state capture (a “criminal offence” of media invention from the Public Protector’s report titled “State of Capture”), it could easily be believed that everything they own is “proceeds of crime”. However, nothing in life is that simple. So, when the Judge deviated from that script, either he or the “prosecuting” team was deemed incompetent.

This is a dangerous phenomenon which poses a serious threat to the Rule of Law.

Let me hasten to state that I express no view on whether the Judge was right or wrong in his finding. I am simply cautioning against being driven by assumptions, especially when fuelled by prejudice, and urge us all to get back to the Rule of Law. Law is not actuarial science. It brooks no assumptions but rebuttable presumptions.

The Gupta case was not a criminal prosecution. It was a civil case brought in terms of chapter 5 of the Prevention of Organised Crime Act (POCA). This is how it works:

  • First, the Asset Forfeiture Unit (AFU) – a unit within the National Prosecuting Authority – seeks a restraint order from the High Court to search the premises of the respondents (the Guptas) and seize all their “realisable property” if they are suspected of having committed a criminal offence. It matters not whether or not the assets themselves are “proceeds of crime”.
  • Second, the restraint order is obtained without giving notice to the respondents for fear they may hide or dispose of them.
  • Third, the order gives the respondents an opportunity to show cause, typically on 24 hours’ notice, why the restraint order should not be made final.
  • Fourth, if they fail to show cause, the order is made final. That means the respondents cannot do anything with those assets and, where feasible, they are removed and placed in the care of a curator appointed by the court at the instance of the AFU.
  • Fifth, at this stage, all the AFU has to show is that there are reasonable grounds for believing that a confiscation order may be made against the respondents in respect of those assets. If it does, the restraint order will be made final. If it fails, the order will be discharged. That means the assets will be released from state capture. A confiscation order is made only once a conviction has been secured on the criminal offence of which the respondents were suspected.
  • Sixth, whether or not the order is made final, the prosecuting authority will, if it still believes that there are reasonable prospects of a successful prosecution, take the matter to trial on the alleged criminal offence. Just to be clear: There is no such thing as a “state capture” criminal offence. It is a media invention.
  • Seventh, once the respondents (accused) are convicted, the AFU will then apply for, and obtain, a confiscation order. That means the assets will be lawfully owned by the state. If the respondents are acquitted, the respondents will be entitled to the release of their assets.

All that has happened in the case against the Guptas in the Bloemfontein High Court is that, after granting the restraint order and affording the Guptas an opportunity to show cause why the restraint order should not be made final, the Guptas took that opportunity and showed that there are no reasonable grounds for believing that a confiscation order may be made. In other words, they showed that there are no reasonable prospects of a successful prosecution and conviction.

That an expectation may have been created in the media that the Guptas’ guilt of “state capture” was a forgone conclusion when their properties were raided to much delirious applause is completely irrelevant.

This does not mean the end of the road for the prosecution of the alleged offences against the Guptas. It does not mean the Judge is incompetent or that the prosecution is incompetent. At best for those of us who believe in the system, it means that the Rule of Law still trumps the Rule of ill-informed opinion leaders in South Africa.

But more than a year has now passed since that 9 March 2018 judgment. The question that arises is whether the state has since pressed on with its criminal case and obtained a conviction. I certainly have not heard anything in that regard. Yet the narrative persists that the Guptas are “guilty” of “State Capture”.

At the risk of being accused of siding with the Guptas, or of being labelled a “Zuptoid”, I must stress that the reality is that until they have been found guilty in a court of law, it remains an allegation and cannot be posed as a foregone conclusion.

Wisdom lies, I believe, not in abrogating our judgment and reasoning capability to the baying mass that is a cohort of self-appointed legal analysts who have never seen the door of a law lecture room.  As journalists play a significant role, which comes with huge responsibility in shaping public opinion, they should be cautious not to run the risk of overreaching in matters of law they know little, if anything, about. There is much virtue in seeking at least a couple of opinions from those trained in the discipline before launching headlong into a definitive lay opinion piece about complex matters of law.

The Rogue Unit Judgment That Never Was

Here is a most recent example of such overreach. In the rogue unit (or investigative unit) skirmish between the Public Protector and the Minister of Public Enterprises a view that the SARS rogue unit is lawful (despite prima facie evidence to the contrary) has now been put forward by a journalist based on a recent judgment in Wingate-Pearse v SARS. This is being put forward as definitive authority for that proposition.

On a close reading of the Judgment, however, it is not.

(I pause here to point out that I refer to the unit as the rogue unit because that is the generally used term.)

There is a clear distinction between the concepts obiter dictum and ratio decidendi in a court judgment. In short, at its most basic definition an obiter dictum is an observation that a judge makes in a judgment but which is not necessary for purposes of the order ultimately made in that judgment. A ratio decidendi is the basis for the order made in the judgment.

An obiter dictum is not binding on lower courts or tribunals but may have persuasive value. A ratio decidendi is binding on lower courts and tribunals. It is also binding on courts of similar status unless the later court is satisfied, in a reasoned judgment, that the earlier judgment is clearly wrong.

Thus, when I read an article such as the one titled “Rogue Unit” ‘lawful’: High Court judgment bolsters Pravin Gordhan’s case against Public Protector, where it is pronounced that the Wingate-Pearse judgment confirms that the rogue unit is lawful, that it must be relied upon by the court now seized with the Minister’s application to interdict and set aside the Public Protector’s report in which she found that the rogue unit is unlawful, and so the Public Protector will lose that case, I cringe.

It is clear to me that the author has not sought legal opinion on a proper reading and interpretation of the judgment on which she relies for her pronouncement. Any lawyer worthy of their robes who has read the judgment will likely find that the judgment does not say what the article purports it says.

But, lawyers being lawyers, there may still be differences of opinion (whether genuine or by design is often difficult to tell) about which aspects of the Judgment constitute obiter dicta. Where there is a will to reach a particular preconceived conclusion in this fractious debate about the lawfulness of this rogue unit, people have shown creative ways of getting there, whatever the facts. Ultimately, it seems to me that only the highest court may finally settle the debate – the sooner the better for us all.

Nowhere, whether in the order or in the text of the judgment itself, does the Johannesburg high court in Wingate-Pearse in fact say the rogue unit was lawful. The journalist appears to have lifted one paragraph, from a 41-page judgment of 87 paragraphs, as authority for the proposition that Judge Meyer found that there was no factual basis for saying there existed a rogue unit within SARS. The paragraph appears under the rubric “Material Disputes of Fact”.

But in that paragraph all Judge Meyer does is relate the Nugent Commission’s “findings” on the issue and Judge Kroon’s evidence before that Commission. Judge Meyer characterises those observations as “findings”. It is not immediately clear how these can be “findings” when Justice Nugent did not investigate the matter. But nowhere does Judge Meyer say he agrees with those “findings”. And nowhere does he make an order to that effect. That renders Judge Meyer’s observations themselves obiter dicta.

In fact, it can arguably be said that the ratio decidendi on this aspect of the case is that the rogue unit was established long after SARS had investigated Mr Wingate-Pearse’s tax affairs, and that it was not at all involved in that investigation. This comes in the very next paragraph lifted by the journalist.

The case concerns an additional assessment for income tax on Mr Wingate-Pearse who was accused of having under-declared his income. Part of his multi-pronged defence was that he had been subjected to unlawful search and seizure operations and unlawful interceptions by an unlawful rogue unit. This is what prompted the Judge to quote from the Nugent Commission report which had been introduced by SARS. He did not say he shares those observations.

The ratio decidendi of the judgment is this:

  • Because Mr Wingate-Pearse did not dispute material factual allegations made by SARS in its affidavits, the Judge had no choice but to accept the SARS version of facts and dismiss Wingate-Pearse’s version and, with that, his application too (this is known as the Plascon-Evans rule);
  • Mr Wingate-Pearse argued that if his prayer 1 for a declaratory order that the rogue unit was unlawful was granted, that would mean that any information obtained by that unit could not be used against him (a so-called “poisoned tree defence”). The Judge said, rightly and with reference to a 1996 Constitutional Court decision, that this is a legally flawed point of departure because it is for the trial court (the Tax Court) to make a determination on whether or not to admit into evidence fruits of a poisoned tree, even if it were to find in his favour. That was the end of that prayer. It was disposed of in 3 paragraphs. The Judge did not rule on the lawfulness or otherwise of the rogue unit because he did not have to do so in light of this finding.
  • As regards the factual disputes about the SARS calculations of Mr Wingate-Pearse’s tax liability, the Judge said, again rightly, this is an issue for the Tax Court to determine as a specialist court.

Everything else is obiter dicta.

The Takeaway

So, it would seem that the article is (wittingly or unwittingly) misleading. This worries me, because too often South Africans rely very heavily on the media as the source of their information. Journalists carry the heavy burden of ensuring that they protect the interest of the public by highlighting the truth and in the process ensuring that they themselves do not deceive, whether by design or out of incompetence.

It is therefore incumbent on journalists to ensure that, when their subject matter relates to a point of law, they must do proper research, otherwise they could tread on dangerous ground and lead the public down the wrong path.

In this case people may now expect – on the assumption that the journalist was right – that the high court seized with the application of the Minister of Public Enterprises against the Public Protector on the latter’s findings and remedial action in relation to the rogue unit must, of necessity, make orders in favour of the Minister because (as the journalist has said) the high court has already found that the rogue unit was lawful.  If that does not happen, the public is then likely to feel that the judiciary is “captured”.

This has already happened in the recent past when another journalist publicly deprecated two Judges of the Supreme Court of Appeal who formed part of the majority (in a 5-panel Bench) for rendering a judgment (in relation to two senior public prosecutors) that departed from the script the journalist had already scripted. This prompted followers of the journalist on social media to join the fray lambasting the judges not so much for their reasoning as for their unpopular conclusion. They wanted to see blood. The judges did not give them blood. So, they concluded the judges are “captured”.

This is dangerous ground and a slippery slope to lawlessness where judges are trusted only if they deliver judgments as expected by opinion makers.

We dare not go there and, dare I say, Journalists stand between us and that otherwise certain reality.

By |2019-07-19T12:25:30+02:00Jul 19th, 2019|Blog, General, News|6 Comments

The Sub Judice Rule: A Glimpse into the Position in Today’s South Africa?

What did he know and when did he know it? That is the question that confronted then Deputy President, Cyril Ramaphosa, in Parliament in 2015. It is a question that US President Richard Nixon chose not to answer, rather than face impeachment.  He resigned instead.

The allegation was that President Nixon had stolen (or caused to be stolen) audio tapes of his telephone conversations with various insalubrious characters because those tapes implicated him in unlawful conduct. That was June 1973 in Washington.

A little shy of 42 years later, the same question was put to then Deputy President Ramaphosa inside the parliamentary chamber in Cape Town. It related to the unexplained presence of a signal jamming device in the parliamentary chamber that reportedly made it impossible for journalists to post parliamentary news on social media platforms and elsewhere in the performance of their constitutional role. He, too, performed a deft toyi-toyi around the question and invoked an Aunt Sally in the form and shape of the sub-judice rule.

The then Deputy President had not been asked to pronounce on the merits of the use of signal jamming devices in the parliamentary chamber. In other words, he had not been asked to pronounce on the lawfulness of such use. That question was at the time still being considered by the Western Cape High Court.

The High Court subsequently ruled on the merits question and the matter then served before the Supreme Court of Appeal.

Now that the Supreme Court of Appeal has ruled on the unlawfulness and unconstitutionality of the signal jamming, in September 2016 in Primedia (Pty) Ltd and Others v Speaker of the National Assembly and Others 2017 (1) SA 517 (SCA), he to whom the questions of fact were posed has still not answered them.

Fast forward to 2018 and, by then President of the country, he invoked the sub judice rule again in the parliamentary chamber when asked about the future of the then National Director of Public Prosecutions and the appointment of Mr Arthur Fraser at Correctional Services.

Declining to answer the question put to him in Parliament on 25 July 2019, the new Deputy President also invoked the rule when asked about the lawfulness of the investigation unit (also known as the rogue unit) that was established within the South African Revenue Service (the tax collection agency in South Africa) in 2007. That question is reportedly the subject of court proceedings. Opposition parties, citing the need for accountability, objected to the Deputy President’s refusal to answer the question.

But was Deputy President Mabuza correct in declining to answer the merit question about the lawfulness of the establishment of the rogue unit? Does his defence lie in the sub judice rule?

The rule has been invoked by a number of politicians, one could argue, when it appears to suit their purpose at the time. It is difficult to miss the clear pattern. They seem to invoke the rule when a question cuts too close to the bone, but when it is convenient – perhaps with a view to swaying public opinion in their favour – they have no qualms pronouncing on matters that are the subject of litigation. One example is the numerous tousled engagements between the Executive and the Public Protector.

Sub judice is the thin veil of choice by politicians when faced with awkward questions about things they have done or said which are the subject of a court case. It is a source of frustration to many journalists keen on an angle.

But what is the sub judice rule, really?

Of all legal defences known to Man, the sub judice rule is probably the most abused in South Africa. A relic of the trial-by-jury system, it was intended to serve as a shield for juries from possible improper influence of extra-judicial comments about the case on which they would soon deliberate and render a verdict. Thus, juries would be forbidden from talking to anyone outside their number about the case, lest they be improperly influenced.

Hence sub judice or “still under juridical consideration”.

But in South Africa there is no danger of a jury being improperly influenced by the loud factual musings of a Deputy President about a signal jamming device inside the parliamentary chamber, or of a President about the factual details as regards the future of a prosecutor or correctional service commissioner.

Here we have people called Judges to deliberate on these things. Our law affords them the presumption of impartiality, and the Constitution that safeguards their independence. In other words, Judges are presumed to be impartial and not susceptible to undue influence by media reports of what happened inside or outside the parliamentary chamber. It is, of course, a rebuttable presumption. But the point is it is generally accepted that Judges – trained in the discipline of weighing up relevant facts and applying relevant law to those facts based on sound legal principles – generally do not require the quarantine from the outside world to which lay people need be subjected during the hearing of a case.

In any event, what is said in the parliamentary chamber, stays in the parliamentary chamber. It is privileged and cannot be used to hoist a Deputy President by his own petard in subsequent court proceedings.

In short, the sub judice rule does not serve as protection from accountability or the obligation to answer awkward questions in South Africa. Here, section 195 of the Constitution places a constitutional obligation on public servants – which includes Members of Parliament, the President, Deputy President and all cabinet ministers – to be “accountable” and “transparent . . . by providing the public with timely, accessible and accurate information”.

Often the decision of the Supreme Court of Appeal in Midi Television (Pty) Ltd t/a E—TV v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) is cited for the proposition that the rule does not prohibit fair and accurate reporting of factual content of ongoing judicial proceedings by the media, as long as the report does not usurp the court’s role by prejudging the case or the legal issues involved. The SCA said:

“[12] . . . If the rule of law is itself eroded through compromising the integrity of the judicial process then all constitutional rights and freedoms – including the freedom of the press – are also compromised.

[13] The exercise of press freedom has the potential to cause prejudice to the administration of justice in various ways – it is prejudicial to prejudge issues that are under judicial consideration, it is prejudicial if trials are conducted through the media, it is prejudicial to bring improper pressure to bear on witnesses or judicial officers. . .”

But the Court was not there dealing with the sub judice rule. The case was about an interdict to stop the television broadcast of a documentary that the prosecuting authority felt might prejudice the administration of justice in a pending trial. The SCA articulated the standard as follows:

“In summary, a publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage.”

So, the sub judice rule does not seem to enter into the equation at all. In other words, prejudice caused to the administration of justice can be demonstrable and substantial whether publication or pronouncements are made in relation to an issue before court proceedings begin or while they are underway. It is not the timing of the pronouncement or publication that matters; it is rather the real risk that demonstrable and substantial prejudice may be caused to the administration of justice.

For example, articles have been published which, it may be argued, pronounce on the outcome of the “rogue unit” case in which a cabinet minister has challenged the Public Protector’s findings that the establishment of an investigation unit (also known as the rogue unit) within the South African Revenue Service (the tax collection agency) was unlawful. That case is currently before the courts. Yet, at least one journalist, invoking obiter dicta remarks (remarks that carry no binding legal significance) in a recent judgment of the Johannesburg High Court for the proposition that establishment of the SARS investigation unit in 2007 was not unlawful, has now plainly pronounced on the outcome of the pending case in which that very question is to be determined.

But that is not an instance of the breach of the sub judice rule. It is rather an example of demonstrable and substantial prejudice that such pronouncement may cause to the administration of justice. It matters less that the journalist entered the judicial fray while a court case is pending on that very issue. Of significance is that by her pronouncement she runs the real risk that demonstrable and substantial prejudice may be caused to the administration of justice. How? Because the public (87% of whom, the Chief Justice tells us, instinctively believe what they read in newspapers without question according to a study by the German and American intelligence agencies) will expect the outcome as prejudged by the journalist. If the outcome is different, there is a real risk that the public may start believing that the judiciary (or the legal system) is “captured”.

Therein lies the prejudice to the administration of justice, and that has nothing to do with the sub judice rule.

Another example – this time before legal proceedings have been launched – is the President’s pronouncement last Sunday evening (on 21 July 2019) that the Public Protector’s Report, that he tells us he will be challenging in court, is “fundamentally and irretrievably flawed”. The public has seen and heard that pronouncement. No doubt the judges who will hear the President’s challenge have too. What is the average citizen to expect of the judge hearing the case then?

Some among us will flippantly assert that there is nothing wrong with “a litigant expressing a view” on the prospects of success of his court challenge openly in public. But is it that simple? This is a President we are talking about, not an ordinary citizen. He appoints Judges. He has been portrayed generally in the media as “cleaning up” the state of corruption. Anyone who seeks to hold him to account is generally portrayed as standing in the way of the President’s efforts to clean up. Now he stands before the nation telling us, and the judge who will be assigned to hear his challenge, what the outcome of his application must be. And a Full Bench has recently elevated the President’s political campaign slogan, “New Dawn”, to the annals of South African jurisprudence.

In light of all these objective facts, can it genuinely be believed by an objective observer that the President’s pronouncement poses no real risk of demonstrable and substantial prejudice whatsoever to the administration of justice? Again, the sub judice rule has nothing to do with this inquiry. There was no court case that had been filed when the President made the pronouncement. But does that make any difference whatsoever to the real risk posed by the pronouncement to the administration of justice?

Judicial independence and the presumption of judicial impartiality ought to dispose of any apprehension that Judges may be swayed by the President’s announcement last Sunday – 21 July 2019 – in these terms. But then the Full Bench of the Pretoria High Court did not seem prepared to run that risk when it ordered that the former President was not to appoint the Judge who would chair the “State Capture” commission because, said the court, he was conflicted.

From this, a number of awkward questions arise. Was that not a reflection more on the independence and inherent impartiality of the Judge than on the character of he who ordinarily appoints commission chairs? Put differently, what else could the Full Bench have feared, in making the order that it did, than suspicion that the former President might appoint a malleable Judge? Is that fear itself not an indictment on judicial independence and inherent impartiality?

If the idea in Midi Television (which has been followed in numerous subsequent judgments, including the Constitutional Court) is to prevent the usurpation of the court’s role which happens when prejudging the case or the legal issues involved, did the President not do just that when he told South Africa that the Report he was about to challenge is “fundamentally and irretrievably flawed”? Is that not a breach of the Midi Television standard?

Is Deputy President Mabuza on firm ground when refusing to answer a question on the lawfulness of an investigation unit, a question that is currently before court? In my view, yes. But does the basis for his refusal lie in the sub judice rule? In my view, no. On a proper reading of the Midi Television judgment, it seems to me the Deputy President’s justification may lie in his caution not to run the real risk of demonstrably and substantially prejudicing the administration of justice by pronouncing on the merits of an issue that is yet to be determined by the courts, especially when that process has already commenced.

So, if politicians play fast and loose with a rule of ancient origin intended for lay people in a jury system, and journalists honour it in its breach, what legal certainty does the sub judice rule provide? Has the time not come for the courts to say, as the appeal court said about another anachronistic relic many years ago, “requiescat in pace!” (rest in peace) to the sub judice rule, thereby paving a clear path to true accountability?

By |2019-07-26T15:06:47+02:00Jun 14th, 2019|Blog, General|1 Comment

The 2019 South African Cabinet Affair: Is the Constitution at Risk?

On Wednesday 29 May 2019, the South African President Ramaphosa announced his cabinet. Among the people he announced as part of his cabinet were Mr Pravin Gordhan (Mr Gordhan) and Mr Fikile Mbalula (Mr Mbalula).

PENSIONGATE

A week previously, on Friday 24 May 2019, the Office of the Public Protector had released a report in which it found that Mr Gordhan had “failed to uphold” and to “act in accordance with the [South African] Constitution”. This conclusion resulted from a finding by the Office of the Public Protector that Mr Gordhan had – while Minister of Finance in 2010 – approved early retirement, with full benefits, for a 55 year old senior civil servant and, at the same time, approved that civil servant’s continued remunerated appointment in the same position without a break in service.

The Office of the Public Protector took the view that on the facts presented to it, “there was no retirement in fact and in law”, and so the civil servant “was not entitled to early retirement with full benefits”. It concluded in the report that Mr Gordhan was not authorised by applicable legislation to approve the early retirement and the re-appointment of the civil servant. It found that the arrangement was “contrived and not lawful”.

By way of remedial action in terms of the powers conferred on it by section 182(1)(c) of the South African Constitution, the Office of the Public Protector directed that the President

“take appropriate disciplinary action against [Mr Gordhan] for failing to uphold the values and principles of public administration entrenched in section 195 of the Constitution, and the duty conferred on Members of the Cabinet in terms of section 92(3)(a) of the Constitution to act in accordance with the Constitution”

For convenience and ease of reference I shall refer to this matter as “Pensiongate”.

On Tuesday 28 May 2019 – the day before the President announced his cabinet – Mr Gordhan launched an application in the High Court challenging the jurisdiction (or power) of the Office of the Public Protector to investigate Pensiongate.

He also wants the High Court to declare that the Office of the Public Protector has acted not only in contravention of the Public Protector Act but also in contravention of the Constitution itself. In addition to seeking a costs order against anyone who may dare oppose his application, he also wants the High Court to order the Public Protector herself to pay costs of his application from her own pocket and on a punitive scale.

In short, Mr Gordhan wants the High Court to set aside the report of the Office of the Public Protector as being “unconstitutional, unlawful, irrational and invalid”.

DUBAIGATE

On 19 December 2018, the Office of the Public Protector released a report in which it found that Mr Mbalula had acted in contravention of the Executive Members Ethics Code and the South African Constitution.

This conclusion resulted from a finding that Mr Mbalula had – while Minister of Sports – taken a holiday to Dubai with his family which was funded by a company that at that time did business with a sporting federation (SASCOC) that fell under the auspices of Mr Mbalula’s department and so constituted a conflict of interest on his part.

No remedial action was taken against Mr Mbalula by the Office of the Public Protector. Nevertheless, he threatened to challenge the report in the High Court. It is not clear whether or not he did.

THE LAW

In numerous interviews, attorneys for Mr Gordhan have consistently expressed the view that the report of the Office of the Public Protector has no legal effect (in other words, it is suspended) because Mr Gordhan has launched review proceedings to have it set aside. This view has been repeated by various analysts and reported, with apparent approval, by almost all journalists on the story.

But this view does not seem to accord with what the courts have said. It is the only issue that is dealt with in this discussion.

The merits of the review application will not be discussed here.

But before we get to what the courts have said about the status of the report of the Office of the Public Protector, it is important to distinguish between two court processes, namely, an appeal and a review.

Difference Between Appeals and Reviews

This is a complex subject but I shall try to simplify it.

In an appeal, the appellant challenges the correctness in law of the decision of the lower court or tribunal. In other words, the appellant wants the higher court or tribunal to reverse the decision on the ground that the decision is wrong in law.

In terms of the Rules of the High Court, and now also in terms of the Superior Courts Act of 2013, once the appellant has given notice to the respondent that he intends challenging the decision on appeal, the decision appealed against is automatically suspended, unless the respondent brings an application for an order that the decision is not suspended, and that order is granted.

This makes perfect sense in law and logic because giving effect to a decision which is subsequently set aside as being wrong in law would bring the rule of law into disrepute.

Different considerations, however, apply where a decision is challenged by way of review. The question on review is not whether or not the decision is wrong in law or on a legal point. That is not the function of a review court. South African courts have said this.

This consideration may easily be confused – perhaps by non-lawyers – with some grounds of review under the Promotion of Administrative Justice Act, 2000 (PAJA), on the one hand, and grounds of review under the legality principle, on the other, which seem, on the face of it, to look into the correctness of a decision in law.

Under PAJA and legality review, it is the “action” or “conduct” or decision to do something (or not to do something) that is in issue. In an appeal, it is the decision (as in judgment or ruling) itself or the legal basis for the decision (as in judgment or ruling) itself that is in issue. In other words, a decision by a court or tribunal that an application for review of the report, even before it has been decided one way or another, suspends the report and its legal effect, is as a ruling either correct in law or it is not, and so is susceptible to appeal to a higher court or tribunal. But a decision of the decision-maker that is attacked on the basis that she has misdirected herself in law, or applied the wrong principle in arriving at her decision, or conducted herself unconstitutionally, goes to the conduct as informed by the misdirection or wrong principle and so is susceptible to review, not appeal.

In short, an appeal is concerned with whether the decision (as in ruling or judgment) is right or wrong in law. A review application is concerned with whether the decision is justified or not, or vitiated by some irregularity causing actual prejudice. In addition, South African courts have said that a review application cannot succeed unless the applicant can show that he has suffered actual prejudice. In an appeal, the decision being challenged will be reversed if it is found to be wrong in law, whether or not there is prejudice to the appellant.

Does a Review Application Suspend the Decision?

When a person is aggrieved by a decision on any of the recognised grounds of review – whether under PAJA or legality principle – and he wants to suspend the decision from taking effect until the review application has been finally decided one way or another, he usually brings an application in two parts but in the same papers.

“Part A” is usually an application for an interim interdict in which the applicant asks the court to suspend operation of the decision against him or, if implementation of the decision is already underway, to suspend further implementation until “Part B” (the review application) of the application has been decided.

“Part A”, seeking to interdict implementation of the decision, is usually sought on an urgent or semi-urgent basis. In that case the applicant will have to satisfy the court that because implementation of the decision is imminent, or has already commenced, he will not obtain substantial remedy in due course if the court does not stop the process of implementation now. He does that by way of interim interdict, not review. If the interim interdict is granted, then implementation of the decision will be suspended until the Part B review has been decided one way or another.

In order to secure the interim interdict, and so the suspension of the decision, the applicant will have to satisfy all four requirements for an interim interdict. But, even if he does, the court still has a discretion nevertheless to refuse the interdict if it considers it in the interests of justice to do so.

So, the “Part B” review application seeks to set aside the decision on the recognised grounds of review. That is all it does. It does not suspend implementation of the decision. It is the “Part A” interim interdict that does that. Thus, to those people who say it is ludicrous to implement a decision that may be set aside on review, this is your answer.

Two of the important requirements for an interim interdict are (1) that the balance of convenience favours the granting of the interdict than not granting it because of the (2) apprehension of irreparable harm that may be occasioned if the court should refuse to grant it now. These requirements are intended to address precisely the sort of concern that has been raised about the President implementing the remedial action taken by the Office of the Public Protector only for it to be set aside by the High Court by which time the person to whom the remedial action relates has been subjected to what by then is found to be unlawful or irrational or invalid or unconstitutional.

But Mr Gordhan has not asked the court for an interim interdict. That was his choice. He has simply asked the court to review the report and set it aside. So the protection of an interdict described immediately above is not available to him. There are a number of court judgments, including the Constitutional Court, that say a court cannot validly grant orders that the applicant has not asked for.

But what do the courts say about the legal effect of the report or remedial action of the Office of the Public Protector before it has been set aside by a court? This question can be answered with reference to three judgments. There are more but let us confine ourselves to these three.

In Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) the Supreme Court of Appeal said:

“But the question that arises is what consequences follow from the conclusion that the Administrator acted unlawfully.  Is the permission that was granted by the Administrator simply to be disregarded as if it had never existed?  In other words, was the Cape Metropolitan Council entitled to disregard the Administrator’s approval and all its consequences merely because it believed that they were invalid provided that its belief was correct?  In our view it was not.  Until the Administrator’s approval (and thus also the consequences of the approval) is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked. The proper functioning of a modern state would be considerably compromised if all administrative acts could be given effect to or ignored depending upon the view the subject takes of the validity of the act in question.  No doubt it is for this reason that our law has always recognized that even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside.”

So, even if the decision of the Office of the Public Protector is unlawful, it is binding and has legal effect until it has been set aside by a court in review proceedings. It cannot be ignored just because the person affected by it takes the view that it is unlawful or unconstitutional or irrational or invalid.

Just over a decade after the Oudekraal judgment, the Supreme Court of Appeal again reinforced the principle, this time in relation to a decision of the Office of the Public Protector.

So, in SABC v DA 2016 (2) SA 522 (SCA), the SCA said:

 “[I]t is well settled in our law that until a decision is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked (Oudekraal Estates (Pty) Ltd v City of Cape Town & others [2004] ZASCA 48; 2004 (6) SA 222 (SCA) para 26). It was submitted, however, that that principle applies only to the decision of an administrative functionary or body, which the Public Protector is not. It suffices for present purposes to state that if such a principle finds application to the decisions of an administrative functionary then, given the unique position that the Public Protector occupies in our constitutional order, it must apply with at least equal or perhaps even greater force to the decisions finally arrived at by that institution. After all, the rationale for the principle in the administrative law context (namely, that the proper functioning of a modern State would be considerably compromised if an administrative act could be given effect to or ignored depending upon the view the subject takes of the validity of the act in question (Oudekraal para 26)), would at least apply as much to the institution of the Public Protector and to the conclusions contained in her published reports.”

That same year, in EFF v Speaker of the National Assembly and Others 2016 (3) SA 580 (CC), the Constitutional Court, no less, said the following in relation to the status of the remedial action of the Office of the Public Protector and about the only means by which its sting can be avoided:

 “[O]ur constitutional order hinges also on the rule of law.  No decision grounded on the Constitution or law may be disregarded without recourse to a court of law.  To do otherwise would “amount to a licence to self-help”.  Whether the Public Protector’s decisions amount to administrative action or not, the disregard for remedial action by those adversely affected by it, amounts to taking the law into their own hands and is illegal.  No binding and constitutionally or statutorily sourced decision may be disregarded willy-nilly.  It has legal consequences and must be complied with or acted upon.  To achieve the opposite outcome lawfully, an order of court would have to be obtained.”

So, in order to avoid the legal consequences of the remedial action of the Office of the Public Protector “an order of court would have to be obtained”. The Constitutional Court did not say the launching of a review application avoids the legal consequences of the remedial action of the Office of the Public Protector. It said in order to achieve that result, an order of court would have to be obtained.

Mr Gordhan has not obtained an order of court. He has simply filed an application for review. He has not obtained an interdict. He has not yet obtained an order reviewing and setting aside the report of the Office of the Public Protector.

Neither has Mr Mbalula although no remedial action was taken in relation to him.

So, what now? The President has been directed by the Office of the Public Protector to

“take appropriate disciplinary action against [Mr Gordhan] for failing to uphold the values and principles of public administration entrenched in section 195 of the Constitution, and the duty conferred on Members of the Cabinet in terms of section 92(3)(a) of the Constitution to act in accordance with the Constitution”

The President has not indicated what disciplinary action he has taken against Mr Gordhan (at least not at the time of writing this blog). The Office of the Public Protector is an important institution established in order to “strengthen constitutional democracy in the Republic”. Its decision may not be ignored willy-nilly, especially by the first citizen whom the Constitutional Court has described in these terms:

 “The President is the Head of State and Head of the national Executive.  His is indeed the highest calling to the highest office in the land.  He is the first citizen of this country and occupies a position indispensable for the effective governance of our democratic country.  Only upon him has the constitutional obligation to uphold, defend and respect the Constitution as the supreme law of the Republic been expressly imposed.  The promotion of national unity and reconciliation falls squarely on his shoulders.  As does the maintenance of orderliness, peace, stability and devotion to the well-being of the Republic and all of its people.  Whoever and whatever poses a threat to our sovereignty, peace and prosperity he must fight.  To him is the executive authority of the entire Republic primarily entrusted.  He initiates and gives the final stamp of approval to all national legislation.  And almost all the key role players in the realisation of our constitutional vision and the aspirations of all our people are appointed and may ultimately be removed by him.  Unsurprisingly, the nation pins its hopes on him to steer the country in the right direction and accelerate our journey towards a peaceful, just and prosperous destination, that all other progress-driven nations strive towards on a daily basis.  He is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of State affairs and the personification of this nation’s constitutional project.”

By not implementing the remedial action of the Office of the Public Protector, in the absence of an order of court by which the legal effect of the remedial action can lawfully be avoided, has the President not thereby contravened the very Constitution he has taken an oath to uphold?

Assuming the President simply “reprimands” Mr Gordhan as a form of giving effect to the remedial action, is that substantive compliance with the remedial action? Is that an effective remedy for what the Office of the Public Protector (a Constitutional institution charged with “strengthen[ing] constitutional  democracy in the Republic”) has found to be contravention of the Constitution itself? What message would that send about the President’s commitment to the Constitution and its values?

Often the argument advanced for ignoring the remedial action of the Office of the Public Protector is that the head of that Office has been found in two High Court judgments to be “incompetent”. While that is a ground for removal of the Public Protector from Office by a majority of two-thirds of the members of the National Assembly, does a finding of a court (which does not have the power to remove the Public Protector from Office) justify the President ignoring the decisions of the Office?

Also, what seems lost in the personalisation of the Office of the Public Protector is that this is an institution established in terms of the Apex Law of the country (the Constitution) by national legislation. It is not its incumbent head anymore than “the Presidency” is the President.

We have a popular President (if mainstream media reports and opinion pieces are an accurate indication) and an even more popular Minister in Mr Gordhan. Some may raise a concern, not without justification, whether the Rule of Law in South Africa today is driven by media popularity.

But there may be hope still that the courts are immune to being swept up in the strong pop culture currents. The Chief Justice has cautioned against judges sacrificing justice at the altar of public opinion. Whether or not any one of the many civic organisations in the country will, for the sake of constitutional certainty, dare ask the courts to decide whether the President’s conduct is an attack on the Constitution will be the measure of society’s own commitment to it.

By |2019-05-31T13:48:53+02:00May 30th, 2019|Blog, General, News|8 Comments