he 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.
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”
“[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”
“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.”
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.