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

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

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.

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?

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.