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 1^st 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 1^st 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

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