Esau & Others v COGTA Minister & Others: A Summary of the Judgment (26 June 2020)
On Monday 15 June 2020, the Western Cape High Court in Cape Town, South Africa, heard argument in a challenge by 5 university students, a civil servant, a media intern and a data analyst-cum-researcher against the provenance of the National Coronavirus Command Council (the NCCC) and the regulations and directions promulgated, ostensibly, in terms of the Disaster Management Act, 2002 (the DMA).
This took incredible courage on the part of a broad racial and gender mix of young people in 2020 South Africa, reminiscent of the courage of the 16 June 1976 youth who confronted the full might of the apartheid state and paid a heavy – and some the ultimate – price for principle, almost exactly 44 years ago to the day. This is what makes this case special for me. It is why I took it on without charge. It is why I am writing about it.
The courageous youth 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
Whatever the ultimate outcome of their courageous challenge, may their names be forever etched in South Africa’s legal history for posterity.
On Friday 26 June 2020, the court dismissed the challenge on all fronts in an 84-page judgment. It ordered that each party pays its own costs. The reason given for this costs order is that the applicants cast a wide net challenge, and the government made a few concessions in relation to the “confusion caused by statements on the role and powers of the NCCC” [para 259]. An unusual standard.
This is a summary of the Judgment not an analysis.
The summary of the Argument on behalf of each party is available here together with all the court papers. But, for your convenience, I recap the summary of the parties’ argument after giving a summary of the judgment.
Summary of Judgment
Short editorial comments are unavoidable in this summary. These are provided where necessary, and they do not constitute an analysis of the judgment.
I, together with 2 colleagues, represented the 8th applicant, Mr Dlamini, in the application. So, commentary is kept to the barest minimum and no analysis of the judgment is embarked upon.
With that foundation, let us now focus on the summary of the judgment, with some editorial comments. The link to the Full Judgment is at the end.
As regards trade or clothing directions, the court says the objective of preventing price-fixing and the concomitant unfair competition is authorised by regulation 4(6) and is not inconsistent with the DMA [paras 49 to 51].
[Except, the Trade Minister said in his sworn affidavit he issued his trade directions under regulation 4(10), not 4(6)]
As regards the nature of the NCCC, the court says nowhere in the papers does the COGTA Minister say the NCCC is Cabinet [para 68].
[Except, the applicants did not advance this argument. They said her counsel advanced this argument on her behalf in their written submissions [paras 28.2 & 28.3 of Cogta Heads]]
As regards establishment of the NCCC, the court says
- this is a function of Cabinet organising itself into committees for which it does not require a law. Section 101 of the Constitution says the President must make decisions in writing if such decisions are made in terms of legislation or have legal consequences. But the President does not have to reduce to writing the establishment of the NCCC even though its decisions have legal consequences [paras 84, 85 & 88].
- the applicants have not provided any evidence to contradict the averment that the NCCC is merely a Cabinet committee established to deal specifically with covid-19 [para 86].
[Except, this is something that is peculiarly within the knowledge of government.]
As regards the applicants’ formal request for the production of documents, records, transcripts and minutes of meetings on which the COGTA Minister relies for the establishment of the NCCC and for the decisions taken at those meetings in relation to covid-19,
- the court says these are privileged and cites s 12 of PAIA (Promotion of Access to Information Act) [para 90].
[Except, Mr Dlamini did not seek these documents under PAIA; he did so in terms of the High Court Rules on the basis that if the court is to assess the truth or veracity of government’s claims, it must have access to the documents on which government relies for its probative value and not just on the word of the Minister.]
- the court cites SARFU 2000 (1) SA 1 (CC) at para 243 for the proposition that Cabinet minutes are confidential [para 91].
[Except, the Constitutional Court also said, in the same paragraph cited by the court, “unless the interests of justice clearly demand”.]
- the court says “[w]hen the Minister asserts that minutes of Cabinet meetings as well as those of its committees including the NCCC are confidential, there is nothing sinister or un-transparent about it … [as] confidentiality is the mechanism by which Cabinet protects the integrity of its discussions” [paras 93 & 94].
As regards the decisions of the NCCC, the court says they do not have legal consequences because they are subject to acceptance, rejection or modification by Cabinet or individual Ministers [para 96].
[Except the facts, taken as a whole, provide a different picture.]
As regards whether the NCCC usurped the powers of the National Disaster Management Centre, the court says
- the Centre was not meant to take over Cabinet functions in the event of a national disaster [para 101].
[Except, the applicants did not make this argument]
- there is no basis for the conclusion that the NCCC unlawfully usurped the powers of the Centre [para 112]
As regards grounds of review,
- the court cites New Clicks 2006 (2) SA 311 (CC), para 126 for the proposition that the making of regulations under an empowering Act constitutes administrative action [para 121]
- but the court does not say this. Instead it cites New Clicks for a different proposition regarding procedural fairness and reasonableness, and then concludes this section with references to the COGTA Minister having to balance the saving of lives with the preservation of dignity in the regulation-making process [paras 123 & 124]
As regards mootness – that the determination of the application will have no practical effect – the court says, except for the clothing directions that the trade Minister withdrew in June 2020, the determination of the lawfulness of other regulations is not moot [para 128].
[Except, the government’s legal team left the door open for those clothing directions to come back if the country were to revert to level 4 [para 6 of government heads]]
As regards the public participating process, the court says
- the DMA does not require a public participation process before the issuing of regulations [para 161]
- even if the regulations were issued without public participation, the Minister is dealing with a crisis and is in any event accountable to parliament [para 164]
- the Minister also had to issue regulations urgently and that explains the truncated public participation process [para 166]
- the requirement in s 59(4) of the DMA that the Minister makes the regulations available to the National Council of Provinces for adoption is also a form of public participation process [para 165]
- it is not for a court to prescribe to the national executive just how truncated the public participation process should be in the regulation-making process [para 171]
As regards the object of the regulations, the court says
- absent any evidence of the existence of less restrictive means of slowing the spread of covid-19, the court cannot interfere with the discretion of the Minister in achieving that objective [para 172]. [Except the applicants did provide such less restrictive means but the Minister dismissed them simply as “inadequate”]
- section 126(2) of the DMA “notionally is broad enough to intrude upon existing legislation … in a disaster situation” [para 175]
- the primary objective of the regulations is to save lives and health [paras 178 & 179]
As regards the lawfulness, constitutionality and validity of the impugned regulations, the court says
- regulation 4(6) [which deals with the issuing of directions to protect consumers from predatory pricing of goods and services during national disaster and other competition issues] and regulation 4(10)(a) [which deals with the issuing of directions concerning the dissemination of information during the national disaster] are interrelated and cannot be separated as they are both aimed at dealing with the spread of covid-19 [para 196].
[Except, the Trade Minister said, expressly, in his sworn affidavit he did not issue his trade directions in terms of regulation 4(6) but rather in terms of regulation 4(10)(a)]
- the clothing directions arose as a result of the national disaster. The dissemination of information in respect of the winter clothing is within the Trade Minister’s powers and so cannot be ultra vires (beyond the scope of) the DMA [para 197].
[Except this does not address the applicants’ argument that the Trade Minister relied not on regulation 4(6) but on regulation 4(10)(a) which says nothing about protecting consumers from unfair pricing and other competition issues.]
- In any event the clothing directions were withdrawn on 11 June 2020 and so are of no force and effect [para 198].
[Except the government’s legal team told the court that new directions will be determined according to requirements in the event of level 4 being reinstated, raising the possibility that these same directions could return.]
- Section 26(2)(b) of the DMA does not provide for the Minister to issue regulations that only augment existing legislation [para 200].
[Except the section does precisely that]
- to augment means “to widen and give more value to” [para 201].
As regards new matter in replying affidavit, the court says the applicants cannot for the first time in replying papers require the government to discharge an onus that its regulations do not amend existing legislation [para 205].
[Except this is a legal proposition, not a factual one, and is perfectly permissible in reply or even heads of argument which the government could have dealt with in written and oral argument]
As regards rationality, the court says
- there is a rational connection between the lockdown (confining people indoors) and containing the spread of covid-19 because that is the only known method [paras 219 & 220]
- a deceased person cannot talk, cough, sneeze, or spread covid-19 whereas a living person can and so that is why movement is permitted for attending funerals and not for visiting living people [paras 242 to 244].
[Except this misses the point of the objection entirely. The applicants’ point was the irrationality of permitting up to 50 people to attend a funeral but criminalise one person for visiting a dying relative]
The management of the disaster involves issues of high policy. It is not for the court to prescribe to government how it should exercise its mandate in those circumstances [para 255].
[Except, the applicants never asked the court to do that. In fact, their respective written submissions make this quite clear in the opening paragraphs]
The applicants want regulation 19, which suspends the execution of eviction orders, to be declared unlawful. It follows that the applicants want eviction orders to be executed during lockdown despite the devastating consequences of that during a pandemic [para 257].
[Except, this is not the argument made by the applicants. The point was that regulations cannot amend existing legislation as regulation 19 seeks to do.]
To recap, the summary of the parties’ argument included this:
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 said 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 pointed to regulation 2 of the 29 April 2020 regulations which lists repealed regulations 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.
They said in any event, a court cannot avoid dealing frontally with questions of legality and constitutionality. For this proposition reference was 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, the Esau team argued that a court has a discretion to deal even with issues that are moot: Pillay 2008 (1) SA 474 (CC), para 32.
They said 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 Esau team argued that 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.
The argued that s 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.
- As regards rationality, they said there is both procedural and substantive irrationality.
On procedural irrationality, the Esau team argued that 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.”
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 cases, 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 said s 85 does nothing of the sort. At best, s 85 confers a power on the executive to coordinate functions of state departments and administrations. It confers no power on a committee to do such coordination. For the NCCC to perform executive functions you need a delegation of executive power in terms of s 238 of the Constitution. But the President has told Parliament that there has been no such delegation of power to the NCCC. That’s really the end of that.
Counsel for the government say it is normal for Cabinet to establish committees. Yes, says the Dlamini team, but where is the law that confers on it the power to do that? Section 26(1) of the DMA, to which the government team now points belatedly, says nothing different from what s 85 of the Constitution says. It confers a power on the national executive to coordinate national disasters. It does not give the executive the power to form an amorphous outfit to usurp the powers of an existing Centre during an emergency or disaster.
The Dlamini team pointed to a number of examples where it says the NCCC has usurped the powers of the Centre. One such example was s 20(1)(a)(i) of the DMA which confers on the Centre the power of “determining levels of risk” in a disaster; yet on 20 April 2020 the COGTA Minister told Cabinet that the NCCC “determines level of alert for each province and district” which “can be imposed by the [NCCC] as necessary, and the President told the nation on 23 April 2020 that the NCCC “determined that the national coronavirus alert level will be lowered from level 5 to level 4 with effect from Friday the 1st of May”. The Dlamini team commended sections 15 to 23 of the DMA to the court for other examples.
- As regards the decision-making powers question, the COGTA Minister has given no less than 6 conflicting versions, ranging from: the NCCC has no decision-making powers whatsoever, to: the NCCC takes “what could be termed critical decisions” to: the NCCC takes decisions only when it sits as Cabinet.
Then, says the Dlamini team, in their written submissions Counsel for the government add 4 more versions, including that the NCCC makes policy decisions, and that the NCCC’s functions, actions and decisions are, in fact, Cabinet functions, actions and decisions.
The Dlamini team argued that the NCCC has no decision-making powers in law in relation to a national disaster. Not in the DMA; not in the Constitution. And the government has pointed to no legislation that confers such decision-making powers on the NCCC.
- As regards whether the NCCC has made any decisions, including policy decisions, the Dlamini team argued that the COGTA Minister and the President have given contradictory versions. But then their Counsel end the debate by making this submission in their written submissions:
“on some occasions, [the NCCC] is taking decisions relating to COVID-19, and on other occasions those are being escalated to formal Cabinet meetings. In either event, such decisions are decisions of Cabinet, and are constitutionally compliant”
In other words, says the Dlamni team, the NCCC decisions are Cabinet decisions and are therefore constitutionally compliant, according to Counsel for the government.
But since there is, on Counsel’s own argument, no constitutional or legislative provision conferring a power on the NCCC to make decisions relating to covid-19, these decisions are unlawful and must be set aside.
- As regards the mootness point – that determination of the question on the provenance of the NCCC and the legality of its powers and exercise thereof will have no practical effect – Mr Dlamini says that this point is bad in its articulation, in fact and in law.
The COGTA Minister is herself uncertain of the point when she says the applicants’ complaints
“would appear to have been addressed in toto by the [28 May 2020] regulations”
This does not inspire confidence in the point.
In any event, the 28 May 2020 covid-19 regulations do not address Mr Dlamini’s complaint about the provenance or lawfulness of the NCCC and its continued making of binding decisions, including policy decisions, that it has no power in law to make. That is the factual flaw of the point.
The legal flaw in the point is that mootness is not necessarily a bar to a court considering a dispute if that is in the interests of justice to do. The Constitutional Court said so in Shuttleworth 2015 (5) SA 146 (CC); 2015 (8) BCLR 959; [2015] ZACC 17, para 27, and the High Court has just said so in NSPCA 2020 (1) SA 249 (GP), paras 36 to 42.
What is more, the government seems to blow hot and cold on whether or not alert level 4 restrictions may return. In paragraph 6 of Counsel’s written submissions they leave that door open; in paragraph 133 they say even if alert level 4 were to return, the trade directions “would not resurrect”. What is certain, though, is that there is no guarantee that alert level 4 may not return – with its restrictions. In these circumstances it cannot be said that the application is moot, or that it is not in the interests of justice to determine it.
- As regards appropriate remedy, the Dlamini team says Counsel for the government make this submission in paragraph 31 of their written submissions after complaining that the relief sought is “overbroad” and must be dismissed:
“It is customarily appropriate when it is held that an office is being unlawfully occupied to declare the appointment of that person invalid, but to leave intact decisions made by that person, and that such an order falls within the Court’s remedial powers to declare conduct invalid but to grant a just and equitable order including refusing to recognise any further consequences arising from the invalidity.”
Mr Dlamini’s case has never been that the NCCC is “unlawfully occupied” or comprises people who should not be there. He says its establishment has no legislative or constitutional provenance, and its decisions have no legislative or constitutional underpinning. But, as regards the relief proposed by Counsel for the government that, upon finding that the NCCC is unlawful and acts without legal sanction, this court should refuse to recognise any further consequences arising from its invalidity, Mr Dlamini agrees.
Summary of the Government Team Argument
- As regards attacks on the regulations under PAJA, the government team says the application is an attack on government policy. The courts cannot interfere with government policy under PAJA.
The promulgation of regulations in terms of s 27(2) of the DMA is more closely related to the formulation of policy rather than the implementation of legislation. This is so because s 26(1) of the DMA makes the response to disasters an executive function. So, the issuing of regulations aims to combat the disaster which concerns polycentric matters of high policy. It thus resides in the heartland of national executive function: ITAC v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC), para 101. For that reason, the issuing of regulations cannot be attacked under PAJA.
- As regards the mootness point (that determination of the application will have no practical effect), Counsel for government argue that the issues in relation to the Clothing Directions are moot because alert level 4 has ceased and, together with it, the Clothing Directions.
- As regards the provenance or lawfulness of the NCCC, the NCCC is a constitutionally permissible structure because s 85 of the Constitution confers a wide power on the President and Cabinet to coordinate executive functions as they see fit. Mr Dlamini’s search for some further statutory or constitutional provision empowering Cabinet to establish the NCCC is misguided. Cabinet’s power to regulate its own affairs is inherent in it being vested by s 85 of the Constitution with the executive authority of the Republic. The Constitution does not address the minutiae of how Cabinet must organise itself. This lack of specific provisions regulating and constraining the President in the organising of Cabinet internal affairs is intentional.
Cabinet’s deliberative and decision-making procedures are inherently political choices which will vary between governments, and when circumstances change: Murray and Stacey “The President and the National Executive” Constitutional Law of South Africa” OS 06-08, chapter 18 page 36.
The use of committees is generally recognised as a welcome and necessary feature for cabinets. The NCCC is a Cabinet structure comprising all Cabinet members. It is in fact a Cabinet committee. In fact, the NCCC is Cabinet by another name.
The interchangeable language used by the national executive between “the NCCC” and “Cabinet” is to be expected because sometimes Cabinet is acting when sitting formally as Cabinet, and sometimes it is acting through the NCCC.
This interchangeable language is constitutionally innocuous. The NCCC is a committee of Cabinet, comprising only ministers. The actions and functions of the NCCC are the actions and functions of Cabinet. Nothing prevents Cabinet from making decisions at the NCCC level, or elevating decisions of the NCCC to a formal Cabinet meeting, or for that matter making the decision at a meeting of the NCCC and then confirming that decision in a formal Cabinet meeting.
The drafters of the Constitution would have been aware that Cabinet would be likely to employ committees and, given the functioning of the modern state, would rely on committees extensively to function effectively and responsibly. If the Constitution was intended to limit the President and Cabinet’s powers to exercise their executive authority by prohibiting them from establishing and using committees, it would have stated as much expressly.
- As regards whether the NCCC has decision-making powers in law, the NCCC has no decision-making powers reserved by statute for other Ministers and other organs of state.
The NCCC acts as a forum for discussion and debate on covid-19 issues.
It does on occasion make what could be termed “critical decisions” and there is nothing inappropriate with this provided such decisions are subsequently taken by Cabinet sitting as Cabinet.
The NCCC has the power to decide on lockdown alert levels, but this would require Cabinet approval.
The NCCC is a coordinating body given authority by Cabinet to do that. But, as a Cabinet committee, the NCCC is empowered, like Cabinet itself, to take binding decisions, including policy decisions, on behalf of government.
The NCCC is no more than a committee of Cabinet. On some occasions, it is taking decisions relating to covid-19, and on other occasions those are being escalated to formal Cabinet meetings. In either event, such decisions are decisions of Cabinet, and are constitutionally compliant.
- As regards whether the NCCC has in fact made decisions, including policy decisions, Cabinet took the decision to enter a strict lockdown phase, not the NCCC.
The NCCC decided to enforce a nation-wide lockdown for 21 days with effect from midnight on Thursday 26 March 2020.
The NCCC met again on 23 April 2020 and determined that the national coronavirus alert level would be lowered from level 5 to level 4 with effect from Friday the 1st of May.
The suggestion by the COGTA Minister and the President that the NCCC determined alert levels and enforced lockdown was simply imprecise language.
- As regards constitutional validity of the covid-19 regulations, Counsel for government argued that some of the arguments raised in the Esau team’s written submissions relate to new attacks belatedly advanced and were not crisply pleaded in the founding papers. This has deprived government of the opportunity fully to address the arguments raised. In any event, should the Court hold that it may and should consider the issue, the applicants are reading into s 27 of the DMA substantial jurisdictional considerations that do not exist. Further, there is no inconsistency between the pieces of legislation identified by the applicants [the LPA, the Children’s Act, the Prevention of Illegal Evictions and Unlawful Occupation of Land Act 19 of 1998, the Extension of Tenue Act] on the one hand, and the regulations, on the other, and the COGTA Minister was empowered to create offences as the DMA provides expressly in s 27(4) that regulations made under s 27(2) may include regulations prescribing penalties for any contravention of the regulations.
Government also argued that the regulations comply with the Constitution and that the regulations’ purpose of preventing the unmanageable spread of covid-19 is not only constitutionally permitted but constitutionally mandated. The limitations analysis under s 36 of the Constitution must be informed by the fact that any response to the pandemic may require choosing between a number of different and unpalatable options. To implement a rapid reduction of the transmission rate, a lockdown was required in addition to other behavioural tools provided for in the DMA. The right to life and the right to dignity, and the government’s concomitant responsibility to save lives justifies the limitation on other rights. For this proposition reliance was placed principally on Makwanyane 1995 (3) SA 391 (CC), para 144.
- As regards the necessity of the covid-19 regulations, the lockdown was, and remains, necessary and the regulations were, and continue to be, necessary in order to give effect to the scientific advice that was received.
- As regards procedural irrationality and the necessity for consultation, the regulations were published following a procedurally rational process, and the only consultation required when regulations are promulgated under s 27(2) is consultation with the “responsible Cabinet Minister”. Public consultation is not required by the DMA at all. This is in contrast to other exercises of powers in the Act. Reliance was placed on DA v Pres, RSA 2013 (1) SA 248 (CC); Albutt 2010 (3) SA 293 (CC); Kyalami Ridge [2001] ZACC 19 (29 May 2001).
- As regards arbitrariness, Government argues that distinctions between activities are not irrational. To reduce the risk of transmission, the total number of opportunities for transmission must be reduced. This requires an unavoidable decision between allowing some activities that pose a risk of transmission but not others.
- Regarding the appropriate relief in respect of the NCCC attack, Counsel for the government say the challenge has no merit and must be dismissed. In the alternative, they say:
“If the Court is against the [government], it is respectfully submitted that the relief in the notice of motion is overly broad. It is customarily appropriate when it is held that an office is being unlawfully occupied to declare the appointment of that person invalid, but to leave intact decisions made by that person, and that such an order falls within the Court’s remedial powers to declare conduct invalid but to grant a just and equitable order including refusing to recognise any further consequences arising from the invalidity.
A similar approach should be adopted here. Decisions that have been taken by Cabinet sitting as the NCCC can then be set aside on a case-by-case basis and with regard to the merits of each decision.”
As regards appropriate relief in respect of the challenge to the regulations, the government asks the court to dismiss the challenge. In the alternative they say:
“If the Court is against the [government], and declares any of the impugned regulations invalid, it should suspend the declaration of invalidity to permit an opportunity for the Minister to rectify any deficiencies identified. It is respectfully submitted that a 30-day period is an appropriate period of time for which to suspend any declaration of invalidity.”
Read the Full Judgment here: Esau v Min of CoGTA final judgment (26 June 2020)
