/ 2 June 2020

High court strikes down ‘paternalistic’ lockdown regulations

Safrica Health Virus
South Africa came under a nationwide lockdown on March 27, 2020, joining other African countries imposing strict curfews and shutdowns in an attempt to halt the spread of the novel coronavirus across the continent. (Photo by Luca Sola/AFP)

The government’s response to the Covid-19 pandemic was a “paternalistic” one, said the Pretoria high court on Tuesday, when it struck down as unconstitutional the lockdown regulations under the Disaster Management Act

The order was suspended for two weeks to allow Co-operative Governance Minister Nkosazana Dlamini-Zuma time to “review, amend and republish” some of the regulations. However, an application to appeal is likely to be made in that time.

The case was brought by Reyno de Beer and an organisation called Liberty Fighters Network during level four of the lockdown. They asked the court to strike down as unconstitutional the declaration of a national state of disaster and all the regulations under it, on the basis that the government’s response to the Covid-19 pandemic was  a “gross overreaction”. 

In his judgment, Pretoria high court Judge Norman Davis said the overreaction argument could not be sustained. But the declaration of a national state of disaster “places the power to promulgate and direct substantial (if not virtual[ly] all) aspects of everyday life of the people of South Africa in the hands of a single minister with little or none of the customary parliamentary, provincial or other oversight functions provided for in the Constitution in place.”

In such circumstances, the regulations had to be “closely scrutinised”, said the judge. Davis said each regulation had to be both rational and justifiable under the Constitution and went on to look at individual aspects of the regulations. 

While some passed muster, he found a number were irrational. It was irrational that people were allowed to attend funerals yet informal traders, who had less contact with other people on a daily basis than at a funeral, were not allowed to trade. It was irrational that a hairdresser, willing to comply with preventative measures, must “watch her children go hungry while witnessing minicab taxis pass with passengers in closer proximity to each other than they would have been in her salon”, he said.

“To put it bluntly, it can hardly be argued that it is rational to allow scores of people to run on the promenade but were one to step foot on the beach, it will lead to rampant infection,” Davis said. 

He said that the evidence before him — an affidavit from the co-operative governance and traditional affairs director-general on behalf of the minister — did not show that the minister had considered each of the regulations individually for their constitutionality. “The director general’s affidavit contains mere platitudes in a generalised fashion in this regard, but nothing of substance,” he said.

“The clear inference I drew from the evidence is that once the minister had declared a national state of disaster … little or, in fact, no regard was given to the extent of the impact of individual regulations on the constitutional rights of people,” he said.

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

This was a paternalistic approach, rather than a constitutionally justifiable approach, Davis said.

The regulations had, “in an overwhelming number of instances”, not been justified by the minister. The government had to look at “every instance” where rights were being encroached upon and enquire whether the encroachment was justifiable, he said.

“Without conducting such an inquiry, the enforcement of such means, even in a bona fide attempt to attain a legitimate end, would be arbitrary and unlawful,” said Davis. 

In a statement, the Cabinet said it was studying the judgment and would make a further statement once it had fully studied it.