/ 3 June 2020

Judge trashes entire lockdown regime as constitutionally flawed

25th Au Summit
Unconstitutional: The judge said it was irrational of Cooperative Governance Minister Nkosozana Dlamin-Zuma to allow taxis, in which passengers were in close proximity, to operate yet hairdressers, with fewer clients, could not reopen. (Ihsaan Haffejee/Anadolu Agency)


It seemed to come out of nowhere. Everyone was following the cigarette ban case, the Democratic Alliance’s parliamentary oversight case and other court actions on different aspects of the lockdown regulations. Then, suddenly, came a judgment that, in one fell swoop, struck down the core of the regulatory regime that South Africa has been living under since the country went into level four of the national state of disaster.

On Tuesday Pretoria high court Judge Norman Davis ordered that “the regulations promulgated by the minister of cooperative governance and traditional affairs … are declared unconstitutional and invalid”.

But Davis suspended his order for 14 days to allow Cooperative Governance Minister Nkosazana Dlamini-Zuma time to “review, amend and republish” some of the regulations.

The tobacco ban was also specifically excluded from his order, since it is before another court.
The nub of his judgment was that each and every regulation under the Disaster Management Act had to be both rational in law and justifiable under the Constitution.

But, he said, 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 Dlamini-Zuma had considered each of the regulations individually in terms of 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.”

The government had to look at “every instance” where rights were being encroached on and inquire whether the encroachment was justifiable, Davis ruled. “Without conducting such an inquiry, the enforcement of such means, even in a bona fide attempt to attain a legiti-
mate end, would be arbitrary and unlawful.”

Although some regulations passed constitutional muster, “in an overwhelming number of instances” the regulations had not been justified by Dlamini-Zuma.

For many people — gatvol, anxious and exhausted by the ongoing uncertainty caused by the lockdown — the judgment captured exactly what they felt. The government’s response was “paternalistic”, Davis found. It was irrational that people were allowed to attend funerals while informal traders, who had less contact with other people on a daily basis than people at a funeral, were not allowed to trade.

It was irrational that a hairdresser, willing to comply with preventative measures, had to “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”.

“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 [set] foot on the beach, it will lead to rampant infection,” Davis remarked.

But, what could be argued when the inevitable appeal comes is that the minister answered in “platitudes” and generalities because the application was itself a sweeping one, full of similar generalities and platitudes.

It 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.

The main argument put forward was that the government’s response to the Covid-19 pandemic was a “gross overreaction”. It was also argued that the regulations were invalid because they had not been approved by the National Council of Provinces and were in breach of the Gatherings Act, passed by Parliament.

All of these arguments were rejected by the judge. But on individual regulations — the basis on which the case was decided — the founding affidavit was notably sweeping.

In one paragraph, De Beer refers to the classification of mineworkers as essential services as hypocritical and irrational. In the next he talks of hair salons, vehicle finance and property industries not being essential services as irrational.

The high court judgment will delight gatvol South Africans – but is unlikely to stand the test of time.

“In general, these regulations have violated almost all clauses in the Bill of Rights,” said De Beer, listing none but saying this matter would be argued at the hearing.

It is likely that the judgment will also be criticised for the way the legal test for rationality was applied. Davis set out the in principle test uncontroversially: the regulation in question must be rationally connected to the objective for which it was passed — to slow down the spread of the virus. But, when the judge applies the principle, he assesses rationality comparatively, asking how it can be acceptable for taxis to run but not for hairdressers to work. He does not, for example, consider the rationale that essential services workers must get to work somehow.
As a number of commentators have already said, the judge set aside the regulations under both level four and level three.

Yet the level three regulations were not before him: when the application was made and answered, the level three regulations had not been promulgated.

These and other considerations are likely to result in an urgent appeal.

So, while many may be nodding in agreement and celebrating the sentiment of the judgment, it is likely that it will be the other — more focused — cases relating to the lockdown that will stand the test of time.