/ 1 July 2021

SCA overturns ruling that held level-four lockdown regulations were unconstitutional

The Economy Has Slowed Down During The 21 Day Lockdown Photo Delwyn Verasamy
The Supreme Court of Appeal (SCA) on Thursday overturned a much-criticised high court ruling in the early days of South Africa’s Covid-19 lockdown that struck down most of the restrictions imposed by the state as unconstitutional. (Delwyn Verasamy/M&G)

The Supreme Court of Appeal (SCA) on Thursday overturned a much-criticised high court ruling in the early days of South Africa’s Covid-19 lockdown that struck down most of the restrictions imposed by the state as unconstitutional.

The SCA said the challenge to the lockdown regulations had been improperly pleaded from the outset and the Pretoria high court had chosen to see a case where there was none.

Approaching the court during level-four lockdown, Ryno de Beer and an obscure organisation called the Liberty Fighters Network (LFN) had asked it 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”.

Ruling in favour of Co-operative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma, a full bench of the appellate court faulted the applicants for being so vague in argument as to make it impossible for the minister to know which regulations were impugned and on which grounds.

“The foundation of the respondents’ case was based upon sweeping generalisations and broad conclusions,” the SCA found.

“Had a properly pleaded case been advanced, no doubt, the minister would have been expected to put up the necessary evidence to justify the regulations … It was not for the minister to justify each of the regulations in a vacuum.” 

This weakness was not merely a matter of form or “elegance”, as the high court suggested.

“The high court was willing to see a case where there was none and unjustifiably excused the manner in which it was framed,” the SCA found.

The applicants had ignored the dicta that those who bring a constitutional challenge must set out with sufficient clarity and supporting evidence the case that those in power must answer. What was offered as evidence sailed close to Covid denialism, the SCA said.

De Beer and the LFN had argued that the state of disaster imposed by the government was irrational and based on incorrect advice and unreliable information. 

But the SCA noted that an attack on rationality needed to be properly pleaded so that the minister knew what she was being called on to explain.

As it was, the court said, the minister was compelled to deal, as best she could, with a case that was framed in almost unintelligible terms. 

It disagreed with Judge Norman Davis that the department had offered little more than “platitudes” to explain her decisions, which he said had reflected little consideration for how these would affect the lives of citizens.

The high court had refused the minister leave to appeal against the regulations that were specifically mentioned in Davis’s judgment

He found it irrational that funerals were allowed but informal traders were not allowed to operate. 

Equally, Davies said, it was irrational that a hairdresser 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”. 

And he deemed it absurd that at the time people were allowed to walk on a promenade, but barred from setting foot on the beach.

Davis ordered that every restriction had to be scrutinised for constitutionality and said the evidence before him suggested that the minister had failed to do so. He gave the minister two weeks to review, amend and republish the regulations.

At the end of June last year, the high court granted Dlamini-Zuma leave to appeal against the declaration of invalidity of only those regulations that were not expressly identified in its judgment.

But the SCA allowed the minister to appeal the ruling its entirety.

It found that Davis set aside regulations that had not yet come into force and were not impugned by De Beer and the LFN.

“The high court ranged beyond what had been sought by the respondents,” the SCA said.

This meant the minister was denied a proper hearing and the judgment suffered from a failure of proper judicial reasoning and a lack of restraint.

Although there would be several court challenges to the rationality of regulations, Davis’s ruling had marked the government’s first defeat in defending these. 
The SCA will later this year hear Dlamini-Zuma’s appeal to a Western Cape high court ruling that the contentious five-month ban she imposed on cigarette sales was unconstitutional.