The lockdown, the National Coronavirus Command Council (NCCC) and the subsequent regulations for the lockdown are most certainly going to precipitate litigation in the Courts in relation to their legality and constitutionality.
In this legal contestation in the Courts, instituted by, inter alia, political parties, such as the Democratic Alliance (DA), the Freedom Front (FF), and other entities such as the Hellen Suzman Foundation (HSF), Students’ Western Cape High Court application, brought by Mr D Esau and seven other students (Esau Application) the Courts will be confronted with legal, scientific and economic grounds intended to challenge the constitutionality and validity of the NCCC and its regulations.
In relation to the NCCC, its very name is a source of controversy, since the word ‘command’ immediately creates the cogent impression of an ‘authoritarian structure’ which it is submitted is at variance with the values and language of our libertarian, democratic Constitution, premised on government by consent, which must at all times be subject to parliamentary oversight, required by a system of responsible or accountable government. However, it is not merely its designation, but it very existence of the NCCC that is likely to be legally and constitutionally impugned.
The same applies to the regulations which infringe upon numerous fundamental values and rights, enshrined in the Constitution and its Bill of Rights. The rights violated in some way or another, directly or indirectly are, inter alia, the right to movement in section 21 of the Constitution; the right to human dignity (section 10); the right to life (section 11); the right to freedom of expression (section 16); the right to religious freedom,(section 15); the right to freedom and security of person (section 12); the right to freedom of assembly, picketing and demonstration (section 17); political rights (section 19); the right to freedom of trade, occupation and profession; the right to fair labour practices (section 23); and the right of access to the courts(section 34).
Although none of these rights are absolute, their limitation cannot be arbitrary and is governed by section 36 of the Constitution which is the limitation clause and which requires that fundamental rights can only be limited in terms of a law of general application to the extent that the limitation reasonable and justifiable in an open and democratic society premised on human dignity, equality and freedom, taking into account certain stipulated factors, such as less restrictive means to achieve the purpose on such limitation. In addition, the regulations must comply with the provisions of the Promotion of Administrative Justice Act (PAJA), the most important of which is that they must be rational and reasonable.
Certain of the regulations that are going to be cogently challenged are, inter alia:
The curfew from 7pm to 6am;
The total ban on tobacco and cigarettes;
E-commerce directions; and
Exercise restrictions to between 6-9am.
Even if some of these are no longer applicable under lockdown level 3, their validity is apparently going to be challenged to determine in principle whether they are constitutionally valid and rational.
Furthermore, should circumstances require it, according to the President most recent address, some parts of the country could return to level 4. In the litigation that is going to ensue from the lockdown and its regulations opposing litigants are going to present Medical/Scientific grounds to justifying their respective standpoints. The economic consequences are also likely to feature prominently in the litigation. The use of the Disaster Management Act 57 of 2002 as the legislative measure to deal with the corona virus pandemic is also likely to be challenged as not appropriate. It could to be argued that the International Health Regulations Act 28 of 1974 would have been more suited to address the said pandemic.
Ultimately, the litigation, which has already been initiated, is going to proceed to the Constitutional Court where a battle royal is likely to occur. What is at stake is, inter alia, the nature and operation of our liberal democratic system of government in a time of crisis, as we are now experiencing and how the executive must handle it. This is an inordinate challenge to the judiciary and particularly the Constitutional Court, bearing in mind the fundamental doctrine of separation of powers, and the problem of judicial overreach. This is jurisprudentially and politically fascinating and the lawyers are going to have a field day in the courts.
George Devenish is Emeritus Professor at UKZN and one of the scholars who assisted in drafting the Interim Constitution in 1993.