Why has the High Court declared the regulations invalid and unconstitutional?

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The liberal yet scathing High Court judgement of De Beer and Liberty Fighters Network v Minister of Cooperative Government and Traditional Affairs declared certain regulations published under Alert Level 3 of the national lockdown, invalid and unconstitutional. This can leave one confused, because, in April 2020, a judgement from the same high court declared regulations prohibiting gatherings constitutional and justifiable. Also, not too long ago, citizens praised the President and government for acting so swiftly to prevent the spread of the Covid19 pandemic. However, this is indicative of how easily the mood and public opinion can change.  

At the beginning of the national lockdown, cases brought against the government was lost on the basis that the right to life trumped all other rights. 

The National Command Council was secure in making its regulations. What changed? Could it possibly be the reality of closing an economy and lack of implementation of measures aimed at assisting workers, informal traders, self-employed, businesses, etc that are now without an income?  All these negatively impacted citizens raising their concerns in the media would inevitably lead to changing the countries mood and in so doing change its narrative and public opinion.  

Judge Davis noted the judgement delivered in April 2020 in the case of Muhammed Bin Hassim Mohamed v The President of Republic of South Africa (Case number: 21402/20). In this case, he observed that the high court decided that regulations in terms of Disaster Management Act of 2002 (DMA), prohibiting religious gatherings was reasonable and justifiable in the circumstances under which it was promulgated, in an open and democratic society based on human dignity, equality and freedom. Judge Davis pointed out that in the case of Muhammed, applicants agreed that, given the overwhelming evidence of the Covid19 pandemic, the regulations were rational. 

However, the applicants, in that case, asked for an exception to the regulations. The judge further points out that in the application before the court, the applicants contested the rationality and constitutionality of the regulations. The two cases are different and therefore the court is not bound by the judgement delivered in case of Muhammed.

Judge Davis emphasised that the exercise of any public power must comply with the constitution and the doctrine of legality. This doctrine falls under the rule of law and is one of the measures through which public power must be exercised. This simply means that the executive government and legislature cannot exercise powers other than that which is conferred on them by the constitution.  

The court found that, given the overwhelming evidence on the Covid-19 pandemic, it was rational to declare a national state of disaster and implement a national lockdown.  

However, the court pointed out that the DMA and its enabling provisions did not contemplate a situation such as the Covid-19 pandemic but rather for example floods and other disasters.  The unfortunate consequence of invoking the DMA for Covid-19 is that it: “places the power to promulgate and direct substantial (if not virtually all) aspects of everyday life of the people of South Africa in the hands of a single minister without little or none of the customary parliamentary, provincial or other oversight functions provided for in the constitution”. 

The judgement looks at the various regulations, with the exclusion of alcohol and tobacco, promulgated under Alert Level 3 of the national lockdown. The regulations are measured against the “rationality test” which evaluates the relationship between the means and the ends.  In other words, whether the means used is rationally related to the objective or purpose it wants to achieve. Failure of a measure to pass the rationality test means that a right cannot be limited in terms of section 36 of the constitution. 

Amongst others, the court highlighted the irrationality of not allowing a terminally ill person to have relatives visit him or her, however, those very relatives are allowed to gather at the persons funeral. Allowing people to walk on the promenade but not set foot on the beach and the blanket ban on informal traders and hairdressers were also regarded as irrational.

Disappointingly, the court emphasised that no regard was had as to how the regulations will impact the rights of people.  The starting point was not how the measures can be achieved with the least harm to citizens but rather, the government will achieve its objectives by whatever means and irrespective of the cost to and rights of the people of South Africa. The court stated that this approach was paternalistic rather than constitutionally justifiable and this was confirmed by the statement made by the Director-General for Cooperative Government and Traditional Affairs, “The powers exercised under lockdown regulations are for the public good. Therefore, the standard is not breached”

The judgement is a wake call to government that laws or other regulatory measures cannot be made or implemented without meaningful public participation or citizen buy-in. Although the draft regulations were published and stakeholders consulted, public participation or consultation is not a tick box exercise but rather a constitutional requirement for politicians and public officials to make informed decisions.  

It is very likely that the Minister of Cooperative Government and Traditional Affairs will take the judgement on appeal to the constitutional court. 

If the government does not appeal the judgement, it could possibly open itself up to an avalanche of civil liability cases from traders, businesses, other institutions, etc. A likelihood that the constitutional court will be aware of and may decide differently about the regulations.  

Where to from here? The invalidity of regulations has been suspended for 14 days to give the government an opportunity to rectify the regulations. This means that the present regulations are still in place and should be complied with until either new regulations are promulgated.