Back to the drawing board for lockdown rules

In declaring some of the lockdown regulations unconstitutional and irrational, the court has ruled that the government needs to follow a more human-centred approach.

The high court in Pretoria has declared certain lockdown regulations that have been implemented at alert levels three and four unconstitutional and invalid. In finding against the government, judge Norman Davis said “once the minister of cooperative governance and traditional affairs had declared the national state of disaster and once the goal was to ‘flatten the curve’ by the way of retarding or limiting the spread of the virus … little or in fact no regard was given to the extent of the impact of individual regulations on the constitutional rights of people”.   

In making this decision, the court was not oblivious to the threat of the coronavirus. Davis wrote that “one must also be mindful of the fact that the Covid-19 danger is still with us and to create a regulatory void might lead to unmitigated disaster and chaos”. As such, the court suspended the application of the order, allowing the minister, Nkosazana Dlamini Zuma, 14 days to amend the regulations.

The matter was brought by the Liberty Fighters Network and its president, Reyno de Beer, on an urgent basis. In a media statement before the hearing, De Beer had framed the application as “a David versus Goliath” case. His organisation strongly felt that the lockdown regulations and the national state of disaster were invalid and unconstitutional.

National state of disaster is constitutional 

It is important to note that the court did not declare the declaration of the national state of disaster unconstitutional, a relief sought by De Beer and his network, which said it was irrational, reactionary and not premised on scientific evidence. They argued that there were numerous diseases, such as tuberculosis, with a high mortality rate. 

In response to this charge, the government told the court that before the declaration of the national state of disaster it had “sought medical advice from medical and scientific experts to prepare in order to manage and minimise the risk of infection and slow the rate of infection to prevent the overwhelming of the public healthcare facilities”. It said there was no prior legislation or contingency that could adequately deal with Covid-19.

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The applicants insisted that the International Health Regulations Act 28 of 1974 was the law that must be used in dealing with the outbreak. The court disagreed, reasoning that the act is outdated and not tailored to deal with Covid-19. The government’s declaration of the national state of disaster in response to Covid-19 in terms of section 27(1) of the Disaster Management Act was found to be rational.

“I am also prepared to accept that measures were urgently needed to convert an ailing and deteriorated public healthcare system into a state of readiness, able to cope with a previously unprecedented demand for high-care and intensive-care facilities should there not be a ‘flattening’ but an uncontrolled ‘spike’ in the rate or number of seriously affected patients,” Davis wrote, adding that this constituted “special circumstances” for the state to declare a national disaster. However, he took issue with the subsequent regulations that the government adopted. 

Influx of court challenges 

In passing, Davis mentioned that the courts were receiving an influx of cases challenging the regulations. When questions were posed to the minister regarding the status of these cases, Davis was told that they were due to be heard in June. Among these pending cases are the DA’s application to test the constitutionality of the Disaster Management Act and two that challenge the ban on tobacco sales.

Davis said a further concern for him was “the possibility of conflicting judgments due to a multiplicity of applications in different courts and at different times, dealing with matters related to the same subject matter of this application”. In other words, if different courts reach different decisions on the constitutionality of the lockdown regulations, there would be mayhem and uncertainty in relation to the application of the law. Despite this concern, the court made a ruling on the constitutionality of the regulations.

Irrational regulations

The applicants contended that the lockdown regulations had to be approved by the National Council of Provinces before they were adopted. Davis said this argument was misplaced because the Covid-19 regulations addressed an urgent issue and were only meant to apply for a certain period.

For Davis, what this highlighted was a limitation in section 27(1) of the act. It grants “power to promulgate and direct substantial … 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”. It is for this reason that the court said the functions of the cooperative governance minister should be “closely scrutinised to ensure the legality and constitutional compliance”. 

Davis used several examples to demonstrate the irrationality of certain regulations. Commenting on those applicable to funerals, he criticised the absolute prohibition of cultural practices such as night vigils the day before a funeral. “Should grieving family members breach this prohibition, their grief is even criminalised,” he said.

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Davis posed rhetorical questions that aimed to demonstrate the ambiguity of the regulations: “If one wants to prevent the spread of the virus through close proximity, why ban night vigils totally? Why not impose time, distance and closed casket prohibitions? Why not allow a vigil without the body of the deceased?”

The blanket approach to the number of people who could attend funerals also had limitations for the court as they failed to anticipate an instance where the deceased is the head of a clan or traditional head of a village, which would mean funerals could not be limited to close family members.

Davis also criticised the manner in which aid is accessed. People might have been able to practise physical distancing, he said, “but are now forced to congregate in huge numbers, sometimes for days, in order to obtain food which they would otherwise have prepared or acquired for themselves”.        

He also mentioned that workers in the informal economy, such as waste pickers, construction workers, informal traders and hairdressers, were deprived of a chance to work and feed their families. Regulations could have been adjusted to allow them to work while strictly following health precautions, he said. 

A human-centred approach 

Despite hard criticism for some of the regulations, Davis did acknowledge that others were rational, including the closing of the country’s borders, the prohibition of evictions and the closure of gym facilities and nightclubs. He said these were rationally connected to the objective of containing the spread of the virus.

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However, he ruled that the regulations were irrational and the limitation of fundamental rights could not be justified in terms of the limitation clause in Section 36 of the Constitution. The blanket ban on the right to protest found in Section 17 of the Constitution “harks back to a pre-constitutional era and restrictive state of emergency regulations,” Davis said, and the court preferred regulations that are centred on human rights. 

The court elected not to rule on the issue of tobacco sales, citing that the matter is before another court for adjudication. 

In a statement, the spokesperson of the Cabinet, Phumla Williams, said the judgment had been noted and a detailed response would be issued once it has been studied properly. 

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