Lockdown regulations declared "invalid": how and why it happened

03 June 2020,  Jonathan Le Riche 1744
Yesterday Judge Norman Davis handed down an important judgement in the Gauteng High Court declaring the lockdown regulations under alert level 3 and 4 unconstitutional and invalid. But what does this mean and how did he reach his conclusion?

We all know that South Africa is a democratic country in which the South African Constitution of 1996 is the Supreme Law and thus all other laws must be consistent with our constitution.

This consistency includes the exercise of public powers, which must comply with the Constitution - and this is included in our Constitution as the separation of powers. This separation of powers ensures that the Cabinet, Parliament and Courts of Law can keep each other accountable for their actions and ensures that there is always a balance. Thus, in this judgement it was exactly this aspect of accountability which needed to be dealt with. 

Our Constitution gives all South Africans certain basic rights such as the right to life, healthcare, education and so on. These rights can in certain situations be limited. Section 36 of our Constitution allows the limitation of certain rights, but only on condition that the limitation “is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”

The lockdown regulations under alert level 3 and 4 which were promulgated by the Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini-Zuma, are set out in terms of Section 27 of the Disaster Management Act, which allows the minster, after consultation with the relevant cabinet members, to implement certain regulations in an attempt to assist the public in the case of a disaster such as the Covid-19 pandemic.    

These lockdown regulations may be implemented to achieve a certain goal, and in the case of this lockdown, the main goal was to flatten the curve and to the prepare health systems for an anticipated surge in infections. Generally these regulations are meant to assist the public with the disaster. 

However, to be deemed valid every regulation passed needs to pass two tests. Firstly the “rationality test”, which means that the regulation must be rationally related to its purpose. Secondly, the “limitation test” which means that where a regulation affects a Human Right, this regulation must be in line with Section 36 of our Constitution as mentioned above. 

The Honourable Judge dealt with these two tests in his judgement by way of various examples where the regulations clearly do not pass these two tests. Some examples hereof are the following:

  • Restrictions on gathering where no one is allowed to visit a sick relative at their home who may be in desperate need of family support but should a relative pass away up to 50 people can attend the funeral;
  • Restrictions on exercise: people could exercise during certain hours only and people is in coastal areas specifically were allowed to overcrowd the promenade but were not allowed to set foot on the beach. The regulation should rather have limited exercise in groups, but not the time and place of the exercise;
  • Restrictions on businesses such as fisheries, vendors and salons not being able to operate due to threat of infections, even though people can be transported in a minibus taxi in much closer proximity than they would be at these businesses. These businesses would also come into contact with far fewer people than at a funeral or supermarket;
  • Restrictions on earning ability lead to the need for distribution of food parcels. This restriction then forces many people to congregate in huge numbers to obtain these parcels where, had they been allowed to earn their living, they could have prepared and/or acquired themselves.
  • Lastly, regulations regarding specific clothing items which could and could not be purchased also failed the rationality test.
It must be noted that the Judge did concede that parts of the regulations did pass these tests, such as the closure of night clubs, fitness centres and borders. 

Therefore, by applying these tests, the Judge concluded that the lockdown regulations were unconstitutional and invalid. He ordered that the minister must now consult with the relevant cabinet ministers, and review and amend the current regulations within 14 days from 2 June 2020. 

The question on the majority of people's lips, namely the issue of the limitation on the sale of tobacco products, was not dealt with by Judge Davis due to pending action - and has been postponed until the pending action has been finalised.

Watch this space for further developments!

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