South African lockdown rules declared unlawful

4 June 2020 by Rosalind English

Reyno Dawid De Beer and Liberty Fighters Network (Applicants), Hola Ben Renaissance Foundation (Amicus Curiae) v The Minister of Cooperative Government and Traditional Affairs (Respondent) – Case No. 21542/2020 High Court of South Africa (Gauteng Division, Pretoria)

2 June 2020

“One need only to think about the irrationality in being allowed to buy a jersey but not undergarments or open- toed shoes “

Update: see my post on a ruling by the New Zealand High Court on the illegality of restrictive measures imposed by the government in the early days of lockdown.

A High Court judge in South Africa has just taken a stand on the ANC government’s reaction to the pandemic. He has ruled that some of the lockdown regulations do not satisfy the rationality test under public law, and that their encroachment and limitation on the freedoms set out in the South African Bill of Rights are not justified in a society based on “human dignity, equality and freedom as contemplated in Section 36 of the Constitution.”

He drew “clear inference” from the evidence, that once the government had declared a national state of disaster, the goal was to flatten the curve by way of retarding or limiting the spread of the virus (“all very commendable and necessary objectives”). However, “little or in fact no regard” was given to the extent of the impact of individual regulations on the constitutional rights of people and whether the extent of the limitation of their rights was justifiable or not.

His criticism was not that the government should have done nothing in the face of the epidemic, but that they took a cartwheel to crush a butterfly.

The starting point was not “how can we as government limit Constitutional rights in the least possible fashion whilst still protecting the inhabitants of South Africa?” but rather “we will seek to achieve our goal by whatever means, irrespective of the costs and we will determine, albeit incrementally, which Constitutional rights you as the people of south Africa,  may exercise”.

This was a challenge to the validity of the declaration of a National State of Disaster by the Minister of Cooperative Governance and Traditional Affairs and the regulations promulgated by her pursuant to the declaration.

Since 1994 South Africa has been a constitution-based democracy, with its central document the South African Bill of Rights which is in many ways an amalgam of the European Convention of Human Rights and the EU Charter of Fundamental Rights, combining as it does civil and political rights and aspirational social and economic rights, (the latter’s enforceability against the government remains unclear).

But we do not need to get into the muddy waters of socio-economic rights as this case concerns pure civil liberties.

In March the South African government declared a national state of disaster and made a series of restrictive regulations pursuant to it. These regulations related, inter alia, to the limitation on exercise, the attendance of funerals, and the practicalities of distributing aid relief. The applicants disputed the “mere say-so” of the government that there existed no existing legislation by which the national executive could have dealt with the disaster and they contended that

any such determination by the Minister was both misplaced and “irrational”.  Their contention is made with reference to the International Health Regulations Act, 28 of 1974. 

This argument raises an interesting parallel with challenges to the regulations in this country made under the Coronavirus Act 2020 and the Public Health Act 1984, which critics argue would have a more secure legal basis under the Civil Contingencies Act (2004) (see my earlier posts on these challenges here and here).

The applicants in the South African case based their attack on the alleged irrational reaction to the coronavirus itself and the number of deaths caused thereby.  The applicants referred to various comparisons to other diseases plaguing the country and the continent, such as TB, influenza and SARS COV-2. And this is of course where the comparison between our two countries ends, and why the judge’s sympathy for the application is so important.

The question before the judge was whether the circumstances of Covid 19 were so extreme that invoking a national state of disaster under the 2002 Disaster Act justified the measures taken by the government. This is a question all governments and courts will be facing. Good luck to the judges. Countries all over the world will rely on emergency provisions like the South African 2002 Disaster Management Act, which

places the power to promulgate and direct substantial (if not virtual all) 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 in place.

The High Court found that the declaration of a national state was rational. But Davis J was not content with the constitutionality of a number of the regulations made under it.

Before we get on to the rights said to be infringed by the ANC government lockdown, let’s hear it for the other side. According to the government authorities, the COVID 19 pandemic implicates the constitutionally entrenched rights to life[11], to access to health care[12] and an environment that is not harmful[13].   As a result of this, the respondent Minister submitted that “the South African population has to make a sacrifice between the crippling of the economy and loss of lives”. 

The Minister’s submission further was that the regulations could not therefore be set aside [sic]”on the basis that they are causing economic hardship, as saving lives should take precedence over freedom of movement and to earn a living.”

The word “hardship” hardly encapsulates the ongoing economic crisis in South Africa, drought, crime and widespread unemployment.

But there are more visceral, personal issues involved in the challenge which give us pause. The applicants point to the cruel contradiction in forbidding family members to attend a dying relative, but allowing funeral parties to pay obeisance to the corpse.

The applicants also pointed to the irrationality and lack of fairness of the regulations impacting on those operating in the informal sector of the South African economy:

Hairdressers with gloves and other protective gear are forbidden from working whilst taxi drivers continue their business

….a subtle mother and sole provider for her family may have been prepared to comply with all the preventative measures proposed in … the regulations but must now 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. She is stripped of her rights of dignity, equality, to earn a living and to provide for the best interests of her children.

There are many other challenges, similar to ones we have seen in the UK, but this one is particularly pertinent to South Africa, and I dare say a number of other countries under the pressure of food scarcity. The applicants highlight the practicalities (or rather impracticalities) of distributing aid relief in the form of food parcels which brings along another absurdity:

a whole community might have  had limited contact with one another and then only in passing on the way to school or places of employment on any given day prior to the regulations, 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.

There’s more, which gives pause for thought in a wealthy country like ours. The judge notes the losses cased to livelihoods by the restrictions. But he is unsparing on the impact of lockdown on domestic violence in South Africa:

Women and men are beaten and abused by their partners while being compelled by law to stay inside their homes.  They cannot run or escape and are left helpless.

Restrictions that do pass the rationality test, according to the Court, include those related to education, prohibitions against evictions, initiation practices, the closure of night clubs and fitness centres and the closing of borders.

Of course the saving of lives is a supreme Constitutional imperative and one of the most fundamental rights entrenched in the Bill of Rights in the South African Constitution. An equally anguishing conundrum is the resultant choice between “plague and famine” …

The court has now ordered the Minister of Cooperative Governance and Traditional Affairs to review and amend the regulations. The declaration of invalidity has been suspended for 14 days to provide ministers time to review, amend and republish the regulations. During this period, the current Level 3 regulations will remain in place.

The government has since responded, saying that Minister Dlamini-Zuma will meet with Cabinet to review and amend the regulations.

Government has taken note of the judgment delivered by the Gauteng Division of the High Court today, 2 June 2020, declaring the Alert Level 4 and Alert Level 3 Lockdown regulations unconstitutional and invalid. The court suspended the declaration of invalidity for a period of 14 days. This means that the Alert Level 3 regulations remain in operation for now.

The court has further directed the respondent Minister to review, amend and republish the regulations with “due consideration to the limitation each regulation has on the rights guaranteed in the Bill of Rights”.

This challenge has very little chance of surviving in the Court of Appeal. But it is food for thought. In the words of the marvellously named South African judge Fabricius J, applying Roman Dutch law in a previous challenge to the COVID regulations:

The virus may well be contained – but not defeated until a vaccine is found – but what is the point if the result of harsh enforcement measures is a famine, an economic wasteland and the total loss of freedom, the right to dignity and the security of the person, and, overall, the maintenance of the rule of law?