Court gives government 14 days to alter ‘unconstitutional’ State of Disaster rules

3 Jun 2020

In a hard-hitting judgment that found the government had failed to fully consider Covid-19 lockdown regulations, the Pretoria High Court found that while declaring the State of Disaster because of the Covid-19 pandemic was rational, the overwhelming number of regulations are ‘unconstitutional and invalid’.

“… Their [the regulations’] encroachment on and limitation of rights guaranteed in the Bill of Rights contained in the Constitution are not justifiable in an open and democratic society based on human dignity, equality and freedom…” is how Judge Norman Davis ruled on Tuesday 2 June.

And so the regulations for one of the most draconian Covid-19 lockdowns the world over, now in Day 68, fell away because the “overwhelming number” of these rules failed the test of rationality – and failed to show a connection to the objective of slowing or limiting the rate of Covid-19 infection.

It’s a significant win obtained by Reyno de Beer, president of the little-known Liberty Fighters Network, who brought his action against Cooperative Governance Minister Nkosazana Dlamini Zuma, who is responsible for disaster management.

It’s the second klap for government in two days. On Monday, the business organisation Sakeliga successfully challenged the lockdown regulations requiring essential and permitted services to register with the Commission for Intellectual Property and Companies (CIPC).

“No enforcement officer is therefore entitled to demand the production of a CIPC certificate by any business, whatever the nature of the business, and will act unlawfully if he does so or if he or she arrests or fines or takes any action against any person for failing to produce such a certificate,” said that judgment.

Tuesday’s judgment declaring most State of Disaster regulations unconstitutional and invalid allowed Dlamini Zuma 14 days to review, amend or change the Covid-19 lockdown regulations.

That’s important. On 14 June the current State of Disaster ends – it has run the maximum permissible three-month period since its declaration on 15 March.

Without the State of Disaster, the lockdown regulations do not have a foundation, nor does the risk-adjusted strategy of moving from various lockdown levels – or between levels at the district level as government’s hotspot and district model foresees.

The State of Disaster could be extended by one month, possibly repeated, as is allowed under the Disaster Management Act, but the door is now also open for a new State of Disaster declaration – with a new set of regulations that would, hopefully, pass muster.

Or the government may decide on a State of Emergency, a 21-day measure that may be extended by Parliament for no more than three months at a time with a 60% majority in the House from the second extension onwards. But the State of Emergency is also subject to judicial scrutiny.

The government must now go back to the drawing board.

“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,” said Cabinet spokesperson Phumla Williams in a statement in the wake of Tuesday’s judgment. “Cabinet will make a further statement once it has fully studied the judgment.”

While the judgment upheld the ban on evictions and initiations, the closure of South Africa’s borders and the continued shutdown of nightclubs and casinos as in keeping with the overall objective of limiting Covid-19, it is scathing about other regulations.

And that is not an easy step, given not only the contestation between securocrats, micromanagers and constitutionalists, but also because of what effectively is a parallel governance structure around the National Coronavirus Command Council (NCCC), which according to public statements has been taking Covid-19 hard lockdown decisions.

But the judgment is damning, reiterating that the exercise of public power must comply with the Constitution.

For government, the test was whether the means justify the ends, or as the Cogta director-general to whom Dlamini Zuma delegated deposing the court affidavit, put it: “Thus, I submit, with respect, that under the circumstances, the means justify the ends”.

The judge did not mince his words in this regard, saying there was no evidence in the court papers that Dlamini Zuma had at any time considered the regulations’ impact on limiting constitutional rights.

“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 cost and we will determine, albeit incrementally, which constitutional rights you as the people of South Africa, may exercise”.

While the judgment upheld the ban on evictions and initiations, the closure of South Africa’s borders and the continued shutdown of nightclubs and casinos as in keeping with the overall objective of limiting Covid-19, it is scathing about other regulations.

It was irrational to ban hairdressers when a single mother and sole provider, who would have been prepared to comply with all preventative measures, “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.”

Or the case of informal sector workers – from hairdressers, traders, construction workers, street vendors to waste-pickers – who interact less with people on a daily basis than, say attendees as a single funeral. “The blanket ban imposed on them as opposed to the imposition of limitations and precautions appears to be irrational.”

Concerns had also been raised over the care of children and moving between parents living separately.

“And what about the poor gogo who had to look after four youngsters in a single-room shack during the whole lockdown period? She may still not take them to the park, even if they all wear masks and avoid other people altogether.”

The question now is how the government reacts to this judgment. An appeal is always an option. As is compliance with the court-ordered review and amendment of regulations, whether that’s for a one-month extension, or a completely new State of Disaster declaration.

The rules on exercise were “perplexing”, the judgment said. “… (T)o put it bluntly, it can hardly be argued that it is rational to allow scores of people to run on the promenade but were one to step a foot on the beach, it will lead to rampant infection.”

Judge Davis said the Cogta minister’s lawyer was “constrained to concede” that even if government efforts to provide relief functioned optimally, “monetary recompense cannot remedy the loss of rights such as dignity, freedom of movement, assembly, association and the like”.

If a measure was not “rationally connected” to a permitted objective, that resulted in the measure being at odds with the Constitution, and the possible limitation of rights except the rights to life, dignity and the right not to be tortured or subjected to cruel and inhuman punishment.

That Dlamini Zuma, as the sole respondent in this matter, has been found lacking by the courts should get her dismissed, or at least sanctioned.

But that’s not going to happen. Dlamini Zuma, who by a hair’s breadth lost the 2017 Nasrec ANC president elections, represents a powerful faction within the governing party, and continues to enjoy support, not only of the ANC Women’s League.

The ANC has rallied around Dlamini Zuma, as have ANC MPs and at least two parliamentary committees, to deflect as “racist”, “sexist” and “misogynist”, the criticism over how she’s handled the regulation-making, and in particular the flip-flop over the tobacco ban that was meant to be reversed at lockdown Level 4 already but has stayed put even now on lockdown Level 3.

As far back as 23 May, the ANC issued a statement in support of Dlamini Zuma:

“It must always be remembered that the decisions of Cabinet and the NCCC are collectively taken, and should never be individualised. It is entirely unacceptable that there are evidently wedge drivers, who are in the service of certain businesses. They maliciously attack and undermine our leaders.”

But Dlamini Zuma is the minister in charge of national disaster regulations, and by law the minister responsible for managing the State of Disaster. And, as such, criticism will come her way.

The question now is how the government reacts to this judgment. An appeal is always an option. As is compliance with the court-ordered review and amendment of regulations, whether that’s for a one-month extension, or a completely new State of Disaster declaration.

What will happen, against the backdrop of the contestation of power between securocrats, micromanagers and constitutionalists at Cabinet, will shape South Africa’s constitutional democracy. DM

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