This week’s high court judgment on the rationality of lockdown regulations emphasised the necessity for the government to strike a delicate balance between the rights of citizens to maintain a livelihood, as much as it is crucial to protect citizens from the effects of Covid-19, writes attorney Bulelwa Mabasa.
On Tuesday, Judge Norman Davis handed down a judgment in the Pretoria High Court dealing with aspects of the Disaster Management Act (DMA) No. 57 of 2002.
The judgment dealt with the constitutionality of what are colloquially termed as the “lockdown regulations”, which were promulgated by Minister Nkosazana Dlamini-Zuma.
The judgment by Davis J, in relation to the “lockdown regulations”, is far-reaching for numerous reasons.
In this case brought by Reyno de Beer and an organisation called Liberty Fighters Network,the applicants disputed the validity of the declaration of a national state of disaster in the first instance.
It is important to highlight that the court held that the imposition of a state of disaster was rational and justifiable in law.
It held that the state 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…”
There can be no question, therefore, that the lockdown was an important and responsible intervention by the president.
It is equally important to emphasise that the readiness of the public health sector to accommodate a high number of infected persons, including the availability of quarantine facilities, were crucial in preparing the country for an adequate response.
The government has already indicated that it has taken the necessary steps, some of which have included the conversion of stadiums and hotels into quarantine facilities.
The purpose of the lockdown was effectively to flatten the curve in order mitigate the spike in infections that would overburden the public health system.
The latter was a significant milestone achieved by the National Coronavirus Command Council.
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The South African wider society, including business, labour and public institutions, rightly rallied behind the decision to impose a hard lockdown, which by all accounts was a success.
In the De Beer case, however, the applicants argued that the regulations were unlawful for want of prior approval by the National Council of Provinces (NCOP), as many of the functional areas described in Section 27(2) of the DMA are areas of provincial legislative competence, an argument which was not accepted by the court.
The court held, correctly in my view, that due to the urgent nature of the Covid-19 regulations they could lawfully be distinguished from the regulations governed by Section 59(4), which require prior approval by the NCOP. The court, therefore, held that the regulations cannot be invalidated on this ground.
While parties such as the Democratic Alliance have argued that the lockdown should not be implemented outside of parliamentary scrutiny, the court in this instance was sufficiently persuaded that lockdown regulations need not be subjected to prior parliamentary approval.
The applicants questioned the substance and rationality of the Level 3 regulations published on 29 May.
The crux of the applicants’ case is that the minister ought to have allowed all public gatherings to be lawful and permitted the reopening of all businesses, services and shops, subject to certain conditions.
It is also important to point out there are regulations which have survived the court’s scrutiny and includes those dealing with evictions, initiation practices, and gyms and casinos from reopening.
In other words, not all of the lockdown regulations have been invalidated as being irrational.
The court reiterated a well-established principle of the rationality test established in the Pharmaceuticals case (Pharmaceutical Manufacturers Association of South Africa: In re: Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC)), namely that the regulations must be rationally related to the purpose for which the power was conferred and that constitutional rights may only be limited in terms of Section 36 of the Constitution.
A lack of rationality would result in the regulations not constituting a permissible limitation of a constitutional right.
In other words, if the purpose of the lockdown, i.e. to flatten the curve and to prepare the healthcare system to be enabled to cope with the spike in the number of infections, it would be irrational then to apply regulations the effect of which would be to prefer the opening of certain businesses over others, especially where applying health protocols would be possible.
It would equally defy logic to prefer the livelihoods of others, for reasons that are not connected to health imperatives and the purpose of the regulations.
While the director-general (DG) of cooperative governance and traditional affairs argued that the regulations cannot be set aside 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 court agreed with the DG’s contention, but held that the regulations go beyond the issue of saving lives, especially as they relate to, for example, the holding of night vigils, and visiting sickly family members.
It must be stated that the court merely indicated some of those regulations that have irrational consequences, but did not seek to conduct a full assessment of each and every regulation that had irrational consequences.
The court stated further that the blanket ban on gatherings is irrational and unconstitutional, and contrary to the rights to assemble and to freely associate in terms of Sections 17 and 18 of the Constitution.
The essence of this judgment is that it is crucial for the government to strike a delicate balance between the rights of persons to maintain a livelihood, as much as it is crucial to protect citizens from the effects of Covid-19, in a manner that seeks to minimise harm to all individuals and not to implement regulations that have no rational basis.
Doing so necessitates a balanced approach, but one that bears rationality and is driven by science and available data – keeping in mind the World Health Organisation protocols.
The phased approach in reopening the economy is well understood, but decisions such as the reopening of churches with a limit of 50 people, for example, leads to irrational consequences when a sole proprietor, who is a hairdresser, is not allowed to continue to make a living, even though the same man or woman is able to employ necessary health protocols, even more than a 50-person gathering is able to do.
This judgment also treads a careful balance on the separation of powers, which has been debated in the post-constitutional era as having become a grey area.
The court correctly remitted the matter back to the minister, to review the lockdown regulations in their totality.
The court recognises that it itself is precluded from usurping the powers of the minister by rewriting the regulations.
Importantly, we are reminded that even under a state of disaster, (which is not a state of emergency) constitutional rights are not suspended, and that decisions made by the executive must be rational, fair, reasonable and rationally connected to the purpose with which they are made.
Ultimately, the nation rallied behind the president’s call when the lockdown was imposed.
This was based on trust and a collective understanding that the nation’s commitment to protect lives was paramount.
As the president and his executive apply their minds to the reopening of the economy, a science-based approach must remain the guiding force.
The safeguarding of lives and the implicit trust that has been forged in the last two months cannot be eradicated by political expediency.
Bulelwa Mabasa is an attorney and director
