Why the judgment on Covid-19 lockdown regulations must be challenged
De Beer and the Liberty Fighters Network brought their application claiming that the regulations, as set by Minister of Co-operative Governance and Traditional Affairs Nkosazana Dlamini Zuma, encroached on and limited their rights as contained in the Bill of Rights in the Constitution.
In his judgment, Judge Norman Davis found that the lockdown regulations did not satisfy the rationality test and were not justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated in Section 36 of the Constitution.
In his reaction, De Beer urged the government not to appeal this sentence. He is wrong and his comments show that he does not comprehend what one would call judicial overreach.
The disaster management regulations had to be crafted hastily to be ready for the Covid-19 pandemic in order to save lives. Admittedly, some regulations may have overstepped the intention of the original legislation.
Having had a cursory read of Tuesday’s judgment in the De Beer & Other vs Minister of Co-operative Governance and Traditional Affairs case, I would argue that the case is appealable because:
(i) Another judge/court may have found differently;
(ii) Given the gravitas of the order the Constitutional Court should be given an opportunity to ratify the order, or order otherwise;
(iii) The cost order in itself is unwarranted as the minister did not pass the regulations with malice;
(iv) The judge, with due respect, says the entire regulations are unconstitutional except the ones listed. He ordered that the minister must sit with the Cabinet to figure it out. This is unfair (9.3 read together with 10.2), as how is the minister to know what she must fix if the court does not say what it finds faulty?;
(v) The judgment amounts to judicial overreach as it at times suggests what options the state should or could have exercised when drafting the regulations, which are within the purview of the executive. Critically it does not explain why the regulations are irrational;
(vi) The court also tested the “rationality” of some of the regulations by considering whether or not there was a rational connection between the intervention, on the one hand, and the purpose or intended outcome for which it was taken. It found that the regulations of levels 4 and 3 are not rationally connected to the objectives of slowing the rate of infection. But the court makes a mistake by ignoring the fact that, for example, the limitation on freedom of movement was in the interest of not spreading the virus; and
(vii) It is better to appeal judgments (entire) that affect legislation where its constitutional status has been declared invalid, as it is the Constitutional Court after all which has the final pronouncement on such scrutiny, even if such provisions (level 3 regulations) were not part of the heads of argument or judgment.
Effectively what we have here is a challenge to the constitutionality of specific legislation, read together with the court order. It would appear that all the regulations issued by the minister since March 18, 2020, in terms of the Disaster Management Act have been declared unconstitutional, according to this court:
(i) Due consideration was not given to the limitation each regulation has on rights guaranteed in the Bill of Rights;
(ii) The process in (i) must be done after consultation with the relevant Cabinet minister/s and;
(iii) That the regulations unlawfully limit the rights of citizens which are guaranteed in the Bill of Rights contained in the Constitution. That many of the regulations are not justifiable in an open, democratic society based on human dignity, equality and freedom as contemplated in Section 26 of the Constitution; and
(iv) That the minister must review, amend and republish the regulations;
The following regulations are exempted from being declared unconstitutional in terms of the order, namely regulations 36, 38, 39(2)(d) and (e) and 41 of the regulations promulgated in respect of alert level 3.
The regulations in relation to the tobacco ban are excluded from the order as that is being dealt with in separate litigation.
The minister now has 14 days, or such longer period granted by the court provided that there are good grounds shown for such extension, to report compliance to the court.
For the reasons articulated here, an appeal by the state can succeed. The current alert level 3 regulations will, however, remain in operation during this period. It’s in the interest of our nation, government and constitutional certainty that this judgment must be appealed.
* Advocate Mohamed is an MP and former head of the justice department in the Western Cape.
** The views expressed here are not necessarily those of IOL