Do Covid-19 regulations pass the constitutionality test in SA?
The South African government’s approach to addressing the threat of the coronavirus (Covid -19) pandemic has created many unanswered questions.
The government’s approach seems to be based on the approach that many countries around the world have adopted. But any approach by the government must fit within the legal framework of South Africa. With its "risk-adjusted strategy" there are constant changes, but at the time of writing this paper, there appears to be little, if any, clarity on:
1. Why the pandemic could not have been dealt with in terms of existing legislation other than the Disaster Management Act, 2002 (the DMA) which seems generally reserved for national disasters having to do not with pandemics but with climate-related and human-induced disasters;
2. Why, even under the DMA, it was necessary to declare a national state of disaster (which has triggered what appears to be a myriad violations of constitutional rights, both by ministerial regulation and by the conduct of law enforcement officials) while the DMA does contemplate dealing with a disaster without declaring a national state of disaster;
3. Whether there is any rational connection between some of the government’s regulations and law enforcement officials’ conduct, on the one hand, and the purpose of the government’s intervention as clearly stated in the DMA;
These are the issues I shall discuss in this relatively brief analysis.
South Africa is a Constitutional State. The Constitution of the Republic of South Africa, 1996 (the Constitution) is the Supreme Law of the country. Law or conduct that is inconsistent with the Constitution is invalid. Not only is this truism stated in s 2 of the Constitution itself, but the highest court in South Africa – the Constitutional Court comprising 11 Justices but quorating with 8 – has also emphasised this truism in many decisions.
The national executive of government (namely, the President, the Deputy President and a cabinet of 28 Ministers) has powers, accountability and responsibilities conferred on it by Chapter 5 of the Constitution. For example, 1. the President has the obligation to “uphold, defend and respect the Constitution as the supreme law of the Republic” [s 83(1)(b)] and, among others, the power to make “any appointments that the Constitution or legislation requires the President to make, other than as head of the national executive” [s 84(2)(e)]; the Deputy President’s job is to “assist the President in the execution of the functions of government” [s 91(5)]; and members of cabinet are accountable “collectively and individually to Parliament for the exercise of their powers and performance of the functions” assigned to them by the President [s 92(1) & (2)].
Under current Covid-19 induced circumstances in South Africa, a body known as the National Command Council (NCC), apparently appointed by the president to lead the fight against Covid-19, appears to be determining their implementation. The question that arises is in terms of what constitutional power government policy can be delegated by the president to a body that appears to have no legitimate legislative or constitutional existence. Where in the Constitution, or elsewhere, does the president source the power to delegate executive functions to the National Command Council comprising only some but not all the 28 ministers?
If Cabinet Ministers are accountable “collectively and individually to Parliament”, how effectively can Parliament hold the cabinet collectively accountable when 8 cabinet Ministers, and the Deputy President, do not form part of a body that seems to be making government policy decisions?
A decision that is taken by the president must be in writing if taken in terms of legislation or if it has legal consequences [s 101(1)]. A written decision by the president must be counter-signed by another cabinet member if the decision concerns a function assigned to that other cabinet member [s 101(2)]. Have these requirements been met in the appointment by the president of the National Command Council? If so, what piece of legislation, or constitutional provision, did he cite as conferring upon him the power so to do?
Typically, and in order to avoid having to go through the cumbersome and time-consuming process of passing legislation some pieces of legislation confer a power to issue regulations on the minister responsible for the portfolio to which the empowering legislation relates.
So, instead of going through the cumbersome process of passing or amending legislation, a minister can overnight issue regulations in terms of the empowering piece of legislation that is already in place. So, for example, s 27(2) of the DMA confers on a minister designated by the president to administer the DMA [in this case COGTA Minister] the power to issue regulations and directives after consultation with the minister in whose portfolio the subject of such regulation or directive falls. There is no need (as would be the case if legislation were to be passed) for public consultation, debate in both the National Assembly and the National Council of Provinces, and signature by the president, among other processes.
Let us now consider how the conduct of the president, the regulations issued in terms of the DMA, and the conduct of law enforcement officers measure up to the law standard. I shall do this by answering the 4 questions listed in the introduction.
WHY THE DMA? Let us first lay some foundation. Within a month of the president’s announcement of the declaration of the national state of disaster on live television, more than 50 sets of Covid-19 related regulations, directives, notices and directions were published nationwide in South Africa. That number has risen exponentially. Even lawyers are struggling to keep up with it all.
The first of these was published on 15 March 2020 under Government Gazette 43096. By it, the COGTA Minister declared a national state of disaster in terms of s 27(1) of the DMA. Within three days, there followed a set of regulations under Government Gazette 43107 of 18 March 2020, and within a week thereafter a set of amendments of those regulations was issued on 25 March 2020 and 26 March 2020 introducing more restrictive measures in what is commonly known as a national lockdown.
More restrictive amendments were published on 2 April 2020. Then followed more on 16 April and 20 April 2020. In between all these, regulations, directions and notices have been issued by various Ministers, State-Owned Enterprises, and other organs of state. On 29 April 2020, South Africans were hit with yet another 40-page set of what many perceive to be even more draconian regulations, repealing previous regulations without really repealing them. Regulation 2(3) of these regulations says in this regard: “(3) Despite the repeal of the regulations referred to in subregulation (1), all directions issued in terms of those Regulations shall continue to apply unless, varied, amended or withdrawn by the Cabinet member responsible for such directions.”
But is this consistent with s 27(5) of the DMA? Specifically, can regulations lawfully be extended by a minister by invoking a direction issued pursuant to such regulations subject only to the minister varying, amending or withdrawing such direction? These regulations are promulgated in terms of s 27(2) of the DMA for the purposes listed in s 27(3). They owe their existence to the declaration of the state of disaster. Absent a state of disaster, one cannot continue to have applicable regulations, and directions issued in terms of those regulations.
But there appears to be another problem with this regulation 2(3). Section 27(5) tells us that the national state of disaster lapses 3 months after it has been declared, unless the designated Minister (COGTA and no other) either terminates the state of disaster or extends it before expiry of the 3 month period for one month at a time.
There is no room in that section for the extension of the state of disaster by keeping in force directions and repealed regulations indefinitely at the discretion of any Minister subject only to such Minister varying or withdrawing such directions, without extending the national state of disaster itself. So, right at the beginning of the 29 April 2020 regulations, one gets a sense of just how overreaching they seem to be.
The national lockdown severely restricts the movement of people and the purchase of goods and services. The result is severe disruption of business and service delivery and, with that, the economy has virtually come to a halt. About this there can be no sensible debate. This is arguably done under the overbroad provision in s 27(2)(n) of the DMA which confers on the COGTA Minister the power to issue regulations or directives authorising the taking of “steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster”.
The question that arises is whether this disruption meets the rationality and constitutionality test in terms of South African law. Many people, myself included, will say some disruption of life as we know it is necessary in order to save lives. Very few will argue with the need to save lives. But the question is not whether or not it is necessary to subject the entire nation to such considerable disruption of people’s economic and recreational lives, which in itself creates a significant moral dilemma; the more vexed question is whether such considerable disruption is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
From what we are reliably told by the World Health Organisation (WHO) and subordinate legislation, the elderly, the young children and individuals with preexisting chronic diseases are categories of persons that are most at risk of a flu virus. So, why target the entire population?
The government has offered no clear explanation that would shed light on how it arrived at a rational connection between, for example, the right to freedom of trade, occupation and profession (s 22), on the one hand, and the spread of Covid-19 on the other. Some service providers to the government have been told that they will not be paid for services rendered before declaration of the national state of disaster until the national lockdown has been lifted. This makes the economic situation worse as many small businesses may go out of business because of lack of payment for services already rendered on top of their normal business having slowed down or halted completely.
What rational connection does such a callous decree have to “flattening the curve” of Covid-19 infections? Although the latest regulations of 29 April 2020 have now banned the sale of tobacco products, the question remains unanswered: what rational connection was there between allowing the sale, dispensing and transportation of cigarettes (a known carcinogen and about which WHO has recently cautioned that smoking may increase one’s risk of getting a severe case of Covid-19) on the one hand, and the protection of the public from Covid-19 infections on the other, while persisting in a total ban on the sale, dispensing and transportation of liquor in the hospitality industry (except for the export market)? According to the US Centres for Disease Control and Prevention (the CDC), even those people who do not smoke are at significant health risk around cigarette smoke. There is no risk-free exposure to second-hand smoke.
The CDC says since 1964, 2.5 million adults who were non-smokers died because they breathed second-hand smoke. So, what rationality was there for the South African authorities allowing the sale, dispensing and transportation of cigarettes while at the same time claiming to be implementing measures aimed at “flattening the curve” of Covid-19 infections, a disease which we are told attacks the lungs and to which the World Health Organisation says smokers are particularly vulnerable? Assuming that the IHRA is the existing legislation that is capable of dealing adequately with the threat of Covid-19, the remaining question is whether there are nonetheless “special circumstances” that warrant a declaration of national state of disaster under the DMA.
In short, the questions that are usually posed in a rationality test are these: “Is there a rational connection between the intervention, on the one hand, and the empowering provisions in terms of which it was taken, on the other?” This is the question usually posed when the intervention in question is pursued in terms of some or other piece of legislation or prescript. In this case, that legislation is the DMA. As regards the conduct of officials deployed to enforce the intervention, the test will be whether such conduct gives effect to the regulations. Where there is no empowering provision for the intervention, the intervention will be unlawful and may be set aside on application to the high court. It is now settled law that no person may exercise a public power or perform a public function beyond that conferred upon him or her by law.
Arguably, that argument could be shoehorned into s 27(2)(n) which confers a power on the COGTA Minister to do pretty much anything she considers “necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster”. But creating space for more beds at hospitals by banning liquor sales is not only a stretch; it also trenches on the trade rights of many in the hospitality industry and may likely not pass the “justification analysis”. Also, the argument that SARS needs the revenue that accrues to it from cigarette sales, dispensing and transportation is not rationally connected to the purpose of the interventions under the DMA.
Some people may argue that alcohol creates a greater risk than cigarettes? Firstly, a greater risk of what, one may ask. Secondly, there is no official study of which I’m aware that has proven that people who drink alcohol are by virtue of that fact alone more susceptible to contracting Covid-19 than people who smoke cigarettes. So, what was the rational connection between the total lifting of the ban on the sale, dispensing and transportation of cigarettes and the total ban on the sale, dispensing and transportation of liquor, on the one hand, and the achievement of any of the purposes listed in s 27(3) of the DMA? How does the total ban on the transportation of liquor within South Africa protect the public from Covid-19, but allowing transportation of liquor for export purposes does too?
In times of national crises, often it is the entrenched rights of citizens that are dispensed with in the form of invasive government interventions aimed, at least ostensibly, at weathering the temporary storm. But in the final analysis, human nature tends to prevail over initial good intentions. A fleeting flirtation with new powers intended for addressing a temporary problem may end up taking on the form of an oath “till death do us part”.
Income tax, lest we forget, was introduced as a temporary measure in a war effort. Who is to say that the temporary measures now adopted by the government ostensibly to “flatten the curve” of Covid-19 infections – including censorship, restriction of movement and trade bans – will not also stay with us for many years beyond the Covid-19?
In South Africa there have been witness accounts of public officials verbally abusing people at a prayer meeting; forcing people to perform push-ups in public; a senior military man reportedly warning that law enforcement agencies will not tolerate insults on the President; people being chased by law enforcement officers for venturing out of their homes to shop for food; people within their fenced properties being ordered by the military to go inside their houses; a Minister in government ordering the arrest of a man for going shopping without a permit, and then later arguing that this was taken out of context; the military reportedly killing a man for allegedly breaking lockdown regulations.
These were all done in the name of a temporary assault on the Covid-19 ostensibly in terms of regulations promulgated under the DMA. If we are not vigilant as citizens, there is a danger that these abuses may be with us for a long time to come. Governments around the world have a moral and legal obligation to protect citizens from pandemic health hazards.
The WHO has come up with universally accepted protocols for this. South Africa has incorporated these protocols as schedules in its own Act of Parliament known as the International Health Regulations Act, 28 of 1974. But the government has chosen to declare a national state of disaster in terms of a different piece of legislation, and regulations conferring far-reaching powers on law enforcement officers have been promulgated thereunder. It falls upon us all to ask the hard questions, beginning with: why this law? Why not the other law? And what is the rational connection between this measure and the stated purpose of the empowering law?
* Vuyani Ngalwana SC is a lawyer. This is an abbreviated version of a longer paper published on his blog, Anchored In Law