COVID-19: Constitutional Conundrums as lockdown court challenges mountPHOTO: Ashraf Hendricks/GroundUp

COVID-19: Constitutional Conundrums as lockdown court challenges mount

Comment & Analysis

Since the declaration of the National State of Disaster on 15 March 2020, people living in South Africa have been thrown into a flux of unpredictability and legal uncertainty. We now find ourselves in an even more precarious position after a recent Pretoria High Court judgment declared the regulations under alert levels 3 and 4 of South Africa’s COVID-19 lockdown invalid and unconstitutional.

Government has since applied for leave to appeal.

The judgement in De Beer v Minister of COGTA handed down on 2 June 2020 refers to a conundrum of choice between “plague and famine”, aptly capturing the despair the COVID-19 pandemic has created for many people.

What is constitutionally required, however, is a balance between the steps taken to protect the right to life and health, with the least possible infringement on other constitutional rights and fundamental freedoms.

What was the issue in the case?

The Liberty Fighters Network, a voluntary association that says it fights for the right to equal justice for all, brought an urgent court application to challenge the declaration of the national disaster and the regulations published in terms of the Disaster Management Act.  According to Judge Norman Davis, the declaration of the National State of Disaster was rational. However, he found the regulations published on alert Level 3 and 4 “in a substantial number of instances” are not rationally connected to the objectives of slowing the rate of infection or limiting the spread of COVID-19. He also notes the government’s “paternalistic approach, rather than a Constitutionally justifiable approach” to the lockdown measures.

The Disaster Management Act (DMA) enables the Minister of Cooperative Governance and Traditional Affairs (Cogta), Dr Nkosazana Dlamini-Zuma, to make regulations. The Minister may only exercise this power –

“to the extent that this is necessary for the purpose of

(a) assisting and protecting the public;

(b) providing relief to the public;

(c) protecting property;

(d) preventing or combating disruption or

(e) dealing with the destructive and other effects of the disaster.”

These are quite broad scenarios, rightfully so because of the varying forms disasters can take and the variety of measures that may have to be taken to address their effects. What is however absolutely certain is the legal principal that in every instance where the power to make a regulation is exercised, this must be rationally related to the purpose for which that power was conferred. Further, where the exercise of public power infringes or limits a constitutionally entrenched right, the test in terms of section 36 of the Constitution is whether such a limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

The judge found various lockdown regulations to be irrational. However, his application of the rationality test appears to be somewhat peculiar. Instead of assessing each regulation individually and whether it was rationally related to the purpose of the legislation, he compares the regulations to each other. Some examples mentioned include the disparity in the two situations of being unable to visit a loved one on their death bed, but 50 people may attend their funeral; the impact on hairdressers and caregivers who may be able to comply with social distancing measures whereas taxis are allowed to freely operate; and the arbitrary limitation on the degree of the familial relationship to a deceased to attend a funeral.

The judgment notes what is called an “absurdity” such as denying people the ability to earn an income while maintaining minimum social contact, but allowing them to queue in large numbers for food.  Of course, the regulations themselves do not permit people to gather in large numbers, but this is the consequence of the government’s porous attempts at providing food security to those in need whilst maintaining social distancing. The social relief programs have been poorly rolled out, often diverted to corrupt ends, or shamelessly exclude some of the most marginalised members of our society like undocumented migrants.

Judge Davis appears to use a blanket approach to decide that there are many instances of irrationality in the regulations. However, there are some regulations which (he deems) are fine. This includes the regulations relating to the prohibition on evictions, initiation practices, the closure of night clubs and fitness centres, and the closure of borders.

The judgment did not deal with the regulations issued by various other ministers as these were not before the court, so it would appear these regulations should stand as they are, but are also subject to scrutiny against the rationality test should they be challenged. These include the Social Development regulations, which do not allow for processing of new applications for SASSA disability grants. These regulations are unlikely to pass constitutional muster because they leave disabled persons and parents of children with disabilities with no assistance.

Last month, in another case Mohamed v the President, the High Court tested the lockdown regulations from a different perspective and dismissed an application to have the ban on religious gatherings set aside. The court found that the ban was neither unreasonable nor unjustifiable. The court relied on an earlier judgement in the case Minister of Home Affairs v Nicro, which found: “A legislative choice is not always subject to courtroom fact-finding and may be based on reasonable inferences unsupported by empirical data. When policy is in issue it may not be possible to prove that a policy directed to a particular concern will be effective. It does not necessarily flow from this, however, that the policy is not reasonable and justifiable. If the concerns are of sufficient importance, the risks associated with them sufficiently high, and there is sufficient connection between means and ends, that may be enough to justify action taken to address them.”

In the De Beer judgment, the court gave the Minister of COGTA fourteen court days to remedy the regulations. On 10 June 2020, the Minister filed court papers to begin the appeal process, thereby suspending the judgment.

This adds to the host of legal challenges in the pipeline which go to the root of the legal dilemma we find ourselves in. These relate to the composition of the decision-making body – the National Coronavirus Command Council – responsible for taking decisions governing people’s social, economic and personal lives and the Constitutional powers of Parliament and the Executive.

Pending Legal Challenges to the NCCC

One such legal challenge is that of the Helen Suzman Foundation that approached the Constitutional Court directly to challenge the formation of the NCCC and to question its powers to enact legislation under the DMA. The HSF draws on the role Parliament has in passing legislation and how in this context it has failed to fulfil its legislative obligations under section 43 and 44 of the Constitution. It argues that instead of relying on the DMA and subsequent regulations made by the executive, parliament ought to have passed legislation that specifically deals with the immediate and longer term threat posed and harm caused by COVID-19. The HSF argues that only Parliament has the ultimate authority to pass legislation regulating state action, which encompasses a process of accountability, multi-party representation and open democracy.

In another case brought by the Democratic Alliance in May, the party argued that section 27 of the Disaster Management Act is an unconstitutional delegation of Parliament’s legislative powers to the executive.

The origin and formulation of the National Coronavirus Command Council has been a mystery both in law and reality. In another court challenge, a group including students from UCT and other members of the public brought an urgent application in the Cape Town High Court challenging the constitutionality of the NCCC.

Up until now, there has been no clarity on how the Command Council was constituted, who the members are or what the terms of membership or powers are. In responding to questions posed in Parliament, the Minister in the Presidency has said that the NCCC was established as a committee of cabinet at a cabinet meeting held on 15 March 2020 and comprises the President, Deputy President and various ministers. The vagueness around the NCCC is problematic on many levels, especially considering the fact that section 195 of the Constitution requires that public administration be accountable and transparent by providing the public with timely, accessible and accurate information.

Parliament clearly envisioned the need for a coordinating body, with advisory and recommendatory powers. The DMA provides for several structures to deal with a disaster, including an Intergovernmental Committee on Disaster Management (section 4) comprising mainly executive officials. It also provides for a National Disaster Management Advisory Forum (section 5) comprising a broad range of stakeholders. However, it remains unclear whether an Advisory Forum exists in the form envisioned and prescribed by the DMA.

According to the DMA, the Advisory Forum ought to have included relevant ministers; municipal and provincial officials; organised business; organised labour; traditional leaders; medical organisations; non-governmental organisations and relief agencies; institutions of higher education; representatives of organisations representing women, children, the elderly and people with disabilities. The Forum has the power to make recommendations to the Intergovernmental Committee on the disaster management framework – which, not surprisingly, also requires public consultation.

What we do know is that the NCCC is advised by the Ministerial Advisory Committee (MAC) which consists of leading scientists and health experts. Further that the NCCC has undertaken ad hoc consultations with various sectors.

Given the spate of social compact processes in the not so distant past, and the outcry of civil society for a representative voice on decision-making bodies the operation of the NCCC brings into question government’s commitment to the open engagement such social compact processes requires.

 Public Participation and the Way Forward

Where the Minister did publish draft lockdown regulations, the public were given 48 hours to respond. Two days later the regulations were promulgated. So, it is hardly surprising that the 70 000 submissions received could not be thoroughly reviewed.

Whilst there have been many instances of poor public engagement, an example that stands out can be found in the education sector. Initially, the Minister of Education had announced that the phased re-opening of schools would begin on 1 June 2020. However, in the face of outcry from unions, civil society organisations, learners and their families, the Minister took an about-turn after finally realising that such a decision required the input of those most affected. In a very belated press briefing, less than 24 hours before schools were meant to reopen, the Minister announced that the re-opening would be postponed by a week. She conceded that this was made necessary by the need to consult and meaningfully engage stakeholders.

The COVID-19 pandemic has catapulted the world into unknown legal terrain, which is why it is more crucial than ever before that the structures of constitutional democracy remain intact and that the basic values and principles of public administration are adhered to. The De Beer case may well be overturned on appeal, but it provides a critical opportunity for government to redirect and base its decision-making processes in dealing with the pandemic with transparency and participation.

*Deochand is an attorney and Mafuma and Baduza are legal researchers at Section 27.

Note: Spotlight is published by SECTION27 and the TAC, but is editorially independent, an independence that the editors guard jealously. Spotlight is a member of the South African Press Council and subject to the South African Press Code.

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