BY Aslam Moosajee AND Joshua Davis
South Africa: Commentary on Pretoria High Court judgment declaring the lock-down regulations invalid
On 2 June 2020, Judge Norman Davis handed down judgment in Reyno Dawid De Beer and Another v the Minister of Cooperative Governance and Traditional Affairs, declaring the regulations promulgated in terms of section 27(2) of the Disaster Management Act, 2002 unconstitutional and invalid. Judge Davis suspended the declaration of invalidity for a period of 14 days, during which time the Minister of Cooperative Governance and Traditional Affairs, after consultation with other relevant ministers, was ordered to amend the regulations “with due consideration to the limitation each regulation has on the rights guaranteed in the Bill of Rights contained in the Constitution”.
While many citizens are likely to be pleased with Judge Davis’ decision, it is likely, in our view, that the judgment will be overturned on appeal.
The application was heard on 28 May 2020, the same day the alert level 3 regulations were promulgated. The alert level 3 regulations had therefore superseded those regulating alert level 4 and, as Judge Davis acknowledged, the alert level 3 regulations had not been placed before him.
In our view, the question of the validity of the alert level 4 regulations had therefore become moot, and the question of validity of the alert level 3 regulations could not properly be decided if the attack relating to those regulations were not properly pleaded on the papers.
The court correctly noted that the exercise of all public power is subject to a rationality requirement and that the role of a court, in assessing rationality, “is not to determine whether some means will achieve the purpose better than others but only whether the means employed are rationally related to the purpose for which the power was conferred”.
However, in assessing the rationality of the regulations, the court appeared to apply a different standard. At times, the court considered whether a specific regulation was “rational” relative to what was permitted by other regulations. For example, the court held that it was “irrational” for minicabs to be permitted to operate, while hairdressers could not, and for people to be prohibited from visiting their ailing loved ones, while attendance at a funeral was permitted.
Elsewhere, the court appears to have assessed the reasonableness rather than rationality of the regulations. For example, the court held that it would be more appropriate to regulate night vigils, by imposing restrictions on how such vigils can be conducted, than to ban night vigils entirely.
In our view, this constituted a misapplication by the court of the test for rationality.
A further peculiarity with the courts’ rationality assessment is that the regulations relating to education, prohibition against evictions, initiation practices, the closure of night clubs and fitness centres, and the closure of borders, were, without explanation, held to be rational.
Declaration of invalidity
The court declared the regulations invalid, with the few exceptions described above, without considering the constitutionality of each regulation. Because the court did not hold that the act of promulgating the regulations was itself unconstitutional, our view is that without an assessment of each of the various regulations, a court could not declare the regulations invalid in their entirety.
Various constitutional law experts have expressed views similar to our own about the prospects of this judgment being overturned on appeal. On 4 June 2020, Minister Jackson Mthembu announced that government would appeal the decision. Minister Mthembu also correctly explained that, once government notes an appeal of the decision, the declaration of invalidity will be suspended until such time as its correctness is determined by the appeal court. It is hoped that the appeal will quickly be heard in order to avoid the uncertainty that this judgment has likely created.
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