In a strong rebuke of the Minister of Cooperative Governance and Traditional Affairs, and her Director-General, Judge Norman Davis in the Pretoria High Court on Tuesday, 02 June 2020, declared the regulations issued by the Minister in terms of Section 27(2) of the Disaster Management Act to be unconstitutional and invalid.
The Minister has been given fourteen business days to review, amend and republish many of the regulations, in consultation with the relevant cabinet ministers. Failing this, and if the court regards the republished regulations as irrational again, it will be invalid and unenforceable. Judge Davis also ordered the Minister to pay the costs of two of the three applicants.
No doubt, the judgment will be a sobering reminder to the Minister and her colleagues that a despotic, “paternalistic approach, rather than a Constitutionally justifiable approach,” as Judge Davis put it, risks pouring scorn on the Bill of Rights. In a damning assessment of the Minister’s attitude toward her duties under the Disaster Management Act, Davis added; “The starting point was not ‘how can we as government limit Constitutional rights in the least possible fashion whilst still protecting the inhabitants of South Africa?’ but rather ‘we will seek to achieve our goal by whatever means, irrespective of the costs and we will determine, albeit incrementally, which Constitutional rights you as people of South Africa, may exercise.’”
Judge Davis was clear that his judgment did not disagree with the reason for the lockdown regulations nor with the enabling powers that the national state of disaster gave to the Minister as part of Section 27 (2) of the Disaster Management Act. He specifically found that Minister Dlamini-Zuma’s declaration of the national state of disaster was valid, but he agreed with the Applicants that many of the regulations promulgated by the Minister were irrational, and as a result, unconstitutional.
He prefaced his analysis of the Constitutionality arguments by citing; “the exercise of public power must … comply with the Constitution, which is the supreme law and the doctrine of legality, which is part of that law. …It entails that both the legislature and the executive are constrained by the principle that they may exercise no power or perform no function beyond that conferred upon them by law. In this sense the Constitution entrenches the principle of legality and provides the foundation for the control of public power.” [Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) per Ngcobo, J (as he then was)]
How then, should government’s action and objectives be measured against the principle of legality in the Constitution? Here, Davis stated that steps taken should be rational and should achieve a rational objective. This would require a “rationality test” which evaluates the relationship between the means and ends. Specifically, are the means employed rationally related to the purpose for which the power was conferred to the Minister?
The 34-page judgment went further and applied the rationality test to specific regulations. Each test exposed the distressing, irrational and arbitrary nature of the regulations – with many leading to the infringement on constitutional rights such as dignity and equality. Some of the regulations are no longer applicable in Alert Level 3 of the national lockdown, but the judgment insisted that “this does not detract from the Constitutional crisis occasioned by the various instances of irrationality.”
Perhaps more troubling is the possibility that the Minister’s cavalier attitude toward ‘managing’ the national lockdown under the powers given to her, could ultimately result in a number of legal challenges against the Department and the Government – with untold economic consequences to the State. Coincidentally, Judge Davis noted in his judgment that he had been made aware of a number of other pending court applications against the Minister and her department already.
The Minister’s regulations as part of the DMA must now be reviewed, rewritten and returned to the High Court within 14 working days. And as Section 27(3) of that Act states, the power to make regulations and directions “may be exercised only to the extent that this is necessary for the purpose of assisting and protecting the public; providing relief to the public; protecting property; preventing or combating disruption; or dealing with the destructive and other effects of the disaster.” The Minister may, depending on various factors, also lodge an appeal against the judgment which, by process, will delay resolve to the unfortunate circumstances caused by the her actions.
While the regulations have been declared unconstitutional and invalid, suspended for a 14- day period (or longer if an appeal is lodged), Alert Level 3 is still in place. Under this ‘new normal,’ businesses that are permitted to operate during this time are advised to continue ensuring that they are in compliance with the workplace regulations stipulated in the Disaster Management Act, 57 of 2002.
Douw Breed | Attorney | Managing Director
Andries Stander | Attorney | Director