Lacking rationality, state errs on side of arrogance towards judicial scrutiny

Appeal against judge’s scathing ruling is likely because the government refuses to name its mistakes

Over a fortnight ago President Cyril Ramaphosa admitted that some of the actions taken by the government in response to Covid-19 had been “contradictory” and “poorly explained”, and their enforcement sometimes “inconsistent and too harsh”.

In an address that announced that SA would move to alert level 3 after two months of lockdown, the president did not identify which of the state’s various controversial regulations he was referring to, but did promise that the actions taken by the state were aimed at safeguarding the lives of all South Africans.

Yet on Tuesday the Pretoria high court ruled that, despite Ramaphosa’s assurances the regulations promulgated by co-operative governance & traditional affairs minister Nkosazana Dlamini-Zuma in respect of alert levels 4 and 3, “a substantial number of instances are not rationally connected to the objectives of slowing the rate of infection or limiting the spread thereof”.

In an often scathing ruling, judge Norman Davis struck down the regulations, formulated by the government under the Disaster Management Act, as unconstitutional and gave Dlamini-Zuma two weeks to “review, amend and republish” some of them. “The deficiencies in the regulations need to be addressed by the minister by the review and amendment thereof so as to not infringe on constitutional rights more than may be rationally justifiable,” Davis said.

The Cabinet said it was studying the judgment and would respond once it had considered it. Constitutional law expert Phephelaphi Dube believes the government will appeal.

“Aspects of the judgment require further legal clarity, which an appeal court will no doubt provide, Dube said.

“But the real problem is that the Disaster Management Act doesn’t envisage a pandemic, so there is a lack of proper legislative guidance for how the state can respond to the pandemic in a manner which properly balances out all constitutional considerations,

“However, the judgment is still an important iteration of the need for public power to be exercised rationally.”

It is apparent from a reading of the judgment that the government did itself no favours in the way it responded to the litigation that spawned Davis’s ruling on an application launched by Reyno de Beer and an organisation called Liberty Fighters Network during level 4 of the lockdown.

They asked the court to strike down as unconstitutional the declaration of a national state of disaster and all the regulations under it, on the basis that the government’s response to the Covid-19 pandemic was a “gross overreaction” — an argument Davis rejected.

Instead, he focused his critique of the state on what he found to be the irrationality of a number of the lockdown regulations issued by Dlamini-Zuma.

It was irrational, he said, that people were not allowed to visit a dying family member who needed comfort, yet 50 people could then cross provincial borders to attend that family member’s funeral once he or she had died.

It was irrational that informal traders, like construction workers and waste-pickers, could not eke out a living during lockdown when they were likely to have less human contact than those people who attended funerals.

It was irrational that a hairdresser, willing to comply with preventive measures, must “watch her children go hungry while witnessing minicab taxis pass with passengers in closer proximity to each other than they would have been in her salon”, the judge said.

Davis asked a series of pointed questions about, among other things, the rationality of government regulations concerning the care of children, the prohibition placed on night vigils for grieving families, the test used to evaluate who can and cannot attend funerals, limitations previously placed on exercise, and the management of aid relief to poor and desperate communities.

While the judge was clearly perplexed and irritated by what he regards as the irrational nature of these and many other decisions, it was apparent that the government has done little to nothing to address his concerns.

Davis’s judgment reveals that the government delivered a reply to De Beer’s litigation only after he ordered it to do so, after Dlamini-Zuma missed several deadlines to file an answering affidavit. Eventually, under threat of facing contempt of court action, a director-general in Dlamini-Zuma’s department filed an affidavit on her behalf. Davis slammed that affidavit for failing to show that the minister had considered each of the regulations individually for their constitutionality. “The director-general’s affidavit contains mere platitudes in a generalised fashion in this regard, but nothing of substance,” he said.

Constitutional law expert Lawson Naidoo said it is apparent that “government’s submissions were superficial and did not sufficiently engage with the issues before the court, leading the court to describe it as a ‘paternalistic approach’. This lackadaisical approach to litigation by the state highlights a level of arrogance towards judicial scrutiny that is regrettable.”

In his ruling, Davis found that the declaration of a national state of disaster “places the power to promulgate and direct substantial (if not virtual[ly] all) aspects of everyday life of the people of SA in the hands of a single minister with little or none of the customary parliamentary, provincial or other oversight functions provided for in the constitution in place”.

The judge said it was therefore pivotal that the regulations formulated under the Disaster Management Act were “closely scrutinised” to ensure that each and every one was both rational and constitutionally justifiable.

It is useful to examine exactly how the government responded to what was, quite obviously, an opportunity for it to explain the thinking that informed its regulation decisions — and to link those regulations to the purpose of stopping the spread of Covid-19. Doing so would prove to the court that the regulations were rational and should therefore not be set aside.

In her response to De Beer’s application, the director-general of the department contended that, because the Covid-19 pandemic affected a number of constitutional rights, “the SA population has to make a sacrifice between the crippling of the economy and the loss of lives”. She added that lockdown regulations “cannot, therefore, be set aside on the basis that they are causing economic hardship, as saving lives should take precedence over freedom of movement and to earn a living”.

It may well successfully challenge Davis’s ruling, but, by digging in its heels on regulations that make no sense and refusing to explain itself, the government is losing its most crucial battle: in the court of public opinion.