Cabinet to appeal regulations ruling, extends State of Disaster until July 15
Judgment heaps further pressure on government
THE government will appeal against the Gauteng High Court judgment that declared most level 4 and 3 lockdown regulations “invalid” and “unconstitutional” this week.
Minister in the Presidency Jackson Mthembu told the media at a briefing in Pretoria yesterday that the decision to appeal against the judgment on an urgent basis had been taken at a special Cabinet meeting earlier in the day.
Minister of Health Zweli Mkhize will join the application as a third respondent along with Minister of Co-operative Governance and Traditional Affairs Nkosazana Dlamini Zuma and President Cyril Ramaphosa.
Mthembu said the government had taken counsel from the legal fraternity and was of the view that another court might come to a different conclusion regarding the regulations.
He said the Cabinet had also extended the national State of Disaster for another month, from June 15 to July 15, as it was legally permitted to do so on a month-to-month basis in terms of the National Disaster Management Act.
Reyno de Beer and Liberty Fighters Network filed an urgent application on May 28 asking the court to declare the State of Disaster and regulations under the Disaster Management Act 57 of 2002 “unconstitutional, unlawful and invalid”.
They won their application regarding some of the regulations, which Judge Norman Davis ruled were “irrational” and “invalid”, with costs against Dlamini Zuma. Davis ordered the minister to amend and republish the regulations within 14 days, during which time the declaration of invalidity would remain suspended.
However, Mthembu said yesterday that the government was “very confident” that it had made the right decision in crafting the regulations.
“The government will ask that its appeal be heard on an urgent basis so that all of us can obtain certainty on the regulations,” Mthembu said.
“The Cabinet wishes to assure the nation that all interventions introduced since the declaration of the State of Disaster in March by President Cyril Ramaphosa have been directed primarily at saving the lives of our people,” Mthembu said.
“The restrictions placed on the movement of individuals and on the level of activity in the economy have been directed at slowing the spread of Covid-19 infections. While the government appeals against the court judgment, current regulations remain in force and we appeal and urge all our people to observe all the health protocols that have been put in place, including washing of hands, social distancing, wearing of masks in public as well as screening and referral for testing when necessary,” he said.
Mthembu said the government’s decision-making methodology in crafting the regulations for levels 5, 4, 3 and 2 had been done to save lives and was “very open”, and that it had not done anything to justify the court’s conclusion.
He said South Africa had been praised by the World Health Organization for the early action it had taken to curb the spread of the virus.
“People are saying had we not acted as early as we did in pronouncing a national disaster in our country followed by a lockdown, that we could have had thousands and thousands of people infected, and we would also have had more people dying than the numbers we have had,” he said.
“They say we could have had eight times the number of people infected and eight times the number of people who have passed on as a result of contracting Covid-19.
“We have been able to save many, many thousands of lives by the action we have taken. Our decision-making was spot on,” he said.
He added that the government would not have to amend the lockdown regulations within 14 days, and all regulations and ministerial directives would remain legally in place until the appeal had been heard.
Mthembu said the Cabinet had also discussed its concerns regarding the intensity and increase in the number of infections in the Western Cape, and that Ramaphosa, Mkhize, Minister of Defence and Military Veterans, Nosiviwe Noluthando Mapisa-Nqakula, and Minister of Police, Bheki Cele, would meet with Western Cape Premier Alan Winde to discuss the issue today.
He added that “other enhanced” lockdown regulations could be expected for hot-spot areas, and that Mkhize and Dlamini Zuma would communicate these.
“At the moment we are all at level 3 and I am not aware of the Western Cape being extended to a higher level,” Mthembu said.
He said Cabinet was also concerned about low dam levels there.
A SOUTH African High Court has declared the government’s lockdown regulations unconstitutional and, therefore, invalid, driving a coach and horses through its Covid-19 strategy.
Justice Norman Davis found both level 3 and level 4 regulations “irrational”. The government has five alert levels, from 5 to 1, when most normal activity can resume.
After two months of enduring one of the most stringent lockdowns of any country, there have been signs of restlessness in some communities. As the government added greater detail to the regulations, when the country moved from level 5 to level 3, the credibility of restrictions has been stretched.
But the legal and governance impact of this week’s judgment is far-reaching. It will heap further unwelcome pressure on to a government that is already under intense pressure as it tries to navigate a complex, wholly unfamiliar and ever-changing decision-making terrain.
The judgment declares that the regulations are invalid. But, with the exception of some, it suspends the declaration of invalidity for 14 days to allow the Minister of Co-operative Governance, Nkosazana Dlamini Zuma, to review, amend and republish the regulations (with) due consideration to the limitation each regulation has on the rights guaranteed in the Bill of Rights contained in the Constitution.
This requires the government to redo the work that it has done in preparing, and then promulgating, the regulations. It also creates a new layer of uncertainty to an already highly fluid situation.
During the 14-day period, the newly instituted level 3 regulations, which reopened a large part of the economy and allowed the sale of alcohol, will remain in force. But the judgment means that it will not be possible for the government to revert to the old level 4 regulations without a substantial rewrite.
An appeal by government to the Constitutional Court is highly likely, and highly desirable. It is hard to think of a more significant judgment in terms of how many people and how wide a sweep of the economy it affects.
But, in my view, the judgment is unconvincing in many respects and has applied the law incorrectly.
Given the stakes, it is important that it is properly understood
and held up for public scrutiny.
Rationality test
For a government decision to be held by the court to be “irrational” does not mean that the court finds the decision itself to not be based on logical reasons or clear thinking.
Instead, the rationality test permits the court to review a decision based on an assessment of whether there is a rational connection between the government decision, the process used to reach it, and a legitimate government purpose.
The court notes that the government’s affidavit had argued that the “means justify the end” and, therefore, the regulations pass the rationality test.
But, Justice Davis then observed that he wondered aloud during argument whether, in fact, the government actually intended to apply the Machiavellian notion of the “end justifies the means”.
As the judgment unfolds, it becomes increasingly clear that he takes a dim view of the reasonableness (not rationality) of a good deal of the government’s decision-making, thereby potentially confusing the law.
He finds, for example, that:
Restricting the right to freedom of movement in order to limit contact with others in a bid to curtail the risks of spreading the virus is rational, but to restrict the hours of exercise to an arbitrarily determined time period is completely irrational.
The court’s responsibility was to see if there was any rational connection between the decision and the purpose, not whether there was a better means of serving the end goal.
Moreover, it requires the court to examine with great precision each and every step of the decision-making process, and to assess the evidence of how the decision was taken and whether, in an objective sense, the decision was correctly deemed to be in service of the purpose.
Justice Davis’s judgment fails to do so. Although, if government did an inadequate job at placing sufficient evidence of their reasoning and decision-making process, then they are partly at least the architects of their own misfortune.
Regardless, Justice Davis appears to review both sets of regulations and then pick out the ones that displease him most in terms of whether they “make sense” to him or not, and to declare all of them invalid, and not just those that he has sought to apply the rationality test to.
The reference to evidence is scanty. For example, the court observes – without any citation – that millions of South Africans in the informal sector have less daily contact than people attending a funeral, making the “blanket ban” on them “appear to be irrational”.
Holes in the argument
The court describes the approach of the government as “a paternalistic approach, rather than a constitutionally justifiable approach”.
Paternalism may be politically or ideologically unattractive to some, especially libertarians. But, it is not, per se, a constitutionally impermissible policy or strategic position for the government to adopt, pandemic crisis or not.
The judgment may also be vulnerable to attack for adopting a simplistic approach to the “legitimate government purpose”, which it finds to be solely to contain the spread of the virus. This is a misunderstanding.
The risk-adjusted strategy that creates the framework of different Covid-19 alert levels, under the Disaster Management Act 2002, seeks to strike a balance at every stage of the unfolding crisis between competing and overlapping priorities.
This includes the public health priority of building capacity in the health system to absorb an inevitable rise in infections, and the duty of the state to protect lives and livelihoods.
The other puzzling aspect of the judgment relates to its approach to the Bill of Rights and possible limitation of the rights enshrined in it.
Clearly, the lockdown involved the limitation of certain “normal” freedoms. The question is whether the limitations are constitutionally permissible, and uphold section 36 of the Constitution. This requires that such limitations be proportional. This means that the government may use only the least restrictive measure for achieving its aim.
But, having found the regulations to be irrational and therefore invalid, the court had no need to consider whether they unjustifiably infringed any right protected in the Bill of Rights. Justice Davis bluntly finds that: In an overwhelming number of instances the Minister (sic) has not demonstrated that the limitation of the Constitutional rights already mentioned, has been justified in the context of section 36 of the Constitution.
Confusingly, the court order requires the government not to fix the impugned “irrationality” of the regulations, but instead, to review them with regard to whether they may infringe the Bill of Rights.
Rule of law
Government lawyers, as well as Cabinet ministers and officials, will be scratching their heads over this judgment. Not least because the notion of a “rationally justifiable” infringement of constitutional rights is a novel formulation.
Whether the judgment is overturned on appeal or not, what it shows – once again – is that South Africa’s rule of law and its judicial independence are alive and kicking.
At a time of such extreme crisis, courts may be inclined to give the government a little more latitude – such as the decision of the German Supreme Court last month, in finding that its government has a wide scope for the assessment, evaluation and design of its Covid-19 response.
As South Africa’s Constitutional Court has found in other cases involving complex public policy and socio-economic rights, the more “polycentric” the governmental decision-making or policy choice, the more careful the court should be not to stray into the executive’s lane.
Nothing could be as polycentric as Covid-19.
This is not to say that the government should be given a free hand or a blank cheque.
A state of national disaster cannot permit lawmaking through the back door, nor enable a slippery slope into autocracy.
Far from it. As the High Court judgment shows, government will have to work hard to ensure that it is acting within the law, respecting hard won rights every step of the way.
Judgment shows that South Africa’s rule of law and judicial independence is alive
and kicking