Coronavirus disease (COVID-19) is an infectious respiratory disease caused by a newly discovered coronavirus classified as a pandemic by the World Health Organisation (WHO).[1]  In response to this pandemic, President Cyril Ramaphosa declared a national state of disaster in South Africa in terms of the Disaster Management Act, 2002 (DMA) with effect from 15 March 2020. This has led to aggressive policy decisions and regulations aimed at containing and curbing the spread of COVID- 19 in South Africa.

In his weekly newsletter of Monday 18 May 2020,[2] President Cyril Ramaphosa reminded South Africans that “the exercise of the fundamental freedoms of expression, association and speech is a barometer of the good health of our democracy” and as such all citizens “who are unhappy with whatever action that government has decided on implementing have a right to approach our courts for any form of relief they seek.” He further added that the government in fact appreciates all constructive criticism and challenges which assist policy makers in making reassessments and adjustments while navigating these uncertain times.

 

To date several parties have already exercised their right to litigate against the government on the back of the COVID- 19 management measures.

 

We know from the Ex Parte Application of Karel Willem Van Heerden[3] that the Courts have made it clear that, no matter how sympathetic a case, the Courts are not empowered to authorize an applicant to break the law under judicial decree. As such an ex parte application requesting leave to breach any of the regulations would be unsuccessful. However in the case of Mohamed and Others v President of the Republic of South Africa and Others[4] the Gauteng Division of the High Court heard an Application against the state seeking to have  Section 27 of the DMA, declared unconstitutional and amending the regulations to permit movement of persons between the residence and places of worship on such reasonable conditions as the court deemed appropriate. Neukircher J dismissed this case stating that “in South Africa right now, every citizen is called upon to make sacrifices to their fundamental rights entrenched in the Constitution. They are called upon to do so in the name of “the greater good”, the spirit of “ubuntu” and they are called upon to do so in ways that impact on their livelihoods, their way of life and their economic security and freedom…I cannot find that the restrictions imposed are either unreasonable or unjustifiable and thus the application must fail.”[5]

 

The most notable success in litigation against the State related to the COVID 19 Regulations is that of the more recent case of De Beer and Others v Minister of Cooperative Governance and Traditional Affairs[6]  where the applicants sought to have the national state of disaster declared unconstitutional, unlawful and invalid along with all the regulations promulgated by the Minister and that all businesses, services and shops be allowed to operate subject to reasonable precautionary measures of utilizing masks, gloves and hand sanitizers.[7]  In this judgement Davis J, found the Minister’s declaration of a national state of disaster in terms of Section 27(1) of the DMA in response to the COVID 19 pandemic to be rational, but found the regulations promulgated in respect of Alert Levels 4 and 3 in terms of Section 27(2) of the DMA by the Minister in a substantial number of instances did not rationally connect to the objectives of slowing the rate of infection or limiting the spread thereof.[8] For example, Davis J highlighted that to probihit loved ones who are not caregivers from visiting a gravely ill family member was irrational if the the same regulations would allow 50 people to gather for the funeral of the deceased upon their demise.[9]The same could be said of the blanket ban on the informal sector.[10] How the State will respond to this judgement and whether it will be subject to an appeal still remains to be seen.

In Esau and Others v Minister of Co-operative Governance and Traditional Affairs and Others[11] applicants sought an order declaring lockdown regulations of 29 April 2020 as well as the National Coronavirus Command Council (NCCC) unconstitutional and invalid. Allie J heard and dismissed this application stating that the minister’s approach to regulation making under the DMA was in conformity with the purposive and contextual approach to interpretation of the statute and she correctly used necessary  means  to manage the national disaster, as well as to manage the consequences that result from the disaster, her approach to regulation making was therefore lawful and in compliance with the Constitution.[12]  The judgment further makes it clear that it is not the role of the Courts to prescribe how government should carry out its mandate regarding disaster management as long as rationality prevailed which the Court was satisfied was the case.[13]

On the same day yet another party received a judgement finding that their application was unsuccessful in the High Court in Pretoria. This was in the case of Fair-Trade Independent Tobacco Association  (FITA) v President of the Republic of South Africa and Another[14] where FITA sought an order reviewing and setting aside the Regulations as they related to the prohibition in the sale of tobacco products and cigarettes. The consideration before the Court was whether the Minister acted rationally and in keeping with the principle of legality in imposing a ban on tobacco. The Minister argued that the ban was necessary for preservation of life  mainly because:

  1. hospital resources were already strained, making specific reference to ventilators;
  2. studies showed that smoking is associated with increased severity of COVID-19 and death in hospitalized COVID-19 patients;
  3. studies showed that overall, the ban on tobacco sales has been effective in reducing access to cigarettes and as a result, effective in reducing smoking and its adverse effects overall;

FITA argued that the Minister was cherry picking the empirical data that served her narrative, that no regard was given to mental health of smokers, that the ban only served to drive the illicit tobacco trade and that tobacco should be considered an essential or basic good. The Court found in favour of the rationality of the Regulations and also completely dismissed the possibility of cigarettes being an essential product purely because they are addictive. We know this is not the last cigarette ban case to be heard before the Courts as  the Courts will hear the arguments of British American Tobacco in August.

An urgent application for direct access to the Constitutional Court by the Democratic Alliance[15] seeking to challenge the Disaster Management Act was dismissed by the apex Court on 1 July 2020. The Court stated that it was not in the interest of justice to hear the matter on an urgent basis. On the same day the Gauteng High Court in Pretoria dismissed an application to stop the reopening on schools in the case of One South Africa Movement and Another (OSAM) v President of the Republic of South Africa and Others.[16] Part of the Court’s reasoning included that children have an undisputed constitutional right to education which places an obligation on the Minister of Basic Education to respect, protect, promote and fulfil this right.  The decision to re-open schools fell within the Minister’s sphere of authority.  Furthermore, it was quite obviously rationally connected to the scope of her constitutional obligations.  The applicants’ subjective view that the decision should have been delayed was not part of the test for rationality.[17]

 

In summation, our Constitution and the tenants of democracy afford every citizen the right to challenge the government and policy makers in a Court of law. However, the judgements above indicate that the Courts will generally not interfere with the state’s policy making in the management of COVID- 19 unless it is apparent that said policies are irrational. To date most applicants have struggled to convince the courts of irrationality in this context.

[1] Refer to: https://www.who.int/emergencies/diseases/novel-coronavirus-2019

[2] Retrieved at:  https://mailchi.mp/presidency.gov.za/president-desk-18may20

[3] (3289/18) [2020] ZAMPMBHC 13; [2020] ZAMPMBHC 5 (6 March 2020)

[4] (21402/20) [2020] ZAGPPHC 120; [2020] 2 All SA 844 (GP) (30 April 2020).

[5] At para [75] & [77].

[6] (21542/2020) [2020] ZAGPPHC 184 (2 June 2020)

[7] At para 3.1.

[8] At para 9

[9] At para 7.1.

[10] At para 7.2.

[11] (5807/2020) [2020] ZAWCHC 56 (26 June 2020)

[12] At para 253.

[13] At para 255- 256.

[14] (21688/2020) [2020] ZAGPPHC 246 (26 June 2020)

[15] The Democratic Alliance v The Minister of Co-Operative Governance and Traditional Affairs and Others Case Number: CCT87/20

[16] (24259/2020) [2020] ZAGPPHC 249 (1 July 2020)

[17] At para 155.