Following the declaration of the National State of Disaster on March 15, 2020, a number of regulations have been enacted to contain and minimise the spread of COVID-19 in South Africa. On June 2, 2020, Judge Norman Davis of the South African High Court found the regulations issued in terms of section 27 of the Disaster Management Act, 2002 (Act No. 57 of 2002) (the “Act”) under Government Gazette No. 43258 (the “Regulations”), unconstitutional and invalid. See De Beer and Others v. The Minister of Cooperative Governance and Traditional Affairs (“De Beer”).

In this piece, we provide an overview of the Court’s analysis pursuant to the rationality test.

The Rationality Test

The rationality test requires an evaluation of the relationship between the means and the end. It is not designed 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. Where the measure is not rationally connected to a permissible objective, a lack of rationality would result in such a measure not constituting a permissible limitation of a constitutional right in the context of section 36 of the Constitution.

In employing the rationality test, the Court found that the declaration of a National State of Disaster was rational because measures to curb the spread of COVID-19 were urgently required to convert an ailing and deteriorated public health care system into a state of readiness, able to cope with previously unprecedented demand for high and intensive care facilities. Among the issues challenged were: the limitation on exercise; who may attend funerals; and the practicalities of distributing aid relief. The Court found that the Regulations (in a substantial number of instances) are not rationally connected to the objectives of slowing the rate of infection or limiting the spread of COVID-19. However, other restrictions did pass constitutional muster, including those pertaining to: education; prohibitions against evictions; initiation practices; the closure of night clubs; fitness centres; and the closure of borders (See Regulations 36, 38, 39(2)(d) – (e), and 41). The issue relating to the ban of the sale and trade of tobacco was not addressed in any level of detail, owing to separate court cases pending on that subject.

Conclusion

Acknowledging the separation of powers doctrine, the Court ordered the Minister of Cooperative Governance and Traditional Affairs—vested with the power to implement regulations under the Disaster Management Act—in consultation with other relevant ministers, to take appropriate remedial action, amendment, and review. The order has been suspended for 14 days, leaving the Regulations in place for the moment.

De Beer highlights the delicate balance required in the policymaking process. First, a balance must be struck between the proper exercise of public powers and/or functions within the ambit of the enabling legislation. Second, this should be done in a manner in which fundamental human rights are respected and upheld. Where Government actions do not satisfy the rationality test, their encroachment on and limitation of fundamental human rights (even during a pandemic), will not be justifiable.

In a statement issued on June 4, 2020, Cabinet decided to appeal the De Beer judgment on an urgent basis. The Minister of Cooperative Governance and Traditional Affairs will be joined in this application by the President and the Minister of Health.

For further information, please reach out to Covington’s COVID-19 Task Force at COVID19@cov.com, Robert Kayihura at RKayihura@cov.com, and/or Mosa Mkhize at MMkhize@cov.com.