A summary of the case of De Beer & Others v The Minister for Cooperative Governance and Traditional Affairs – on appeal
Author: Tshego Mashile
Date: 12 July 2020
On 2 June 2020 The High Court of South Africa, Gauteng Division handed down judgment declaring the ‘Lockdown Regulations’ under the Disaster Management Act, 2002 unconstitutional and invalid. The court also ordered the Minister to amend and review those regulations which do not meet constitutional muster within 14 days of the date of judgement.
The Minister later made an application for leave to appeal the aforementioned judgment on 30 June 2020 which application was granted partially. This article will briefly detail the development of this case up to the present.
The Initial Application
The court in the initial application handed down judgement in favour of the Applicants following contentions by the Applicants (who comprised of a member of the public, a voluntary community association and an amicus curiae) that several of the Lockdown Regulations arbitrarily infringed on the rights of citizens enshrined in the Bill of Rights. They contended further that many of the Lockdown Regulations where irrational and therefore did not pass constitutional muster.
The court, in its judgment, highlighted the importance of the Bill of Rights and pointed out that in the exercise of public power, the rule of law has to be upheld. The court in reaching its decision focused heavily on rationality and justifiability as required by the Limitations clause (section 36) of the Constitution. In order for any regulation made by the state to pass constitutional muster it has to pass the rationality test i.e. the encroachment on the fundamental rights of citizens must be reasonable and justifiable.
The court considered many of the contentions of the Applicants regarding the irrationality of some of the regulations and resultantly, the arbitrary derogation of the fundamental rights of citizens. Examples of regulations challenged include inter alia those related to the restriction of movement and curfews, those disallowing patients to have visitors, those criminalizing informal trade, such as hawkers, waste pickers and hairdressers, those prohibiting night vigils, and those restricting exercise; yet there were other regulations allowing up to 50 people to gather to attend a funeral, allowing taxis to operate with passengers in close proximity, and many others that rendered some of the regulations absurd.
The court however, did recognize that not all of the regulations failed the rationality test, some of the Lockdown Regulations especially those relating to education, prohibitions against evictions, initiation practices and closures of night clubs etc. as well as the closure of boarders were found to be rationally connected to the stated objectives of the Disaster Management Act and the Lockdown Regulations.
This court nevertheless found the ‘Lockdown Regulations’ passed by the Minister to be unconstitutional and invalid and ordered the minister to review and amend same within 14 days.
The Application for Leave to Appeal
The Minister, instead of simply amending and reviewing the regulations as per the aforementioned order, opted rather to make an application for leave to appeal the judgment of 2 June. The Minister was then granted leave to appeal the declaration of invalidity of those regulations not expressly identified in the judgment of 2 June.
Counsel for the Minister in the application for leave to appeal made various arguments namely; that the Applicants failed to raise a constitutional attack with enough specificity; that the court strayed beyond the pleadings; that the court made a ‘wholesale’ or ‘blanket’ declaration of invalidity; and that the relief as cited in the judgment was of 2 June was vague in that it did not tell the Minister which regulations to amend and how.
The court in considering whether to grant leave to appeal considered whether there were reasonable prospects of success on appeal or if there were some other compelling reason. The court considered each of the arguments made on behalf of the Minister and found that all of them lacked reasonable prospects of success save for one; the argument against the ‘wholesale’ declaration of invalidity of the Lockdown Regulations.
Counsel for the Minister argued that only a limited number of the Lockdown Regulations where challenged in the initial application and therefore the court was not entitled to strike down all of the other Lockdown Regulations along with them. The court thus found that the Minister had reasonable prospects of success on appeal based on this argument and granted leave to appeal against the declaration of invalidity of those regulations not expressly identified in the judgment of 2 June. Leave to appeal against the remainder of the judgment and the orders was refused.
The court also noted in this judgement, the changing factual landscape. At the time of hearing the Application for leave to appeal the judgment of 2 June, certain of the offending provisions of the Lockdown Regulations already appeared to have been amended by the Minister. This then begged the question of whether or not the Minister had already, by her conduct, complied with the order, and if so, why the Minister would proceed to make an application to appeal the order which they appear to have already complied with. The Minister was silent on this issue and thus the court decided not to deal with it.
End.
