COVID-19 REGULATIONS: REASONABLE AND JUSTIFIABLE OR INVALID AND UNCONSTITUTIONAL?
“So I can now legally buy booze, but not a pack of smokes – really?”
As we all know, a National State of Disaster was declared on 15 March 2020 in terms of section 27 of the Disaster Management Act, 2002 to address the threat of the Covid-19 pandemic in South Africa
Subsequently, numerous regulations have been promulgated with the intended outcome of saving lives and curbing the spread of the virus, but which have also severely impacted on the Constitutional rights of South Africans as set out in the Bill of Rights.
Alert Level 3 Regulations were recently promulgated allowing for inter alia the opening of many economic sectors and the greater movement of people.
In an interesting turn of events last week, the Gauteng High Court declared the Alert Level 4 and Alert Level 3 Regulations invalid and unconstitutional, suspending the invalidity of Alert Level 3 Regulations for 14 days to allow Government to effect amendments.
The Judge found that some of the regulations were irrational and that “little or in fact no regard was given to the extent of the impact of individual regulations on the Constitutional rights of people and whether the extent of the limitation of their rights was justifiable or not”.
In terms of section 36 of the South African Constitution, the rights set out in the Bill of Rights may only be limited to the extent that such limitation is reasonable and justifiable.
The Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma, has been ordered by the Court to review, amend, and republish the regulations, in consultation with the relevant ministers, with due consideration being given to the limitation each regulation has on the rights in the Bill of Rights.
It has also been argued that a National State of Emergency could have been declared in terms of section 37 of the Bill of Rights in the Constitution to deal with the Covid-19 pandemic rather than the declaration of a National State of Disaster in terms of the provisions of the Disaster Management Act, 2002 (DMA). Regulations promulgated in a State of Emergency require far more stringent vetting, and there would have been less scope for the seemingly arbitrary limitations on human rights that arose under the DMA.
Government has elected to appeal the judgment of the Gauteng High Court and various legal academics are of the opinion that the appeal should succeed on the basis that the test for rationality was incorrectly applied and the regulations were declared invalid without the constitutionality of each regulation being adequately considered.
So, time will tell whether you may only purchase closed shoes in winter and slip slops in summer!
Jennifer Nicholson
- On June 11, 2020