On 2 June 2020 Judge Davis handed down judgment in the North Gauteng High Court declaring the Level 4 and 3 regulations published by the Minister of Cooperative Governance and Traditional Affairs under the Disaster Management Act unconstitutional and therefore invalid.

In doing so, the Court held that there was sufficient reason for the government to have declared a national state of disaster but that, in doing so, it did not give the government carte blanche to trample on the fundamental rights granted to South Africans in terms of our Constitution.

Judge Davis correctly found that invoking a national state of disaster placed the power to regulate all aspects of everyday life of South Africans in the hands of a single cabinet minister with little or no parliamentary oversight, and that the exercise of her functions should therefore be closely scrutinised to ensure the legality and constitutional compliance thereof.

The regulations were and are meant to be used to achieve the stated objective of declaring the national state of disaster, namely delaying the onset of the coronavirus in South Africa so as to buy our health system time to cope with the anticipated demand for hospital and, in particular, ICU beds and treatment.

The regulations need to meet a constitutional test as they infringe on constitutionally granted basic human rights such as the right to dignity, to freedom, to assemble and of association, to freedom of movement, to access to food and water, and education. This implies that the regulations must be rational in that there must be a rational connection between every regulation and the government’s stated objective. In addition, the regulations must be proportional and go no further than what is absolutely necessary to achieve the government’s stated objective.

Judge Davis found that many of the regulations are neither rational nor proportional and gave examples of: –

  • The restriction of exercise times to 3 hours a day;
  • That people could walk on the promenade but not on the beach;
  • That people such as hairdressers, even those with appropriate safety protocols in place, were all prevented from working but that the government allowed people to use public transport in circumstances where those making use of public transport were in a much more confined space;
  • That family members were prevented from visiting relatives who were on death’s door, but once the person had passed away 50 people could gather for his or her funeral; and
  • That the thousands of people employed in the informal sector were all banned from trading as opposed to the imposition of limitations and precautions on them.

Judge Davis deliberately steered clear of making any findings in respect of the continued prohibition on the sale of tobacco products as that matter is to be dealt with specifically in a separate upcoming court case.

The Court found that the lockdown regulations for Level 4 and 3 were unconstitutional and thus also invalid for them being irrational and/or disproportionate to the Government’s stated aim in declaring the national state of disaster. The Government was given 14 business days to consider what was strictly necessary to achieve the Government’s stated objective, and then to rewrite the regulations in a manner which would not run roughshod over South African citizens’ fundamental rights.

Of course, the Government has the right of appeal and it would be surprising if they do not elect to do so. The stakes are high for them in the ruling stands from both a political and practical perspective.

In the meantime, the Level 4 and 3 regulations still stand for 14 business days or until the Government has either re-written the regulations or has appealed the judgment.

According to statistics released by the Minister of Police, nearly a quarter of a million South Africans have been arrested during Levels 4 and 3 of the lockdown, many for trivial offences that bore the brunt of Judge Davis’ criticism in his judgment. If those particular regulations are either abandoned by the government in re-writing the regulations or confirmed in any appeal to be unconstitutional and therefore invalid, the Government may face not only a surge of infections in the coronavirus, but also of litigation for damages due to wrongful arrest.

Ian King