Testing Covid-19 regulations – the threshold looks low
The South African Government’s first response to the Covid-19 pandemic was a hard lockdown, as it was called. The public response to the accompanying curtailment of rights and freedoms was one of acceptance. From the onset, though, in some form or another the Government’s disaster management regulations were tested in the courts of law. (It will be recalled that the Government invoked the pdf Disaster Management Act of 2002 (2.08 MB) to deal with the pandemic, instead of declaring a state of emergency that would have been subject to constitutional limitations and the State of Emergency Act of 1997, with specific parliamentary oversight. This aspect is an issue in a forthcoming application to the Constitutional Court about the constitutionality of section 27 of the Disaster Management Act.)
The month of June saw three prominent judgments on the validity of the Covid-19 regulations. Two stemmed from the High Court in Gauteng, the third from the Western Cape. In the first, De Beer v Minister of Cooperative Government and Traditional Affairs (De Beer), delivered on 2 June 2020, a single judge set aside all the regulations except the one prohibiting the sale of tobacco products. The reason for the exception was that an application to have the tobacco ban declared invalid was already pending in the same court. The Government immediately noted an appeal against De Beer, and the regulations remain in force.
The second and third rulings were delivered on the same day, 26 June 2020. In the one, Esau v Minister of Cooperative Government and Traditional Affairs (Esau), two judges of the Western Cape High Court found the disaster management regulations to be in order, without any reference to De Beer. In the other, Fair-Trade Independent Tobacco Association v President of the Republic of South Africa (FITA), three Gauteng High Court judges ruled that the Government’s prohibition on the sale of tobacco products was rational and therefore valid.
A key notion that figured in all three judgments was ‘rationality’, specifically the question whether the regulations issued by the responsible minister were rational. ‘Rationality’ has become something of a household word in South African constitutional and administrative jurisprudence, where its meaning is not unequivocal. This is due, amongst others, to the somewhat idiosyncratic manner in which the Promotion of Administrative Justice Act of 2000 (‘PAJA’) isolated ‘administrative’ action from other ways in which ‘public’ power is exercised. The technicalities need not detain us, but the significance of the observation is that the PAJA route, with its own formulation of rationality, is a detailed and more cumbersome statutory one than the mainly judge-made rationality rule. The latter is seen as an incidence of ‘legality’, which in turn stems from the rule of law as one of the founding values of the SA Constitution.
In the three cases the applicants readily conceded that the regulations in question were ‘executive’ action as opposed to ‘administrative action’ and therefore subject to ‘legality’ review, of which rationality is the core. In its simplest form, as defined by the Constitutional Court in a series of rulings, rationality as part of legality expects the end sought to be rationally linked to the means used to achieve the end. Or more simply, there must be a rational relationship between method and object. The threshold is said to be low, because the mere establishment of a rational connection is adequate to save an act from invalidity.
As the three cases show, in practice the application of this principle may lead to contradictory outcomes. In the context of Covid-19 this may be understandable. Judge Davis, in the De Beer case, anticipated ‘the possibility of conflicting judgments due to a multiplicity of applications in different courts at different times’, adding that ‘lack of cohesion and coordination is unsatisfactory but the multitude of regulatory instruments issued by different role-players over a short space of time is the most probable cause thereof.’ (Para 3.4 of the judgment.)
It is interesting to note the way in which the respective judgments dealt with ‘rationality’. A common strand was their reference to the Constitutional Court rulings on rationality as part of ‘legality’ review. After that the ways parted. In De Beer, having found no fault with section 27 of the Disaster Management Act and the declaration of the national disaster, Judge Davis proceeded to measure a number of regulations for their rational connection to the purpose for which they were made. He did this by pointing at anomalies and insufficient justification by the responsible minister. (By way of example, he asked why a single-parent hairdresser would be denied the opportunity to earn a living ‘while witnessing minicab taxis pass with passengers in closer proximity to each other than they would have been in her salon’ (para 7.3). Or he took issue with the restriction on exercise: ‘The limitations on exercise are equally perplexing: If the laudable object is not to have large groups of people exercising in close proximity to each other, the regulations should say so rather than prohibit the organizing of exercise in an arbitrary fashion’ (para 7.7).
This analysis led the court to conclude that the minister had not considered the impact of the regulations on the rights and freedoms enshrined in the constitutional Bill of Rights and did not measure the regulations against section 36 of the Constitution that lays down the criteria for limiting those rights and freedoms: ‘In every instance where "means" are implemented by executive authority in order to obtain a specific outcome an evaluative exercise must be taken insofar as those "means" may encroach on a Constitutional right, to determine whether such encroachment is justifiable’ (para 9.3). The court ordered the minister to do the limitation assessment with regard to all the regulations, and allowed her 14 business days to do so.
The court was alert to the separation of powers and that judges should not overreach into the domain of the executive. Its compliance with this requirement was allowing the Minister to review the regulations herself.
In Esau the attack on the Covid-19 regulations was linked to an attempt to have the Government’s National Coronavirus Command Council declared invalid.
Unlike De Beer, the court in Esau would have none of the ‘comparative’ methodology used in De Beer to point out inconsistencies in the regulations and hence their irrationality. The court’s approach resembles a description of ‘bare’ rationality in a 2018 ruling of the Constitutional Court: ‘All that is required for rationality to be satisfied is the connection between the means and the purpose.’ As much is clear from its conclusion that ‘to exercise within limited hours so that the effect of curbing movement and consequently the spread of the virus is not negated by people exercising throughout the day’ (para 238. This was a reference to a regulation that allowed outdoor exercise daily between 0600 and 0900). There certainly was a connection between the means and the purpose. However, the question is whether the means chosen in this (and other examples from the regulations) satisfied the requirement of the very next sentence from the quoted judgment: ‘Put differently, the means chosen to achieve a particular purpose must reasonably be capable of accomplishing that purpose’ (own emphasis). Answering this question invariably invites some form of evaluation. In the case of the limited hours for outdoor exercise, numerous reports and images of people walking or running in close proximity did the rounds, and the restriction was lifted fairly soon. The same applied to a curfew that was imposed more or less the same time.
The court may retort that in view of the doctrine of separation of powers and the need to refrain from overreach into the executive sphere, it is not for the court to ‘prescribe to government how it should exercise its mandate’ (para 255). This should not deter a court from raising a question whether the means chosen in a particular instance would be reasonably capable of achieving the purpose.
In Esau’s case the court found that the impugned regulations were valid.
The judgment in FITA was eagerly awaited because it concerned the highly controversial and burning matter of tobacco sales. From the first day of the lockdown the sale of all tobacco products was banned. And it remained banned. A full bench of three judges in Gauteng heard the application for an order to declare tobacco products ‘essential goods’ that could be sold and to declare two regulations prohibiting the sale of tobacco products invalid. The court’s refusal to declare tobacco products essential goods caught the headlines, despite the fact that it was rather cursorily dealt with at the end of the judgment. The equally if not more important and major part of the judgment enjoyed less publicity. As in De Beer and Esau it concerned the rationality of the two regulations preventing the sale of tobacco products.
In terms of approach, the court sided with Esau (without mentioning the latter because the two judgments were rendered on the same day). The court emphasised that the parties agreed that the regulations were ‘executive’ action – not administrative action – subject to what the court called the ‘rationality standard which is in turn founded in the principle of legality principle’ (para 15).
The court was at pains to explain the low bar of the rationality test and that it was not within its remit to say whether better means could or should have been found to achieve the ends. It also considered the evidence used by the minister to justify the ban and concluded on the basis of an unspecified percentage that ‘overall, the ban on tobacco sales has been effective in reducing access to cigarettes and as a result, effective in reducing smoking overall. Given the link between the adverse effects of COVID-19 and smoking, it can be said that the objective of containing the virus through imposing the ban on the sale of tobacco products was achieved’ (para 44).
The question that was not asked and therefore not answered, was how long it would take long-term smokers with compromised lungs to recover sufficiently to no longer pose the threat to the covid-fighting project that the minister was seeking to minimise. It is unlikely to happen overnight. Which renders the rationality test in this case a mechanical one, almost to the point of a bare connection between means and end, without any consideration as to whether the means would be reasonably capable of achieving the end.
With the score 2-1 after three judgments, the last word on the rationality of the government’s disaster management regulations has certainly not been spoken. As things stand, the threshold appears to be very low, with not more than a whisper about the constitutional requirement that any limitation on rights and freedoms must comply with the prescribed requirements. At least one further tobacco case is in the offing, reportedly following a different tack to De Beer. This remains a space to watch.
 Minister of Constitutional Development v South African Restructuring and Insolvency Practitioners Association 2018 (5) SA 349 (CC) para .
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