On 2 June 2020, the Gauteng Division of the High Court declared that the Lockdown Regulations published under section 27(2) of the Disaster Management Act 57 of 2002 (“Act”) are unconstitutional and must be amended.
This judgment follows an urgent application brought on the basis that the reaction to the COVID-19 virus and the Lockdown Regulations are irrational. It was also alleged in the application that the Lockdown Regulations are against the basic human rights protected in the Constitution.
The High Court held that the decision to announce a nationwide lockdown was rational and that measures were urgently needed to prevent the spread of the COVID-19 virus and to “flatten the curve”. The High Court referred to section 27(3) of the Act where it is stated that regulations and directions may only be made if it is necessary for the following purposes:
- assisting and protecting the public;
- providing relief to the public;
- protecting property;
- preventing or combating disruption; or
- dealing with the destructive and other effects of the disaster.
However, when deciding to make regulations or directions for one or more of these purposes, there must be a rational connection between the regulations or directions and the purpose they are made for (“rationality test”). In other words, the end must justify the means and if it is not possible to completely prevent the spread of the COVID-19 virus, it must at least be limited whilst maintaining social cohesion and economic viability.
The High Court did not go into detail regarding the rationality of every aspect of the Lockdown Regulations. However, it highlighted a few rules where the rationality is in question, for example:
- The High Court mentioned that it is understandable to prevent an influx of visitors at a medical facility. However, a person may not visit a fatally ill loved one even if it is at the loved one’s own home, but once that loved one passes away, up to 50 people may gather for the funeral.
- In respect of exercise, the High Court mentioned that if the objective is to avoid having large groups of people in close proximity to each other, then the Lockdown Regulations should be clear on that and not prohibit the organising of same in an arbitrary fashion.
The High Court also held that some of the rules in the Lockdown Regulations are rational, for example, the measures put in place in respect of education, prohibitions against evictions, initiation practices and the closure of borders and certain facilities, such as night clubs and gyms.
Except for those rules that pass the rationality test specifically mentioned, the High Court declared the rest of the Lockdown Rules to be invalid and against the Constitution. It further suspended this invalidity for a period of 14 business days in order for the Lockdown Regulations to be amended.
This means that the Lockdown Regulations for Alert Level 3 will continue to apply until it has been amended. The High Court acknowledges that the danger of the COVID-19 virus still exists and that it might lead to “unmitigated disaster and chaos” if there are no regulations/restrictions to be followed. The Lockdown Regulations must remain in place in order to allow Government to assess and investigate the possible amendments in accordance with the High Court’s judgment.
In a media statement released on 4 June 2020 after a Cabinet meeting was held, the Government declared that they have decided to appeal the High Court’s decision. They also announced that the current national state of disaster will be extended until 15 July 2020. According to section 27(5) of the Act, a national state of disaster lapses after a period of three months, unless extended for one month at a time.
In light of the above, it is clear that only time will tell what the final outcome of the High Court’s judgment will be. In the meantime, South Africans must continue to comply with the Lockdown Regulations under Alert Level 3 until further notice.
Date Updated: 4 May 2020