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[2020] ZAWCHC 56
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Esau and Others v Minister of Co-operative Governance and Traditional Affairs and Others (5807/2020) [2020] ZAWCHC 56; 2020 (11) BCLR 1371 (WCC) (26 June 2020)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO:  5807/2020
In
the matter between:
DUWAYNE
ESAU
1
st
Applicant
NEO
MKWANE
2
nd
Applicant
TAMI
JACKSON
3
rd
Applicant
LINDO
KHUZWAYO
4
th
Applicant
MIKHAIL
MANUEL
5
th
Applicant
RIAAN
SALIE
6
th
Applicant
SCOTT
ROBERTS
7
th
Applicant
MPIYAKHE
DLAMINI
8
th
Applicant
and
THE
MINISTER OF CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL
AFFAIRS
1
st
Respondent
THE
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
2
nd
Respondent
THE
MINISTER OF TRADE, INDUSTRY AND COMPETITION
3
rd
Respondent
THE
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
IN
HIS CAPACITY AS THE CO-CHAIRPERSON OF THE
NATIONAL
CORONAVIRUS COMMAND COUNCIL
4
th
Respondent
THE
MINISTER OF CO-OPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS IN HER CAPACITY AS THE
CO-CHAIRPERSON
OF THE NATIONAL CORONAVIRUS
COMMAND
COUNCIL
5
th
Respondent
THE
NATIONAL CORONAVIRUS COMMAND COUNCIL
6
th
Respondent
THE
GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA
7
th
Respondent
THE
NATIONAL DISASTER MANAGEMENT CENTRE
8
th
Respondent
JUDGMENT
DELIVERED ON 26 JUNE 2020
ALLIE,
J:
1. Applicants seek,
inter
alia
, the following relief:
1.1. Declaring that:
1.1.1 the establishment
and existence of the sixth respondent (the Command Council') is
inconsistent with the Constitution of the
Republic of South Africa,
1996 ('the Constitution') and the Disaster Management Act 57 of 2002
('the Act'), and is invalid;
1.1.2 alternatively, to
the extent that the Command Council purports to duplicate and/or
supplant the functions of the National
Disaster Management Centre
established in Chapter 3 of the Act, the Command Council acts
unlawfully and in a manner that is inconsistent
with the Constitution
and the Act;
1.2. Declaring that any
decision taken or purported to have been taken by the Command Council
in relation to any matter in terms
of the Act is unconstitutional and
invalid.
1.3.
Declaring that —
1.3.1. the Disaster
Regulations issued in terms of section 27(2) of the Act published
under Government Notice No. R. 480 in Government
Gazette 43258 of 29
April 2020  (‘the Disaster Regulations’) are
unconstitutional and invalid;
1.3.2. alternatively,
regulations 16(1) — (4), 28(1), 28(3) and 28(4), read with Part
E of Table 1, of the Disaster Regulations
are unconstitutional and
invalid.
1.4. Suspending the
declaration of invalidity referred to in paragraph 1.3.1 above for a
period of 30 calendar days from the date
of this order.
1.5. Directing the first
respondent to correct the constitutional defects in the Disaster
Regulations within 30 calendar days of
this order.
1.6. Declaring
inconsistent with the Constitution and invalid, and reviewing and
setting aside, the 'Directions regarding the sale
of clothing,
footwear and bedding during alert level 4 of the Covid-19 national
state of disaster, published by the third respondent
under Notice R.
523 in Government Gazette 43307 of 12 May 2020.
2.
In paragraph 7 of the founding affidavit, applicants state the
following:
“
S
ome
aspects of the regime, though onerous, may be justified by the
legitimate government purposes of limiting the spread of Covid-19,

allowing the authorities the necessary time to ensure that South
Africa's health infrastructure is able to cope with a spike in

infections and promoting appropriate levels of general health and
hygiene. Unfortunately, many other aspects of the regime cannot
be
justified and bear no rational link to the objective of limiting the
spread and lessening the impact of Covid-19.”
3.
In amplification of the relief they seek, applicants state at
paragraph 10 of the founding affidavit as follows:
“
At the outset,
it is important to clarify that the applicants are not seeking to set
aside the regulatory regime that the respondents
have put in place to
combat Covid-19 (other than a set of directions promulgated by the
third respondent in respect of permissible
clothing). The applicants
confine the relief they seek to having the constitutional
invalidities in the regulations cured the respondents…”
Applicants’
Allegations
4.
Applicants allege the National Command Council “
has no legal
validity and no decision-making powers. Yet it has seemingly managed
and made decisions affecting all South Africans'
rights
.”
5.
Applicants aver that the President and the National Executive has
usurped Parliament’s powers unlawfully by establishing
and
granting powers to the National Coronavirus Command Council( ‘NCCC’)
that ought to vest with the National Disaster
Management Centre.
6.
Applicants allege that the CoGTA Minister made lockdown regulations
on 25 March 2020 that provided for a national 'lockdown'
from 26
March 2020 until 16 April 2020 without any public participation
process.
7.
Applicants allege that on 16 April 2020 the COGTA Minister amended
the Lockdown Regulations and extended the lockdown until 30
April
2020, again without following a public-participation process.
8.
Applicants challenge the correctness of the submission made by the
CoGTA minister at her presentation to the President and Cabinet
on 20
April 2020 where she referred to having considered input from sectors
and industry. Applicants question whether any input
could have been
obtained because they are not aware of any prior public participation
process inviting input.
9.
Applicants seize upon the following words in a slide that the CoGTA
minister presented as part of her presentation where she
said: “
Levels of alert for each province and district
will be
determined by the National Command Council
at each
meeting, upon a recommendation from the Minister of Health, the
Minister of Trade, Industry and Competition and the Minister
of
Cooperative Governance and Traditional Affairs...
decide
if we will use COVID-19 protocols for all funerals, or adopt a
dual system.”
10.
According to applicants, the emphasised portions, reflect an
intention to vest the National Command Council with unlawful and

impermissible decision-making powers.
11.
Applicants also rely on parts of the President’s public
speeches to reinforce their belief that the National Command Council

is vested with those powers. Extracts of a speech relied on are as
follows:
“
the
National
Coronavirus Command Council will determine the alert level
based on
an assessment of the infection rate and the capacity of our health
system to provide care to those who need it…
National
Coronavirus Command Council met earlier todav and determined that the
national coronavirus alert level will be
lowered
from level 5 to level 4
with
effect from Friday the 28
th
of May.
”
12.
The CoGTA Minister invited truncated public participation between 25
to 27 April 2020 on 'Schedule of Services Framework for
Sectors’
and then published a Schedule on 29 April 2020. The Schedule does not
contain the specific content of proposed regulations
but rather lists
sectors and sub sectors that would be allowed to open and operate.
13.
On 29 April 2020, the Minister of CoGTA made the Disaster Regulations
in terms of section 27(2) of the Act 4 days after publishing
the
Draft Schedule.
14.
The Disaster Regulations repealed and replaced the Lockdown
Regulations (regulation 2(1)). However, they allowed for the
continued
criminal prosecution of contraventions of the Lockdown
Regulations and provided for directions issued under the previous
regulations
to remain in force until withdrawn or amended (regulation
2(2) and (3)).
15.
In terms of regulation 15(1) of the Disaster Regulations, the whole
of South Africa moved to 'Alert Level 4' with effect from
1 May 2020,
in accordance with the Command Council's decision as communicated by
the President on 23 April 2020 and confirmed by
the COGTA Minister.
16.
Since then, various directions have been published by members of the
National Executive. One is the 'Directions regarding the
sale of
clothing footwear and bedding during alert level 4 of the Covid-19
national state of disaster,’ published by the
Trade Minister on
12 May 2020.
17.
On 13 May 2020, in his address to the nation, the President said:
that ‘there would be public consultation with
relevant
stakeholders on a proposal that by the end of May, most of the
country be placed on alert level 3, but that those parts
of the
country with the highest rates of infection remain on level 4'.
Furthermore, he said: 'in the coming days, we will also
be announcing
certain changes to level 4 regulations to expand permitted business
activities in the retail space and e-commerce
and reduce restrictions
on exercise'.
18.
Applicants disavow any knowledge of a public participation process in
relation to a reduced level, namely level 3 and level
4 in parts of
the country.
19.
Applicants detail the economic harm to the country occasioned by
government’s response to the Covid-19 pandemic.
20.
Applicants also refer to allegations of abuse and violations of the
law by members of law enforcement agencies during the lockdown.
21.
Applicants allege that level 4 restrictions are very similar to the
initial lockdown restrictions and they go on to allege that
level 3
restrictions will be similar as well. Applicants also hold the view
that parts of the country will not move to level 3
restrictions but
will remain on level 4 restrictions.
22.
Applicants believe that if the country or part of it is placed back
onto a higher level, then the previous restrictions pertaining
to
that level will remain in place and become applicable, hence they
assert the need for the relief they seek to have the regulations

declared unconstitutional.
Applicants’
version concerning the  operative legal framework
23.
Applicants hold the view that the National Disaster Management Centre
hold the power to 'promote an integrated and co-ordinated
system of
disaster management, with special emphasis on prevention and
mitigation' in terms of section 9 of the Disaster Management
Act 57
of 2002 ( DMA) According to applicants, the Centre  is the
primary body established by the Act to manage and
coordinate
the government's response to national disasters.
24.
Applicants allege as follows: “
Parliament clearly envisioned
the need for a coordinating body, with advisory and recommendatory
powers. It had a particular structure
in mind, with a particular
framework and composition. That structure is the Centre. However, all
of the carefully calibrated provisions
set out in Chapter 3 of the
Act are meaningless if the National Executive and the President can
create their own separate, independent
and unaccountable structure
.”
25.
Applicants aver that the making of regulations constitute
administrative action because it amounts to implementing
administrative
policy and the Promotion of the Administrative Justice
Act, No 3 of 2000 (‘PAJA’) applies. Applicants argue that
the
regulations ought to be considered against standards of
lawfulness, reasonableness and procedural fairness set out in section
33(1)
of the Constitution and section 6(2) of PAJA.
Relevant
Provisions of the
Disaster Management Act 57 of 2002
26.
It is important at the outset to consider the salient provisions of
the
Disaster Management Act (DMA
) to contextualise the issues.
27.
The preamble sets out the purpose of the DMA as follows:
“
To
provide for-
an
integrated and co-ordinated disaster management policy that focuses
on preventing or reducing the risk of disasters,
mitigating
the severity of disasters, emergency preparedness, rapid and
effective response to disasters and post-disaster recovery
and
rehabilitation;
the
establishment and functioning of national, provincial and municipal
disaster management centres;
disaster
management volunteers
; and
matters
incidental thereto
.”
(
my emphasisi)
28.
The preamble itself has a catch-all provision that extends the
parameters of the Act to ancillary and related issues to disaster

management.
29.
The DMA defines disaster management as follows:
“
continuous
and integrated multi-sectoral, multi-disciplinary process of planning
and implementation of measures aimed at-
(a)
preventing or reducing the risk of disasters;
(b)
mitigating the severity or consequences of disasters;
(c)
emergency preparedness;
(d)
a rapid and effective response to disasters; and
(e)
post-disaster recovery and rehabilitation;”
30.
The definition of disaster risk reduction is defined as follows:
“
means
either a policy goal or objective, and the strategic and instrumental
measures employed for-
(a)
anticipating future disaster risk;
(b)
reducing existing exposure, hazard or vulnerability; and
(c)
improving resilience
;”
31.
The definition of emergency preparedness extends beyond state
institutions and government to the private sector, communities
and
individuals as follows:
“
(a)
a state of readiness which enables organs of state and other
institutions involved in disaster management, the private sector,

communities and individuals to mobilise, organise and provide relief
measures to deal with an impending or current disaster or
the effects
of a disaster; and
(b)
the knowledge and capacities developed by governments, professional
response and recovery organisations, communities and individuals
to
effectively anticipate, respond to and recover from the impacts of
likely, imminent or current hazard events or conditions
;”
32.
A further relevant definition in the DMA is that of risk assessment
which is as follows:
“
means
a
methodology
to
determine the nature and extent of risk
by
analysing
potential
hazards and
evaluating
existing
conditions
of vulnerability
that
together could
potentially
harm exposed people, property, services, livelihoods
and
the environment on which they depend”
(
my emphasis)
33.
The Section 1 of the DMA extends the definition of risk assessment to
the objective of protecting lives and livelihoods. Section
27(3)
provides that the power exercised under section 27(2) may be
exercised only to the extent that it is necessary for the purpose
of,
inter alia
: section 27 (3) (e) “
dealing
with the destructive and other effects of the disaster
.”
To suggest, as applicants do, that saving livelihoods is an objective
that’s not permissible on a restrictive interpretation
of
section 27(3), is incorrect. There would be no need to evaluate the
risks to livelihoods if its protection was not an objective.
34.
The operation of the Act is excluded from occurrences that can be
dealt with effectively in terms of other national legislation.
35.
Section 4 of the DMA establishes an Intergovernmental Committee which
comprises,
inter alia,
Cabinet members involved in disaster
management and section 4(3) (b) and (c) provides that the Minister is
accountable and must
report to Cabinet on the co-ordination of the
disaster management but she must also advise and make recommendations
to Cabinet.
36.
Section 5 establishes a National Disaster Management Advisory Forum
which includes the head of the National Disaster Management
Centre
(Centre), representatives of various spheres of government and civil
society, labour, religious bodies as well as experts
in disaster
designated by the Minister that serves as a platform for disaster
risk reduction.
37.
Section 6 provides that before the Minister can prescribe a national
disaster management
framework
, she has to take account of the
Intergovernmental Committee’s recommendations as well as
comments submitted by the public
and she must publish a proposed
framework in the Gazette for public comment. Public participation is
prescribed for the making
of a framework not for the making of
regulations.
38.
In terms of section 7 the framework is meant to prescribe a
comprehensive, transparent and inclusive
policy
on disaster
management in general which establishes core principles.
39.
Section 8 establishes the National Disaster Management Centre and
section 9 states that its objective is to promote an integrated
and
co-ordinated system of disaster management with special emphasis on
prevention and mitigation by national, provincial and municipal

organs of state, statutory functionaries, other role-players and
communities.
40.
Section 15 sets out the general duties and functions of the Centre as
follows:
(1)
The National Centre must, subject to
other provisions of this Act, do all that is necessary to achieve its
objective as set out
in section 9, and, for this purpose-
(a)
must specialise in issues concerning
disasters and disaster management;
(b)
must monitor whether organs of state and statutory functionaries
comply with this Act and the national disaster management framework

and must monitor progress with post-disaster recovery and
rehabilitation;
(c)
must act as a repository of, and conduit for, information concerning
disasters, impending disasters and disaster management;
(d)
may act as an advisory and consultative body on issues concerning
disasters and disaster management to-
(i)
organs of state and statutory functionaries;
(ii)
the private sector and non-governmental organisations;
(iii)
communities and individuals; and
(iv)
other governments and institutions in southern Africa;
(e)
must make recommendations regarding the funding of disaster
management and initiate and facilitate efforts to make such funding

available;
(f)
must make recommendations to any relevant organ of state or statutory
functionary-
(i)
on draft legislation affecting this Act, the national disaster
management framework or any other disaster management issue;
(ii)
on the alignment of national, provincial or municipal legislation
with this Act and the national disaster management framework;
or
(iii)
in the event of a national disaster, on whether a national state of
disaster should be declared in terms of section 27;
(g)
must promote the recruitment, training and participation of
volunteers in disaster management;
(h)
must promote disaster management capacity building, training and
education throughout the Republic, including in schools, and,
to the
extent that it may be appropriate, in other southern African states;
(i)
must promote research into all aspects of disaster management;
(j)
may assist in the implementation of legislation referred to in
section 2(1) (b) to the extent required by the
administrator
of such legislation and approved by the Minister; and
(k)
may exercise any other powers conferred on it, and must perform any
other duties assigned to it in terms of this Act.
(2)
The National Centre may-
(a)
engage in any lawful activity,
whether alone or together with any other organisation in the Republic
or elsewhere, aimed at promoting
the effective exercise of its powers
or the effective performance of its duties;
(a)
in any event of a disaster, or a potential disaster, call on the
South African National Defence Force, South African Police
Service
and any other organ of state to assist the disaster management
structures;
(b)
exchange information relevant to disaster management with
institutions performing functions similar to those of the National

Centre in the Republic and elsewhere.
(3)
The National Centre must exercise its powers and perform its duties-
(a)
within the national disaster management framework;
(b)
subject to the directions of the Minister; and
(c)
......
(d)
subject to the Public Finance Management Act, 1999
(4)
The National Centre must liaise and co-ordinate its activities with
the provincial and municipal disaster management centres.
41.
The duties of national government to set out a national disaster
management plan is not restricted to the designated Minister,
who
currently is, the minister of CoGTA but it is a duty to mainstream a
plan in each department of national government. The DMA
involves
Cabinet Ministers in the development of disaster management plans
with specific reference to their specific functional
areas. Section
25 provides as follows:
“
25
Preparation
of disaster management plans
(1)
Each national organ of state must-
(a)
conduct a disaster risk assessment for its functional area;
(b)
identify and map risks, areas, ecosystems, communities and households
that are exposed or vulnerable to physical and human-induced
threats;
(c)
prepare a disaster management plan setting out-
(i)
the way in which the concept and principles of disaster management
are to be applied in its functional area, including expected
climate
change impacts and risks for the organ of state;
(ii)
its role and responsibilities in terms of the national or provincial
disaster management framework;
(iii)
its role and responsibilities regarding emergency response and
post-disaster recovery and rehabilitation;
(iv)
its capacity to fulfil its role and responsibilities;
(v)
particulars of its disaster management strategies;
(vi)
contingency strategies and emergency procedures in the event of a
disaster, including measures to finance these strategies;
and
(vii)
specific measures taken to address the needs of women, children, the
elderly and persons with disabilities during the disaster
management
process;
(d)
co-ordinate and align the implementation of its plan with those of
other organs of state and institutional role-players;
(e)
provide measures and indicate how it will invest in disaster risk
reduction and climate change adaptation, including ecosystem
and
community-based adaptation approaches;
(f)
develop early warning mechanisms and procedures for risks identified
in its functional area; and
(g)
regularly review and update its plan ”
42.
The responsibilities of national government are prescribed in section
26 as follows:
(1)
The national executive is primarily
responsible for the co-ordination and management of national
disasters irrespective of whether
a national state of disaster has
been declared in terms of section 27.
(2)
The national executive must deal with a national disaster-
(a)
in terms of existing legislation and contingency arrangements, if a
national state of disaster has not been declared in terms
of section
27 (1); or
(b)
in terms of existing legislation and contingency arrangements as
augmented by regulations or directions made or issued in terms
of
section 27 (2), if a national state of disaster has been declared.
43.
Section 27(3) describes the objects of the regulations in broad
terms.
44.
Section
27 (2) provides that:
“
If
a
national state of disaster has been declared in terms of subsection
(1), the Minister may, subject to subsection (3), and after

consulting the responsible Cabinet member, make regulations or issue
directions or authorise the issue of directions concerning
,
inter
alia:… the release of available resources, release of
personnel, implementation of  a disaster plan, evacuation
of an
area, regulation of traffic,
regulation
of movement of persons and goods, control and occupancy of premises,
provision, control and use of temporary emergency
accommodation,
suspension or limitation on sale of alcohol, dissemination of
information required for the disaster, other steps
that may be
necessary to prevent an escalation of the disaster, or to alleviate,
contain and minimise the effects of the disaster.
.”(my
emphasis)
45.
The emphasised purposes for which regulations may be made, extend to
the content of disaster regulations which applicants complain
of,
namely the movement of persons which is a limitation on the
Constitutional right of freedom of movement and residence; the

restriction on the movement of goods and services, which is a
limitation on human dignity, the restriction on control of and
occupancy
of premises, which is a limitation on the right of freedom
of residence.
46.
Section 27(2) of the DMA allows regulations to be made to address the
requirement of providing necessary information for dealing
with the
disaster;
other steps that may be necessary to
prevent an escalation of the disaster; or to alleviate, contain and
minimise the effects of
the disaster.
47.
It also expressly authorises the making of
regulations to alleviate the consequences of the disaster, which is
what most regulations
designed to gradually reopen the economy do.
48.
More pertinently, it permits dealing with the
effects of the disaster which, includes what the Minister of the DTIC
describes as
the prevention of unfair competition and price-fixing
objectives.
49.
Section 27(2) authorises the Minister of the CoGTA to make
regulations or issue directions or authorise the issue of directions.

The Minister of the CoGTA states that she incorporates by reference
the content of the Minister of the DTIC’s affidavit,
which she
clearly reconciles with. The Minister of the DTIC states that he is
authorised by Regulation 4(6) to make directions
to protect consumers
from excessive, unfair, unreasonable or unjust pricing and services
and to prescribe the availability of the
supply of goods as well as
to address, prevent and combat the spread of Covid-19.
50.
The DMA keeps in place existing legislation, such as the Competitions
Act, which permits the attainment of the objective of
protecting
consumers from being charged high prices for goods and services in
circumstances where artificial shortages of supply
are created to
enhance inflated pricing.
51.
The objective of preventing price-fixing and the concomitant unfair
competition that accompanies it is authorised by regulation
4(6) but
it arises now in the time of COVID 19 related regulations, as a
consequence of the disaster and therefore, it is also
not
inconsistent with the DMA which allows the Minister of CoGTA to
address in regulations, and to authorise other Ministers to
make
directions, to deal with
any consequence
that flow from the
disaster and the management measures employed to contain it.
Applicants
Submissions on whether the NCCC is Legal and the role it plays
52.
It is common cause that
no one may exercise a public power unless that power has been
conferred upon that person by law.
[1]
This is the fundamental principle of legality, applicable to the
exercise of public power. That is the yardstick against which

Respondents’ conduct complained of, must be measured.
53.
Applicants argue that because the National Coronavirus Command
Council (NCCC) was vested with the power to make decisions concerning

the level of restrictions that the country ought to be placed under
and to make decisions concerning protocols to be adopted at
funerals,
the making of regulations designed to give effect to those decisions
and accordingly the regulations are flawed by the
NCCC’s role
in their conceptualisation.
54.
The applicants’ argument goes further to conclude that the
CoGTA minister and the President fettered their discretion
by
abdicating their responsibilities under the Act in allowing the NCCC
to dictate the policy and content of the regulations.
55.
It is further submitted by applicants that the Director-General in
the Presidency stated that the NCCC co-ordinates government’s

response to the Covid-19 pandemic and facilitates consultation among
cabinet members but those functions ought to be carried out
by the
Disaster Management Centre.
56.
Applicants argue the following:
56.1 That section
85(2)(c) of the Constitution grants Cabinet and the President the
power to co-ordinate government departments
and not the NCCC;
56.2 The President
however stated in his public speech that the NCCC will co-ordinate
government’s efforts to curb the spread
of Covid-19;
56.3 In answer to a
question in Parliament concerning whether there is any delegation of
power to the NCCC, the President said,
no;
56.4 The DMA grants the
Disaster Management Centre the power to co-ordinate and not a body
like the NCCC
56.5 Respondents say the
NCCC makes policy decisions and the NCCC decides on regulations to be
made under the DMA, hence applicants
says its role is unlawful;
56.6 Respondents allege
that NCCC’s decisions are implemented by respondents although
the NCCC has no lawful authority to
make those decisions.
56.7 Not only must the
establishment of the NCCC be declared unconstitutional and invalid
but all decisions made by it must be declared
unconstitutional and
invalid;
56.8 Applicants deny the
Minister of CoGTA’s assertion that the NCCC was set up as a
structure of Cabinet and is its sub-committee
because the Minister
produced no document proving the allegation.
Respondents
Argument
57.
Respondent’s allege that the National Coronavirus Command
Council initially comprised of 19 cabinet members but soon it
was
expanded to include the entire Cabinet.
58.
Its decisions as a council were conveyed as proposals which
facilitated discussions and advised Cabinet and the President on

whether to adopt them.
59.
The individual ministers use the NCCC as a consultative forum of
peers;
60.
The individual ministers promulgate regulations and not the NCCC.
61.
The reference to decision making by the NCCC is an unfortunate use of
words as it is meant to convey that Cabinet members, in
consultation
with one another, made certain decisions.
62.
Section 85 of the Constitution grants Cabinet the power to regulate
its own process as it does not prescribe how Cabinet can
arrange
itself, meet and determine their
modus operandi
.
63.
Cabinet can arrange itself as it deems fit and there is no
constitutional prohibition on meeting as a cluster or council of

cabinet members
64.
Respondent say the NCCC was established specifically to enable
Cabinet to deal exclusively with Covid-19 issues at its meeting
as
opposed to other general Cabinet business and meetings.
65.
Respondents’ counsel submitted that:
65.1 Applicant’s
counsel makes an elementary error when he argued that if the
Constitution does not confer a power, then the
power does not exists;
65.2 Applicant’s
counsel misconceive the Constitution by interpreting it as not
allowing cabinet to establish committees such
as the NCCC;
65.3 There is no need for
a delegation of power, as suggested by Applicants, because Cabinet
and The President did not delegate
powers to the NCCC or any other
structure;
66.
Respondents rely on the
case of
Matatiele
Municipality
[2]
where it was held that the power to do something includes the
power to what is necessary to give effect to that power.
67.
Respondents argue that
they have ancillary powers to do what is necessary to fulfil their
collective duty to manage the disaster.
For that proposition, they
rely on
Chonco’s
[3]
case where the Constitutional Court held at [29]
“…
A
function is a tasked duty to act in terms of the Constitution or
legislation. A functionary will have the power necessary to fulfil

its performance
.”
Analyses
of Applicant’s submissions on the Constitutionality of the NCCC
68.
Applicants challenge the veracity of first respondent’s
allegations that the NCCC is a committee of Cabinet because they
say
she also said that it is the Cabinet. Nowhere in the papers does the
first respondent say that it is Cabinet. She explained
that it is now
comprised of all Cabinet members.
69.
Applicants take the word “coordinate” which is a
description first respondent assigns to the NCCC out of context
and
claim that coordinating is a function that the DMA grants the Centre.
The DMA grants the Centre the power to coordinate the
responses of
different spheres of Government and the private sector, namely
stakeholders and NGOs, but does not elevate the Centre’s

co-ordinating function to one to be exercised by it exclusively nor
primarily.
70.
Presented with counsel for 8
th
applicant’s narrow
interpretation of section 85 of the Constitution, that argument would
lead to the conclusion that the
President would not have the power to
obtain advice before exercising the powers granted to him by the
section. That would be an
absurd construction to place on section 85.
71.
The Constitutional structure of Cabinet and the powers and duties of
its members merit repeating here.
72.
It is necessary for Cabinet to have the power to assign functions to
its own committees. It has been doing so in structuring
itself into
clusters. Prior to the establishment of the NCCC.
73.
Murray and Stacey, in Chapter 18:
The President and the National
Executives in the work entitled:
Constitutional Law of
South Africa (CLOSA) Volume 1, 2
nd
edition, provide the
following elucidating discussion on how the powers of Cabinet are
exercised within governments with features
of the Westminister system
and how Cabinet functions.
74.
As Murray and Stacey write at page 18-28 “
Under the Final
Constitution, the choice of members, reallocation of portfolios and
dismissal of members is entirely at the discretion
of the
President
.”
75.
At pages 18-29 to 18-30, Murray and Stacey go on to say that:
Modern Cabinets rely
on Cabinet (ministerial) committees to enable them to handle the
large volume of work that they must do, to
facilitate co-ordination
amongst government departments and to give ministers who must work
together, but who may disagree, the
opportunity to resolve their
disagreements properly. In 1998, the report of the Presidential
Review Commission identified poor
coordination of government
activities and policy as a significant problem. In response to this
report, the relatively small Cabinet
committees system was
transformed into what is now commonly referred to as the system of
‘Cabinet Clusters’. The clusters
consist of six Cabinet
committees that draw together related departments and parallel
clusters of departmental directors-general.
According to the
Presidency, ‘Cabinet Committees meet to discuss areas of work,
facilitate collaborative decision-making,
and make recommendations to
Cabinet’…What is clear is that proposed legislation and
major policy initiatives are considered
by the full Cabinet at its
weekly meetings. Generally, it appears that Cabinet does not vote -
although voting has occurred on
occasion.
”
76.
Section 85(2) of the Constitution sets out the executive powers of
the President and Cabinet in 5 listed aspects, namely:
(a) Implementing national
legislation except where the Constitution or an Act of Parliament
provides otherwise;
(b) Developing and
implementing national policy;
(c) Co-ordinating the
functions of state departments and administration;
(d) Preparing and
initiating legislation; and
(e) Performing any other
executive function provided for in the Constitution or national
legislation
77.
In dealing with nature of
legislative powers and the delegation thereof, the Constitutional
court in
Constitutionality
of the Mpumalanga Petitions Bill
[4]
held as follows:
“
[19]
The
Premier’s complaint is also directed at the delegation of the
legislature’s legislative or rule-making authority
to the
Speaker.  Regulations are a category of subordinate legislation
framed and implemented by a functionary or body other
than the
legislature for the purpose of implementing valid legislation.
Such functionaries are usually members of the executive
branch of
government, but not invariably so.  A legislature has the power
to delegate the power to make regulations to functionaries
when such
regulations are necessary to supplement the primary legislation.
Ordinarily the functionary will be the President
or the Premier or
the member of the executive responsible for the implementation of the
law.  In Executive Council of
the Western Cape Legislature
and Others v President of the Republic of South Africa and Others,
Chaskalson P stated that:
‘
In
a modern state detailed provisions are often required for the purpose
of implementing and regulating laws and Parliament cannot
be expected
to deal with all such matters itself.  There is nothing in the
Constitution which prohibits Parliament from delegating
subordinate
regulatory authority to other bodies.  The power to do so is
necessary for effective law-making.  It is implicit
in the power
to make laws for the country and I have no doubt that under our
Constitution Parliament can pass legislation delegating
such
legislative functions to other bodies.’
The
factors relevant to a consideration of whether the delegation of a
law-making power is appropriate are many.  They include
the
nature and ambit of the delegation, the identity of the person or
institution to whom the power is delegated, and the subject
matter of
the delegated power
.”
78.
The Minister of CoGTA in this instance, implemented national
legislation when making regulations under the DMA. In so doing,
she
exercised delegated legislative authority granted to her by
Parliament. She derives her powers to do so from the DMA, which
is
not the subject of a constitutional challenge in this matter.
79.
Section 92 of the Constitution provides that:
(1)
the Deputy President and Ministers are responsible for the powers
assigned to them by the President.
(2)
Members of the Cabinet are accountable collectively and individually
to Parliament for the exercise of their powers and performance
of
their functions.
(3)
Members of Cabinet must-
(a)
Act in accordance   with the Constitution; and
(b)
Provide Parliament with full and regular reports concerning matters
under their control.
80.
Section 92(2) clearly affirms the principle of Cabinet’s
collective accountability and responsibility.
81.
Neither the DMA nor the regulations infringe on the accountability
duty the Ministers of CoGTA and DTIC have to Parliament.
82.
The President together with Cabinet exercises overall authority to
co-ordinate the functions of state departments and administrations
in
terms of section 85(2) (c) of the Constitution. That is not a
function that they can delegate to the Centre nor does Parliament

have the authority to cause them to do so through legislation such as
the DMA. Applicants’ contention that the DMA vests
the
authority to co-ordinate government functions in the Centre are
diametrically opposed to the Constitution.
83.
A Cabinet member may however assign his/her powers and functions to a
member of a provincial Executive Council or to a Municipal
Council in
certain circumscribed instances set out in section 99 of the
Constitution.
84.
Section 101 of the Constitution sets out when the President’s
decisions have to be in writing, namely if it is taken in
terms of
legislation or if it has legal consequences.
85.
Respondents state that the NCCC is a committee of Cabinet working
exclusively on Covid-19 related issues. They assert their
right to
organise Cabinet into working committees for specific purposes and
they do not rely on legislative authority to do so.
They also allege
that Cabinet takes collective decisions on issues discussed in the
NCCC, where they are required to do so and
individual Cabinet members
similarly take decisions that emanate from discussions at the NCCC
when they are required to do so.
86.
There are no grounds on which to second-guess those allegations made
by respondents because applicants have produced no evidence
to
gainsay those allegations. Instead, they rely on pure conjecture.
87.
The affidavit of the DTIC Minister illustrates the process amply
where he states that he suggested that the reopening of the
economy
occur over a period of three weeks with full resumption by the
beginning of May but his views did not carry the consensus
of his
colleagues as a full reopening would have occurred when the country
was not prepared to manage a high surge in infections
and ultimately
a risk adjusted strategy of gradual reopening was adopted and
implemented.
88.
Respondents have stated that there is no written authority in terms
of which the NCCC has been established but applicants persist
in
their demand that there has to be written authority authorising the
creation of the NCCC. In terms of section 101 of the Constitution,

the President does not have to reduce to writing, the establishment
of a committee such as the NCCC.
89.
Murray and Stacey at page 18-32 writes about the three rules
underpinning the principle of collective Cabinet responsibility
or
solidarity thus:
“
Although
the exact parameters of the doctrine are not fixed, as Marshall
[5]
describes,
“there are three traditional branches to the collective
responsibility convention: the confidence rule the unanimity
rule and
the confidentiality rule.” The ‘confidence rule, ’
which requires the Cabinet to retain support (or
confidence) of
Parliament to remain in power is constitutionalised in South Africa
in the provision concerning a vote of no confidence.
The ‘unanimity
rule’ is implied in the F[inal] C[onstitution] ss 85(2) and 92:
in the references to Cabinet acting
‘together’ and in its
collective accountability to Parliament. The ‘confidentiality
rule’ which protects
the confidentiality of discussions in
Cabinet, is not specified in the Final Constitution but is applied in
practice.
The
convention was developed in Britain as politicians sought to assert
greater control of government.”
90.
Confidentiality of Cabinet discussions are protected by
section 12
(a) of the
Promotion of Access to Information Act 2 of 2000
which
excludes Cabinet  and its committees from having to grant access
to information required for the exercise or protection
of rights.
91.
In
SARFU III,
[6]
the Constitutional
Court recognised the significance of the confidentiality rule at
[243]:
“
We
are of the view that there are two aspects of the public interest
which might conflict in cases where a decision must be made
as to
whether the President ought to be ordered to give evidence. On the
one hand, there is the public interest in ensuring that
the dignity
and status of the President is preserved and protected,
that
the efficiency of the executive is not impeded and that a robust and
open discussion take place unhindered at meetings of the
Cabinet when
sensitive and important matters of policy are discussed.
Careful
consideration must therefore be given to a decision compelling the
President to give evidence and such an order should not
be made
unless the interests of justice clearly demand that this be done. The
judiciary must exercise appropriate restraint in
such cases,
sensitive to the status of the head of state and the integrity of the
executive arm of government. On the other hand,
there is the equally
important need to ensure that courts are not impeded in the
administration of justice
.
(my emphasis
)
92.
In
casu
,
the President established the NCCC which according to the Minister of
CoGTA, comprised some Cabinet members and later all the
Cabinet
members were added.
93.
When the Minister asserts that minutes of Cabinet meetings as well as
those of its committees including the NCCC are confidential,
there is
nothing sinister or un-transparent about it.
94.
Confidentiality is the mechanism by which Cabinet protects the
integrity of its discussions.
95.
The
Minister of CoGTA says the following about the functioning of the
NCCC:
95.1
It is a body
of Cabinet established to address the pandemic, which continues to
change rapidly, in a swift and effective manner;
95.2
It was
necessary for the President and Cabinet to meet more frequently than
they ordinarily would and deal with Covid-19 related
issues only on
the agenda;
95.3
It is
a structure of Cabinet comprising only Cabinet members;
95.4
It
received inputs and reports from the National Joint Intelligence and
Operational Structure (NAT JOINTS) in the form of technical

assistance. NAT JOINTS has many workstreams including health
workstreams;
95.5
It
acts as a forum for discussion and debate on Covid-19 related issues;
95.6
Cabinet
members are able to consult one another through the NCCC and outside
of it as well on difficulties and concerns encountered
with the
measures taken to address Covid-19;
95.7
The
President established the NCCC in terms of the powers vested in him
as the head of the executive authority, which he exercises
with
Cabinet;
95.8
The
Constitution does not prescribe to the President and Cabinet how to
structure themselves internally and Cabinet determines its
own
internal rules, practices and committees;
95.9
Parliament
has a number of committees that are focussed on specific issues,
usually referred to as clusters and the NCCC was established
as a
committee of Cabinet designed to deal specifically with Covid-19
related issues;
95.10
The
Minister of CoGTA readily concedes that the language she and the
President used in referring to decisions of Cabinet concerning

government’s response to Covid-19 reflected the NCCC as the
decision-making body and not Cabinet. She attributes this to
the fact
that the entire Cabinet also constituted the entire NCCC and that
resulted in the loose use of language and those statements
on the
NCCC could have caused applicants to be misled.
95.11
The
NCCC enables swifter and more focussed discussion between the
Minister of CoGTA and other Cabinet members, it coordinates,
facilitates and implements the government’s response to the
Covid-19 pandemic.
95.12
The
NCCC meets approximately three times per week and the format of its
meetings include a report by the Minister of Health on statistics

with regard to infections and deaths; NAT JOINTS would report for
example, on the procurement of Personal Protective Equipment
(PPE),
social relief schemes and challenges experienced under the
regulations; various Ministers would make requests or presentations;

discussions ensue and conclusions are reached which are then taken
forward by the relevant Ministers authorised to make final decisions;
95.13
Debates
at the NCCC are at a high level of principle and concerns raised, but
the relevant Minister is still individually responsible
for preparing
his/her own regulations.
96.
Hence the President’s decision to establish the NCCC is neither
a decision made in terms of legislation nor are the decisions
of the
NCCC capable of having legal consequences because they are subject to
acceptance, rejection or modification by Cabinet and
where
applicable, individual Cabinet members.
97.
There is no legislative imperative for the Minister to consult with
the entire Cabinet. Therefore, if the NCCC initially comprised
of
only some Cabinet members and the Minister consulted with the NCCC
prior to making regulations or issuing directions, then she
can’t
be found wanting in that regard.
98.
The decision to make the regulations, was, as both ministers are at
pains to point out, part of a deliberative and consultative
process.
They consulted their fellow cabinet members, various role players,
NATJOINTS, the Health advisory council, the Centre
and various organs
of state. The ultimate decision as to the formulation of disaster
management regulations were made by the minister
concerned, alone.
99.
There is nothing extraordinary about that. The Act provides that the
relevant minister make that decision alone.
100.
It is artificial to sever the minister’s final decision-making
process from the deliberative process that preceded it,
as the
applicants do, and then to argue that since she made the decision
alone, it is administrative action but had it been a deliberative

process, it would have been executive action.
NCCC’s
alleged unlawful usurpation of the functions of the Centre
101.
The
Centre facilitates consultations between various organs of state,
departments spheres of government and other stakeholders but
it is
not meant to take over the functions of Cabinet in the event of a
national disaster.
102.
The National Disaster Management Centre
is established within the public service and its head is appointed as
a public service employee;
The objective of the Centre is to promote
an integrated and co-ordinated disaster management system with
emphasis on prevention
and mitigation, i.e. its section 9 objectives.
103.
Section 15 (1) of the DMA prescribes how
the Centre’s must achieve its section 9 objective. The National
Disaster Management
Centre and section 15(1) (d) states that the
Centre
may
act as an advisory and consultative body to statutory functionaries;
private sector; non-governmental organisations; communities;

individuals; other governments and institutions in southern Africa.
The role of the Centre to fulfil advisory and consultative
functions
is not peremptory but discretionary.
104.
The role of the Centre in section 15 (1)
(j) is that the Centre
may
assist in the implementation of legislation subject to the words:”
to the extent required by the
administrator of such legislation and approved by the Minister”.
The role of the Centre in assisting in implementation of legislation
is not mandatory but optional and the Minister is vested with
the
discretion to define the assistance, if any, required by the Centre.
105.
Section 15(1) (k) provides that the Centre
may
exercise any
other power conferred on it and must perform all other duties
assigned to it by the Act.
106.
Section 20 provides that the Centre,
to the extent that it has the
capacity
, must give guidance to organs of state; the private
sector; non-governmental organisations; communities and individuals
to reduce
the risk of disasters including,
inter alia
, ways
and means of determining risk. From the papers it is clear that the
Centre fulfils this function to the extent that it can
and reliance
is also placed on Health Ministry’s Medical Advisory Council
who clearly has more capacity than the Centre to
determine how the
risk of the spread of the virus should be reduced. That advice is of
course, subject to the Minister and the
rest of Cabinet taking
collective decisions which impact on functional areas of other
Cabinet members in the final analyses.
107.
Section 24 provides for the Centre to report to the minister
annually.
108.
The provisions of the Act do not place the Centre as the authority
vested with the power to manage disasters exclusively, solely
or
primarily. The Act prescribes a role for the Centre which is
supplementary to that of the National Executive and the Minister
in
particular. That role includes advising, facilitating, recommending,
co-ordinating and collating a data base. But nowhere in
the Act does
it stipulate that those functions are exclusively to be carried out
by the Centre. In fact, the hierarchy of the Act
makes it clear that
the Centre is subordinate to the Minister and the National Executive.
109.
Section 26(2) mandates the national executive to deal with a national
disaster not the Centre.
110.
In my view,
Cabinet members are obliged to consult with one another on a
coordinated response to Covid-19. The Minister of CoGTA
is obliged,
in terms of the DMA, to consult with relevant Cabinet members before
making disaster management regulations. Since
Cabinet functions on a
consensus building basis, with few reasons to vote, as outlined in
the work by Murray and Stacy, discussed
above, it is not out of
character with Cabinet’s prevailing practice to seek consensus
and cooperation from all its members
in an informed manner given the
nature and extent of the global pandemic that they are mandated to
respond to. Cabinet’s
consensus building mechanism, in this
instance, the NCCC, does not detract from its obligation to consult
with the Centre.
111.
From Dr Tau’s
affidavit, the head of the Centre, one gleans that he and the Centre
are integrally involved in consultations
with Cabinet as well as with
other organs of state, spheres of government and other role-players
in promoting the integration of
disaster management.
112.
I find no
basis for the conclusion pressed for by applicants, namely, that the
NCCC unlawfully usurped the powers of the Centre.
Grounds
for Review
113.
Section 1 of Promotion of Just Administration Act of 2000 (PAJA)
defines administrative action as follows:
“…
means
any decision taken, or any failure to take a decision, by – (a)
an organ of state, when –
(i) exercising a power
in terms of the Constitution or a provincial constitution; or
(ii) exercising a
public power or performing a public function in terms of any
legislation; ”
114.
Section 1 excludes expressly and thereby determines which conduct of
the national executive can not be construed as administrative
action
and lists in paragraph (aa) ” the executive powers or functions
of the National Executive, including the powers or
functions referred
to in sections 79(1) and (4), 84(2)(a), (b), (c), (d), (f), (g), (h),
(i) and (k), 85(2)(b), (c), (d) and (e),
91(2), (3), (4) and (5),
92(3), 93, 97, 98, 99 and 100 of the Constitution;”.
115.
Notably it does not exclude section 85(2)(a) of the Constitution,
namely implementing national legalisation except where the

Constitution or Legislation provides otherwise.
116.
Section 3 (2) of PAJA prescribes the criteria for fair administrative
action:
“
(
2)
(a) A fair administrative procedure depends on the circumstances of
each case. (b) In order to give effect to the right to procedurally

fair administrative action, an administrator, subject to subsection
(4), must give a person referred to in subsection (1) –
(i) adequate notice of
the nature and purpose of the proposed administrative action;
(ii) a reasonable
opportunity to make representations;
(iii) a clear
statement of the administrative action;
(iv) adequate notice
of any right of review or internal appeal, where applicable; and
(v) adequate notice of
the right to request reasons in terms of section 5
.”
117.
Section 3(4) provides for a departure from the process prescribed in
subsection 2:
“
(4) (a) If it
is reasonable and justifiable in the circumstances, an administrator
may depart from any of the requirements referred
to in subsection
(2).
(b) In determining
whether a departure as contemplated in paragraph (a) is reasonable
and justifiable, an administrator must take
into account all relevant
factors, including –
(i) the objects of the
empowering provision;
(ii) the nature and
purpose of, and the need to take, the administrative action; (iii)
the likely effect of the administrative action;
(iv) the urgency of
taking the administrative action or the urgency of the matter; and
(v) the need to
promote an efficient administration and good governance.”
118.
Section 4(1) (a) to (e) sets out a list of criteria to consider in
determining a procedurally fair process :
“
Administrative
action affecting public (1) In cases where an administrative action
materially and adversely affects the rights of
the public, an
administrator, in order to give effect to the right to procedurally
fair administrative action, must decide whether
–
(a)
to hold a
public inquiry in terms of subsection (2);
(b)
to follow a
notice and comment procedure in terms of subsection (3);
(c)
to follow
the procedures in both subsections (2) and (3);
(d)
where the
administrator is empowered by any empowering provision to follow a
procedure which is fair but different, to follow that
procedure; or
(e)
to follow
another appropriate procedure which gives effect to section 3.”
119.
However, section 4(4)(a) provides as follows:
“
(a) If it is
reasonable and justifiable in the circumstances, an administrator may
depart from the requirements referred to in subsections
(1)(a) to
(e), (2) and
(3).
(b)In determining
whether a departure as contemplated in paragraph (a) is reasonable
and justifiable, an administrator must take
into account all relevant
factors, including –
(i) the objects of the
empowering provision;
(ii)
the nature and
purpose of, and the need to take, the administrative action;
(iii) the likely
effect of the administrative action;
(iv)
the urgency of
taking the administrative action or the urgency of the matter; and
(v) the need to
promote an efficient administration and good governance  “
(my emphasis)
120.
Applicants say in the replying affidavit that the debate about the
legality review in terms of the Constitution and the reasonableness

review in terms of PAJA is of limited assistance in these
proceedings. Applicants take the debate no further.
121.
In
Minister
of Health and Another v New Clicks SA (Pty) Ltd and Others
[7]
the Court held:
“
If
sections
85(2)(a) and 125(2)(a), (b) and (c) had not been omitted from the
list of exclusions, the core of administrative action
would have been
excluded from PAJA, and the Act mandated by the Constitution to give
effect to sections 33(1) and (2) would not
have served its intended
purpose. The omission of sections 85(2)(a) and 125(2)(a), (b) and (c)
from the list of exclusions was
clearly deliberate. To have excluded
the implementation of legislation from PAJA would have been
inconsistent with the Constitution.
The implementation of
legislation, which includes the making of regulations in terms of an
empowering provision, is therefore not
excluded from the definition
of administrative action
.”
122.
In
New Clicks
at para 145, the Constitutional Court said that
reasonableness and procedural are context specific
123.
At paragraph 147, relying
on
Bato
Star
,
[8]
the Court said that
context is relevant to both procedural fairness and reasonableness
and that Courts should approach the review
of administrative action
in that instance with deference or sensitivity to the special role of
the executive in making regulations.
124.
The minister has to embark on a process of creating regulations that
give expression to the implementation of a legal framework
that
addresses the competing needs of various sectors and interests, all
while still upholding primary Constitutional imperatives
of saving
lives and preserving dignity. It is this balancing of competing
interests that must align the minister’s role in
regulation
making for disaster management with the exercise of reasonable and
procedurally fair and just administrative action
in the context of a
national disaster that is also a global one.
Mootness
125.
Respondents submit that the regulations sought to be impugned apply
too alert levels that are no longer in existence and were
the country
to move back to those alert levels, new regulations would have to be
published. Therefore, they argue that the determination
of the
rationality and legality of those regulations is moot.
126.
Applicants submit that there is nothing prohibiting the enforcement
of the regulations were the country to be placed back onto
an alert
level applicable to the regulations.
127.
Clearly, neither the DMA nor the regulations themselves stipulate
that the regulations cannot be utilised should the
country be placed
back onto an applicable alert level.
128.
Save for the Winter Clothing Directions, which the Minister of the
DTIC withdrew on 11 June 2020 and hence are of no force
and effect, a
consideration of the remaining regulations are not moot.
The
Public Participation Process
129.
The procedural fairness argument
advanced on behalf of the applicants is that no or an inadequate
public participation process was
followed.
130.
Applicants’ counsel relied on the
following arguments:
130.1 In the
Simelane
case
,
[9]
the Constitutional Court
held:
If
in the circumstances of a case, there is a failure to take into
account relevant material that failure would constitute part
of the
means to achieve the purpose for which the power was conferred. And
if that failure had an impact on the rationality of
the entire
process, then the final decision may be rendered irrational and
invalid by the irrationality of the process as a whole.
43
130.2
In
Albutt v
Centre for the Study of Violence and Reconciliation
,
[10]
the Constitutional Court
found that it was procedurally irrational for the President not to
hear from the victims of political crimes
before making a decision to
issue presidential pardons for politically motivated crimes, on the
grounds that it would further reconciliation.
130.3 Public
participation is required for law making irrespective of whether the
law is an Act of Parliament, a regulation or a
direction.
130.4 Where regulations
are more demanding and intrusive and impose standards and rules that
demand particular kinds of conduct
from members of society, the
public deserves to be involved in the decision-making process by
being heard.
130.5 Public
participation minimises the space for irrational and arbitrary
regulations.
130.6 A transparent and
open process promotes the legitimacy and acceptance of the
regulations. This, in turn, assists the government
with enforcement
of the law.
131.
In reply, applicants challenge the veracity of the COGTA Minister’s
allegation that teams were employed to collate and
summarise the
public comments by alleging that she does not specify how many teams
there were or how many people worked on the
various teams.
132.
Applicants argue that it is implausible that the COGTA Minister could
have and did properly consider 70 000 submissions in
less than two
days between 12h00 on 27 April 2020, and 29 April 2020, when the
Disaster Regulations were published.
133.
Applicants allege that the report on public participation was only
compiled on 28 April 2020, and the COGTA Minister did not
say that
she read and considered the Report.
134.
Applicants believe that it is simply not possible that the COGTA
Minister could give due and proper regard to the public’s

submissions contained in the Report on 28 April 2020, and make
regulations reflecting the public’s views the following day
on
29 April 2020.
135.
The report on submissions from the public also include responses from
various government departments. The report concludes
with the
following comment from the processing team: “
While the COGTA
DOC focussed primarily on public comments, a team from Trade,
Industry and Competition processed inputs from sectors
and will share
the key finding with their Ministry.
“ Although the Minister
doesn’t allege it, when regard is had to the Report, it is
conceivable that there would have
been considerable overlap and
duplication in sentiments and suggestions expressed by the public and
those expressed by sectors
and not every single one of those 70 000
submissions would be different to one another. Hence the report draws
together both
public and sector comments in Table1.
136.
Applicants’ challenge to the Minister of CoGTA’s
allegation that she considered all the public comments, represent
a
dispute of fact raised in reply. Their allegation is that it is not
possible for the Minister to have considered all the public

submissions because she didn’t disclose the size of the teams
that read and processed those submissions. The expectation
that the
Minister make disclosures on the size of the teams arises for the
first time in reply and is nothing more than a fishing
expedition in
a futile attempt to establish that the Minister’s consideration
of the submissions were not properly made in
circumstances where
clearly there was, in addition to teams employed by the CoGTA
department, also a team employed by the DTIC
which considered and
collated information. The tenor of both ministers’ answering
affidavits is that they concede that the
process resulted in an
imperfect solution but where solutions were proposed from sectors or
the public, they took account of them
and readily amended the
regulations as they went along.
137.
In my view the dispute of fact is not
bona fide
in that the
challenge is based on pure conjecture as applicants offer no support
for the bald allegation that the Minister’s
version is false
other than speculative suspicion.
138.
Plascon-Evans’
Rule
[11]
therefore applies and the
facts fall to be determined on those alleged by respondents together
with those facts either accepted
by applicants or those that cannot
be denied by applicants.
139.
That the number of public comments were 70 000 doesn’t detract
from the allegation that they were indeed considered and
collated by
teams of personnel culminating in a report which the Minister of
CoGTA considered.
140.
Applicants rely on
Minister
of Home Affairs and Others v Scalabrini Centre and Others
[12]
and
Earthlife
Africa, Johannesburg and Another v Minister of Energy and Others
[13]
for the
proposition that the lack of adequate time given to the public caused
the regulations to be procedurally unfair and irrational
in
circumstances where a public participation process was established .
In
Earthlife
it was held that: “
a
rational and fair decision-making process would have made provision
for public input so as to allow both interested and potentially

affected parties to submit their views and present relevant facts and
evidence…
”
141.
The Minister
of CoGTA’s answering affidavit contain the following concerning
this aspect:
142.
The decision
to implement a lockdown had to be made quickly and decisively and
there was simply not enough time and opportunity
to have a public
participation process prior to making that decision.
143.
After the
lockdown regulations were published, there was widespread feedback
from the President, Cabinet, the public and other stakeholders
on
problems identified with the wording of the lockdown regulations.
144.
The Minister
then proceeded to publish amendments to the lockdown regulations.
145.
On 17 April
2020, the President chaired a National Economic Development and
Labour Council (NEDLAC) meeting to discuss the lockdown.
146.
On 18 April
2020 the President convened a PCC meeting where the President, the
Minister of CoGTA, the Minister of Health & NAT
JOINTS gave
input. Mayors, premiers and representatives of provinces were also
present.
147.
To address
the concerns caused by people milling in places where hot food was
sold, after consultation with relevant Cabinet members,
the Minister
of CoGTA published further amendments to the lockdown regulations.
148.
The Minister
of CoGTA noted that the public participation process in relation to
the Disaster Management Regulations must be viewed
in the broader
context of the ongoing representations, submissions, comments,
criticisms, support, confirmation that her department,
the Cabinet
and the President received.
149.
The Minister
of CoGTA alleges that her call for public participation on 25 April
2020 was part of an ongoing process that had commenced
taking place
once the first lockdown regulations were published.
150.
A public participation process was embarked upon on 25 April 2020
with comments having to be submitted by 27 April 2020. That
was
indeed a truncated public participation process.
151.
Procedural
fairness would ordinarily require a longer participation process if
the exigencies didn’t demand swift and decisive
action.
152.
The first
respondent’s reason for acting speedily and within a limited
time frame for public participation is that it was
necessary to
contain the spread of Covid-19.
153.
Third
respondent added that the respondents had to make difficult decisions
to manage the consequences that flowed from the lockdown
in a manner
which resulted in striking a balance between saving lives and saving
livelihoods.
154.
First
Respondent refers to evolving knowledge at the time on how the virus
spreads and what measures should be introduced to contain
it.
155.
The
respondents’ expert, Professor Abdool Karim, states that:
155.1 the global
understanding and knowledge on Covid-19 changes rapidly;
155.2
the
virus is thought to be airborne but there isn’t scientific
consensus on that;
155.3
154.3
the virus is transmitted through proximity to people and contact with
surfaces;
155.4
the
risk of transmission is higher when an infected person has a high
viral load and that could be when people are pre-symptomatic;

asymptomatic or symptomatic;
155.5
it is
important to adopt measures based on the presumption that anyone is a
potential carrier;
155.6
there
is consequently a need to eliminate infected people coming into
contact with other people and with surfaces;
155.7
He
lists the toolbox of known practices used to prevent infections,
namely:
155.7.1
increased
hygiene, washing, sanitising and avoid touching mucous membranes;
155.7.2
respiratory
respiratory hygiene with the use of masks and coughing or sneezing
into one’s arm;
155.7.3
frequent
cleaning and disinfecting of surfaces.
155.8
He
also lists a series of health tools which are screening; testing;
self-isolating; quarantining and providing PPE to health care

workers.
155.9
He
explains the objective of a lockdown as necessary to flatten the
curve by reducing infections and obtaining time for the health
care
services to cope and avoid a total collapse of the health care
system;
155.10
He
believes that the most effective and immediate way to regulate public
behaviour is with a lockdown as there would then be fewer
opportunity
for infections;
155.11
South
Africa is one of 86 countries that imposed a lockdown;
155.12
He
says that there is a need for government to regulate so that it could
mitigate the effect of Covid-19 and so that people could
receive
reliable information on how to change their behaviour and take
preventative measures;
155.13
The
consequences of flattening the curve meant that:
155.13.1.
community transmission of the virus slowed;
155.13.2.
healthcare capacity was able to expand and field hospitals were
opened;
155.13.3
health
care facilities were able to prepare and acquire more PPE;
155.13.4
testing
programmes were scaled up.
156.
The
court is cognisant of the objective facts, namely that, Covid-19 is a
global pandemic for which there is no cure, no adequate
treatment, no
guaranteed prevention and the most vulnerable people are those with
pre- existing conditions.
157.
It is
a global disaster which humanity has not encountered before. Hence
first and third respondents’ acceptance that they
have made
mistakes in the measures they adopted and as a consequence of
feedback and new information on the science, they amended
regulations
and directions, is well made.
158.
Section
6 of the Act
does indeed make it
mandatory for the Minister to prescribe a national disaster
management framework only after taking account
of the
Intergovernmental Committee’s recommendations as well as public
comment and the Minister is compelled by section 6(2)
to publish
particulars of the proposed framework.
159.
However, the regulations sought to be
impugned do not encompass the establishment of a disaster management
framework.
160.
Despite the
argument advanced on behalf of the respondent’s that the DMA
does not provide for a public participation process,
the Minister did
engage with other organs of state, spheres of government, the Centre,
NAT JOINTS, stakeholders and she was responsive
to complaints and
suggestions brought to her attention. Those consultations and
feedback sessions form part of a public participation
process.
161.
The DMA does
not provide for a public participation process before making disaster
management regulations but only provides that
the Minister should
consult relevant Cabinet members. The nature of the public
participation process that the Minister embarked
on is therefore not
prescribed by the DMA.
162.
The minister
did not recognise the need for public participation only when she
called for it on 25 April 2020. Her
modus
operandi
was
to consult with colleagues, NAT JOINTS, the centre, the advisory
council, other spheres of government and organs of state and
she
had regard to inputs from the public that she had access to. To caste
her conduct as authoritarian is misleading and
patently inappropriate
as that assertion is not borne out by objectively determinable facts
alleged by her and supported by annexures
to her affidavit, that
contains schedules to media interviews and briefings held by the
Minister of CoGTA and other Ministers .
163.
On two
occasions in her answering affidavit, the Minister appears to have
the dates of consultation incorrect as they are subsequent
to the
date of publication of regulations. That does not lead to the
inference that she made those regulations without any public

participation in circumstances where she and/ or her Cabinet
colleagues had engaged with sectors, labour unions and NGOs.
164.
Even if she
did make regulations without public participation, the exigencies of
the crisis that she sought to regulate is of such
a nature, that
where the DMA does not prescribe public participation, the public’s
check and balance on abuse of power still
resides with Parliament to
who the Minister is accountable for the exercise of delegated power
to make subordinate law. There is
no claim that she is in fact not
accountable to Parliament.
165.
Additionally,
section 59(4) of the DMA requires the Minister to make the
regulations available to the National Council of Provinces
(NCOP) for
adoption. That is also a public participation process that can serve
as a check on any abuse of power that manifests
in the regulations.
166.
Applicants
argue that members of the public may have wanted to provide more
relevant material or that they did indeed provide relevant
material
which the minister failed to consider because of the truncated public
participation process. That argument is speculative
and fails to
appreciate the urgency and exigency in which the pandemic has to be
managed by government.
167.
The Centre
liaises with the public through civil society structures, spheres of
governance and the media. Therefore, suggestions
on less restrictive
means of achieving the primary objective of saving lives and
livelihoods could be channelled through any of
those platforms and
the Centre as well. Despite Applicants belief that the Centre should
be coordinating the entire disaster management
program primarily,
they have not alleged that they directed a request for greater public
participation to the centre or to the
CoGTA.
168.
That is not
to say, that a public participation process should not be employed.
Given the architecture of the DMA, its purpose and
its use to
mitigate the fatal consequences of a pandemic driven by a virus for
which there is no cure and treatment, a truncated
public
participation process is capable of being attenuated through the NCOP
or National Assembly.
169.
Respondents
also rely on the
Albutt’s
case but they rely on the emphasized portion of paragraph 51 which
reads as follows:
“
Courts
may not interfere with the means selected [to achieve the executive’s
constitutionally permissible objectives] simply
because they do not
like them, or because there are other more appropriate means that
could have been selected. But,
where
the decision is challenged on the grounds of rationality,
courts
are obliged to examine the means selected to determine whether they
are
rationally related to the objective sought to be achieved
.
What must be stressed is that the purpose of the enquiry is to
determine
not
whether there
are
other means that could have been used
,
but whether the means selected are rationally related to the
objective sought to be achieved
”
170.
The
primary and ancillary objectives of the regulations as set out in the
DMA and utilised for the mitigation of an unprecedented
human tragedy
caused by Covid-19, make it radically different to the circumstances
that prevailed in cases such as
Scalabrini
and
Earthlife
.
Even applicants’ counsel submitted that a truncated public
participation process was necessary but he simply added: “
not
this truncated
.”
171.
It
is not for the Courts to prescribe to the National Executive
precisely how truncated a public participation process it should

follow because each situation would have to be determined on its own
set of unique and relevant circumstances.
172.
In
the absence of evidence of the existence of alleged less restrictive
means of achieving the objective of reducing the spread
of Covid-19
and ameliorating the consequences that flow from a full/partial
lockdown of the economy, this court has no basis in
interfering with
the Minster of CoGTA’s exercise of her discretion in setting
the truncated period for public participation.
173.
To
accept this conclusion applicants would have to confront the
fallacious nature of the comparison they make between the regulations

they seek to impugn and the incorrect premise that their argument on
which the purpose of the regulations rests.
The
object of the regulations in terms of the DMA
174.
Section 27(2) of the DMA provides once a national state of disaster
has been declared, the Minister may, subject to exercising
her
section 27(3) powers for assisting and protecting the public;
providing relief to the public; protecting property; preventing
or
combatting disruption or dealing with the destructive and other
effect of a disaster, make regulations and directions concerning:
(a) The release of any
available resources of national government, including stores,
equipment, vehicles and facilities;
(b) The release of
personnel of a national organ of state for the rendering of emergency
services;
(c) The implementation of
all or any of the provisions of a national disaster management plan
that are applicable to the disaster
in the circumstances;
(d) The evacuation to
temporary shelters of all or part the population from
disaster-stricken or threatened area if such action
is necessary for
the preservation of life;
(e) The regulation of
traffic to, from or within the disaster-stricken or threatened area;
(f) The regulation of
movement of persons and goods to, from or within the
disaster-stricken or threatened area;
(g) The control or
occupancy of premises in the disaster-stricken or threatened area;
(h) The provision,
control or use of temporary emergency accommodation;
(i) The suspension or
limiting of the sale, dispensing or transportation of alcoholic
beverages in the disaster-stricken or threatened
area;
(j) The maintenance or
installation of temporary lines of communications, to, from or within
the disaster area;
(k) The dissemination of
information required for dealing with the disaster;
(l) Emergency procurement
procedures;
(m) The facilitation of
response and post-disaster recovery and rehabilitation;
(n) Other steps that may
be necessary to prevent an escalation of the disaster, or to
alleviate, contain and minimise the effects
of the disaster; or
(o) Steps to facilitate
international assistance;
175.
Section 27(2) notionally is broad enough to intrude upon existing
legislation but it does so only in a disaster situation,
in which the
DMA builds in checks, balances and limitations.
176.
The
Minister of CoGTA spells out the rationale for the disaster
management regulations, namely to keep the rate of transmission
of
SARS Cov-2 low, as follows:
“
194
Permitting all activities that arguably affect or give full effect to
various rights in the Bill of Rights would collapse the
lockdown.
Regrettably, it is impossible to craft Regulations that reduce the
risk of transmission at any given point in time to
acceptable levels
without permitting some public activities and refusing other
activities that may appear similarly important.
As such, lines that
may appear arbitrary between one activity and another activity must
be drawn to achieve an acceptably low level
of transmission.”
177.
The
Minister of DTIC, explained that the objectives of the disaster
management regulations were to save lives and livelihoods in
a manner
that reduced foot traffic and limited the opportunity for people to
spend undue time inside stores.
178.
According
to respondents, the primary objective of the lockdown and disaster
regulation was to carry out their Constitutional obligation
as
expressed in
Makwanyane
[14]
thus: “
The
rights to life and dignity are the most important of all human
rights, and the source of all other personal rights in chap 3.
By
committing ourselves to a society founded on the recognition of human
rights we are required to value these two rights above
all others.
”
179.
In
support of its contention that it has a paramount Constitutional duty
to save lives, Respondents rely on the following in
Soobramoney
[15]
:
“
The
State undoubtedly has a strong interest in protecting and preserving
the life and health of its citizens and to that end must
do all in
its power to protect and preserve life.”
180.
Aside
from Professor Abdool Karim’s explanation about the
strengthening of health care capacity during the lockdown, the
Minister of the DTIC set out in detail what efforts were made to
procure PPE and ventilators and to ensure that life saving medication

were made available.
181.
On
respondents’ behalf, it is argued that the test in section 36
of the Constitution that a limitation on a right in the Bill
of
Rights must be reasonable and justifiable in an open and democratic
society and  the DMA’s requirement to act with
necessity
entail making difficult and unpalatable decisions that require a
trade-off and which do not address immediately all Constitutional

rights contemplated.
Applicants’
submissions on Impugning Regulations
182.
Applicants
consider regulations 16(1) to (4); 28(1), 28(3) and 28(4), read with
Part E of Table 1, of the Disaster Regulations as
'the Impugned
Restrictions' as they are alleged to be substantively
unconstitutional, unlawful and invalid.
183.
The basis for the assertion that the said regulations are unlawful
are set out as follows:
183.1 They commence from
the premise that certain listed activities are permitted and
everything else is banned instead of listing
the banned activities
and permitting everything else;
183.2 The regulations
restrict people to their homes and consequently deprive people of
their autonomy to move freely. They allow
people to leave their homes
only if they are performing an allowed service or acquiring a
permissible category of goods and services;
are moving a child from
one parent to another or if they wish to exercise between the hours
of 06h00 to 09h00;
183.3 They do not allow
people the freedom to enjoy other aspects of the right to human
dignity, such as family life: they allow
parents to move children
between them and allow selected relations to attend funerals, but do
not allow geographically separated
family members to visit each
other, even in times of difficulty;
183.4 Regulation 28
restrictions infringe human dignity, insofar as they undermine a
person’s autonomy to make her own consumption
decisions by
allowing people to only purchase cold prepared food from grocers, but
not hot cooked food, and by restricting them
to the purchase of
'winter clothing' when they should have the freedom to choose
whatever season of attire they wish. The regulation
also unduly
limits people’s right to trade freely and to practice a
profession of their choice;
183.5 Regulation 16
restricts people’s movement through a curfew and limitation on
hours of exercise an it is an impermissible
limitation on people’s
freedom of movement;
183.6 Applicants assert
that the regulations go beyond their stated purpose, namely, combat
the Covid-19 pandemic as they may go
no further than what is stated
in section 27 (3) of the Act, which is to provide relief, protect
property, prevent disruption or
address the destructive effects of
the pandemic;
183.7 Applicants allege
that allowing retail stores to operate and sell certain goods, but
not to sell other goods, does not limit
the spread of Covid-19:
consumers are already in the stores, purchasing what they are allowed
to purchase they, are already using
the retail facilities in question
and the risk of human contact is already present. That risk is
addressed through the mandatory
health protocols, social-distancing,
rules and provisions for adequate spacing. Addressing the risk
through such controls, rather
than by banning retail activity, is in
line with WHO policy, Simply put: consumers are already in stores. It
makes no sense to
ban what they may or may not purchase, unless those
sale items themselves increase the likelihood of virus transmission;
183.8 Applicants question
why movement between provinces, metropolitan areas and districts are
permitted for funerals and transporting
mortal remains but not for
family emergencies such as relatives being on their death beds (in
which case both the healthy and the
dying person can benefit from the
movement);
183.9 Regulation 16(2)
does not permit movement for purposes of visiting a prison or a
hospital. However, regulation 25 permits
individuals to visit
'Correctional Centres' and 'Health establishments' in certain
circumstances. It is irrational for the Disaster
Regulations to
permit certain movement in one breath and then criminalise that
movement in the next.
183.10 Applicants assert
that there are less restrictive means to achieve the objective of
limiting the spread of the virus. Applicants
argue that if movement
is permissible during certain times or for certain reasons, provided
that there are controls such as health
protocols and social
distancing in place, it ought to be permissible during all times and
for all reasons (subject to the same
protocols and social-distancing
rules), unless there is a particular time or a particular reason that
is likely to exacerbate the
pandemic;
183.11 Applicants state
that if the respondents are reasonably concerned that particular
forms of movement risk exacerbating the
disaster, those particular
forms of movement should be restricted, rather than all movement, all
of the time;
183.12 The means of
limiting the spread of the virus that are less restrictive on
movement are already set out in the Disaster Regulations
i.e. strict
health protocols, mandatory use of hand sanitiser, social distancing
etc. Similarly, the means of limiting the spread
of the virus that
are less restrictive on economic and consumer activity are already
set out in the Disaster Regulations i.e. the
obligation on retail
facilities provide employees with face masks, ensure adequate space,
regulate queues, provide hand sanitiser
etc;
183.13 Applicants take
issue in particular with the directions dealing with the itemisation
of winter clothing, shoes and apparel;
the regulations that limit
exercise is public to 3 morning hours; the regulation that imposes a
curfew and the regulation which
prohibit the sale of cooked food
under level 5 of the lockdown; the regulations that prohibit people
from leaving home unless they
are performing an essential service or
are engaging in  permissible activities and the regulations that
limit inter provincial
travelling;
183.14 Applicants submit
that the regulations being challenged are unlawful because they are
not necessary to achieve a curb in
the spread of the pandemic because
section 27(3) of the Act  requires that the regulations be
necessary to (i) assist, protect
and relieve the public; (ii) protect
property and prevent disruption; or (iii) deal with the disaster's
effects;
183.15 Applicants allege
that inclusive and structurally fair economic and fair competition
objectives are not permissible objectives
for national disaster
regulations and the Ministers of the DTIC and CoGTA cannot advance
those objectives through the regulations
being challenged.
183.16 Applicants allege
that the Clothing Directions, especially those that list the items of
clothing that may be purchased, are
unlawful because they were
published in terms of regulation 4(10)(a), which regulation allows
for the exercise of power to prevent
the spread of Covid-19 and its
impact “
by disseminating information required for dealing
with the national state of disaster
.”
184.
Both the Ministers of CoGTA and the DTIC refer to the importance of
making regulations that were sufficiently clear to people
expected to
comply with them and to law enforcement agencies who are tasked with
enforcing them. That is the objective behind Regulation
4(10)(a)
which applicants allege cannot be used for the clothing directions
published by the Minister of the DTIC.
185.
Section 27(2)(k) of the DMA provides that the Minister may make
regulations for: “
the dissemination of information required
for dealing with the disaster”
186.
Applicants argue that the Minister of CoGTA may only make those
regulations not the Minister of the DTIC, hence the latter
acted
ultra vires
in making the clothing directions.
Respondents’
Averments to the Regulations challenge
187.
Respondent has set out the following factors that it took into
consideration in ensuring that the objectives of the regulations
were
achieved:
187.1 There was an urgent
need to stop the movement of people to slow the spread of the virus
sufficiently to put in place improved
public health care facilities;
to provide health care workers with adequate personal protective
equipment (PPE); to bring the seriousness
of the epidemic to the
attention of the country’s population, including those in far
flung areas quickly so that they will
implement the required
prevention protocols and to have a set of legal measures in place
that law enforcement agencies could use
as a guideline for what
conduct was permissible and what was prohibited;
187.2 There was
consultation and engagement with stakeholders and role players in
relevant sectors prior to the disaster management
regulations being
published;
187.3 Some of the
regulations were formulated as a direct response to sectors’
submissions and requests for clarity and parity;
187.4 The winter clothing
direction was not meant to prescribe to people what they could wear
but to limit the employment of too
many employees in stores and
manufacturing and to limit the time shoppers spent in stores. People
were at liberty to wear clothing
they already possessed. The
limitation was on the categories of merchandise that could be sold
and bought; The applicants misconceive
the purpose of the Direction;
187.5 There is also a
legislative imperative to ensure that unfair competition does not
arise
as a consequence
of the disaster management regulations,
hence the ban on the sale of cooked food had to apply to stores that
sold essential goods
as well as cooked food and stores that sold only
cooked food;
187.6 The initial hard
lockdown was necessary to contain the rapid spread of the virus and
to achieve that end, it was necessary
to limit the movement of people
to certain hours and for specified purposes to avoid misuse of the
permissible movement and to
provide enforcement agencies with clearly
defined parameters as they could not enforce limitations on movement
effectively during
all hours of the day and night and movement for
multiple purposes and therefore they required  limited periods
and purposes
for effective policing and controlling.
New
Averments in Reply
188.
Although applicants raise new matter in reply, given the urgency of
the matter and the need for a holistic approach to all
the issues
raised, we have considered the new matter while mindful of the
respondents’ inability to depose to affidavits
in response
thereto given the short time frames in which papers were filed.
189.
For the first time in reply, Applicants shift the goalposts as it
were, by making new averments requiring respondents to,
inter alia
discharge an
onus
.
190.
The Minister of the DTIC is alleged to have acted
ultra vires
in
publishing Winter Clothing Directions. It is alleged that the
Clothing Directions are
ultra vires
the Regulations, the DMA
and they are irrational.
191.
Regulation 4(6) empowers the Minister of the DTIC specifically to
make directions:
”
to protect
consumers from excessive, unfair, unreasonable or unjust pricing of
goods and services during the national state of disaster;
to maintain
security and availability  of the supply of goods and services
and to address the spread of Covid-19 in matters
falling within his
mandate
.”
Whereas Regulation 4(10)(a) on which the Minister of the DTIC rely
for the exercise of power to make the clothing directions,
provides
that it includes: “
disseminating
information required for dealing with the national state of disaster;
implementing
emergency procurement measures; taking any other steps that may be
necessary to prevent an escalation of the national
state of disaster,
or to alleviate, contain and  minimise the effects of the
national state of disaster.
”
192.
The emphasised portion of the regulation echoes section 27(2) (k) of
the DMA in which the Minister of CoGTA may authorise the
issue of
Directions, hence her delegation to the Minister of the DTIC is in
terms of the power to authorise the issue of Directions.
193.
The Minister of the DTIC sketches the context, the raison d’etre
for the clothing directions and the rationality
of the decision
to make the directions as follows:
“
Further the
global infection rate  was also rising and many countries around
the world like the United States, Brazil and Italy
were releasing
statements and images of over-flowing and under-staffed healthcare
facilities. Reasonable and rational fears still
persist about whether
South Africa’s healthcare system could cope with such levels of
hospitalisation. We had a constitutional
obligation to err on the
side of caution…I provide the court with the detailed
considerations, not to argue that the decisions
taken were perfect
and not beyond criticism, or that other options may not have been
possible, but to show that the decisions were
rational, flowing from
extensive processes during which careful consideration was given to
the proposed measures and that the factors
considered were rationally
connected to the objectives of the state of disaster, taking full
account of all  of the information
about the various risks to
the public that were available to us at the time. These were not
decisions made in a cavalier fashion,
nor attempts by Ministers to
micro-manage decisions best taken by businesses, but on the contrary
a response to a request by stakeholders
for greater clarity and
certainty… Given that the virus spreads most easily through
close contact with others, the purpose
of restricting the number of
items which could be sold in retail stores served to limit the spread
of the virus, through limiting
close proximity of people to each
other and limiting the amount of time that people spent in stores,
especially indoors( both at
the stores concerned and the public
transport that many people rely on to get to shopping malls and
shops). Our rationale has been
that limiting the number of goods,
would reduce the number of people and time spent in stores at any
given time. “
194.
Third respondent accordingly states that he made the directions with
the objective of limiting the spread of Covid-19 by limiting
the
lines of goods available for purchase and sale. He did so in response
to a request by the clothing sector for information and
clarity on
specific items that they were authorised to sell. He made the winter
clothing directions in consultation with and on
the recommendation of
the sector. Hence third respondent states that he made the directions
in order to disseminate information
to manufacturers, retailers,
consumers and law enforcement agencies.
195.
That the directions could also fall into Regulation 4(6)’s
objective doesn’t detract from the fact that the clothing

sector required clarity, recommended the nature of the clarity they
sought and were provided with the necessary information.
196.
Regulation 4(6) provides the delegated authority granted to the DTIC
Minister but Regulation 4(10)(a) is the specific purpose
for which
the minister made the regulation. It is not possible to separate
entirely the purpose of curbing the spread of the national
disaster
from the purpose of providing information for clarity as they are
interrelated and both purposes address the government’s

response to the national state of disaster, that is Covid-19.
197.
The clothing directions arose as a consequence of the national state
of disaster and the DMA empowers the Minister to address
the disaster
and its effects and consequences, as discussed earlier. The
dissemination of information concerning winter clothing
is within the
powers of the Minister and accordingly cannot be
ultra vires
the
DMA.
198.
In the event, the clothing directions were withdrawn on 11 June 2020
and are of no force and effect.
199.
The Minister’s approach to making regulations is criticised as
falling foul of a “
narrow tailoring approach
”
contemplated by sections 26(2)(b) and 27(2) and (3) of the Act.
However section 26 (2) (b) merely states that national executive
must
deal with a national disaster in terms of existing legislation and
contingency arrangements as augmented by regulations or
directions
made or issued in terms of section 27(2).
200.
Section 26(2) (b) does not provide that the Minister may only make
regulations that augment existing legislation, as argued
on
applicants’ behalf.
201.
To augment means to widen and give more value to. In the context of
existing legislation, it effectively means to provide more
emphasis
and support to the provisions and objects of existing legislation.
202.
Section 26(2) in my view, provides that the national executive must
act within the confines of the provisions contained in
existing
legislation as well as in accordance with contingency measures to the
extent both existing legislation and contingency
measures are
augmented by regulations made in terms of section 27(2). Section 27
(2) is subject to the objects and purpose defined
in section 27(3)
and those are the objects against which the rationality of the
regulations must be considered.
203.
More specifically, section 27(2) (n) of the DMA provides for dealing
with the effects of the disaster which is what the regulations
and
directions address, i.e. effects and consequences flowing from
necessary measures employed to curb the spread of the disaster.
204.
Section 59(2)(a)(ii) of the Act provides that the Minister may make
regulations necessary for the effective carrying out of
the objects
of the Act. That grants the Minister the power to make regulations
which will allow for the implementation of those
objects by any means
not inconsistent with the Act.
205.
Applicants cannot for the first time in their reply throw down the
gauntlet to the respondents and say they have the
onus
of
showing that the regulations do not amend existing legislation, when
nowhere in their founding papers do they suggest that the
regulations
purport to amend legislation.
206.
It is trite that an applicant in motion proceedings must make out its
case in its founding papers. The application was issued
on 20 May
2020 and applicants had ample time to supplement or vary their
founding affidavit.
207.
For the sake of completeness, I turn to applicants’ challenge
to the regulations on the ground that they amend existing
legislation
208.
Applicants raise in their reply that parental rights in terms of
section 18(2) of the Children’s Act are amended by regulation

17(2) which prohibit movement of a child from one parent’s home
to another during the lockdown because the regulation requires
that
parents/caregivers obtain a Magistrate’s permission to move the
child.
209.
The requirement of a Magistrate’s permission is merely an
additional regulatory function because once a parent can persuade
a
Magistrate that the child is being moved lawfully, there is no
violation on a parent’s right of contact with his/her child.

What was added by the regulation was a monitoring mechanism to ensure
the safety of the movement of children in circumstances where

movement of persons
per se
present a danger to people. The
regulation does not attempt to amend  the Children’s Act
as the parent would still have
to be in possession of a parenting
agreement or court order authorising him/her to have the child in
his//her care in terms of
the Children’s Act.
210.
Applicants raise for the first time in their reply that regulation 19
suspended evictions in terms of the Prevention of Illegal
Eviction
from Land (‘PIE’) Act 19 of 1998 and in terms of the
Extension of Security of Tenure (‘ESTA’)
Act 62 of 1997
and therefore regulation 19 was not augmenting existing legislation
but varying it.
211.
Clearly it was not varying existing legislation but merely suspending
the operation of court orders in circumstances where
it was just and
equitable to do so and where it was necessary that people remain
indoors and not be evicted onto the streets with
a global pandemic
ravaging them. The criteria of just and equitable are built into
considerations that a court must make in terms
of PIE.
212.
Applicants seize upon paragraph 56 of the Minister of CoGTA’s
answering affidavit to make the point in reply that her
approach to
the making of regulations was impermissibly broad.
213.
Paragraph 56 follows on from paragraphs 54 and 55 of the answering
affidavit in which the Minister states that full and perfect

knowledge of how SARS- Cov-2 is transmitted was not available and the
medical advice at the time, was that the virus spread by
droplets
expelled when an infected person sneezes, coughs and speaks. She
alleges that droplet transmission is more difficult to
control than
sexual transmission. She was also warned that the virus could survive
for several days on surfaces and might be airborne
in certain
instances, hence she adopted “
broad and general measures to
combat any infectious outbreak, namely, improved personal hygiene
practices, social distancing, screening
and testing which depended on
public awareness and compliance
.”
214.
The Minister does not say that she adopted wide measures that went
beyond scientific advice, which she is obliged to consider,
on how to
contain the spread of the virus. Nor can it be established that those
measures imposed at the time were not necessary
to contain the
spread. Each regulation was designed to convey the seriousness of the
consequences of contracting the virus and
the need for people to
comply immediately and adequately.
215.
In arguing for a narrow
construction to be placed on the interpretation of the Act,
applicants submit in reply for the first time,
that the Minister must
adopt a narrow interpretation to the Act as a whole. Reliance is then
placed on the case of
Pheko
v Ekurheleni Metropolitan Municipality.
[16]
216.
The Constitutional Court in
Pheko’s
case found that a
narrow interpretation must be placed on section 55(2) (d) of the DMA
because it expressly provided for evacuation
to temporary shelter in
order to save lives and not for eviction without a court order. The
court said that section 55(2) (d) adversely
affects the right to
adequate housing and section 26(3) of the Constitution provides that
no one will be evicted without a court
order so that right to
adequate housing is protected.
217.
Pheko’s
case did not however determine that the entire
DMA must be narrowly interpreted.
218.
The narrow approach to
the DMA is inconsistent with the purposive approach to interpretation
as enunciated in
Endumeni
[17]
where the court described the approach to interpretation of contracts
and statutes as follows
:
“ [
26]
In between these two extremes, in most cases the court is faced with
two or more possible meanings that are to a greater or
lesser degree
available on the language used. Here it is usually said that the
language is ambiguous although the only ambiguity
lies in selecting
the proper meaning (on which views may legitimately differ). In
resolving the problem the
apparent
purpose
of
the provision and the
context
in
which it occurs will be important guides to the correct
interpretation An interpretation will not be given that leads to
impractical,
unbusinesslike or oppressive consequences or that
will
stultify the broader operation of the legislation
or
contract under consideration”
.
(my
emphasis)
219.
Applicants’ argument that there is no rational connection
between compelling people to remain indoors and the objective
of
containing the spread of the virus is a fallacious one because the
science as demonstrated by the expert affidavit of Professor
Abdool
Karim is that there is no fail-safe in the use of protocols but it is
the only known way of attempting to protect people
from having
contact with the virus. He illustrates that the virus spreads by
infected people coming into contact with other people
and surfaces.
Although based on an
ex post facto
conclusion in South Africa,
he showed that by people remaining indoors in large numbers over a
protracted period of 5 weeks, the
curve was flattened and the spread
was contained statistically. He also submitted that lockdown measures
were implemented in 86
other countries and that it led to a reduced
spread of the virus.
220.
Therefore, it cannot be said that there is insufficient relationship
between the objectives prescribed by section 27 and the
regulations.
The means used to contain the spread of the virus are also justified
because it was the only known method of containment
available at the
time and currently there is no guaranteed method of containment free
of risks in any event.
221.
The respondents have a primary Constitutional obligation to save
lives and the DMA does not grant them the election to only
do so once
they have full and complete knowledge on how to do so.
Analysis
of the objectives of the regulations sought to be impugned
222.
Applicants submit that in making the regulations, the respondent
ministers exercise public power and hence their conduct is
subject to
the principle of legality and accordingly must be consistent with the
Constitution, therefore it must be lawful and
rational and made for a
proper purpose. Respondents agree that the regulation making power of
the respondents are subject to the
principle of legality.
223.
In
Affordable
Medicines Trust and Others v Minister of Health and Others
[18]
,
Ncgobo CJ held as follows:
“
The
exercise of public power must therefore comply with the Constitution,
which is the supreme law, and the doctrine of legality,
which is part
of that law. The doctrine of legality, which is an incident of the
rule of law, is one of the constitutional controls
through which the
exercise of public power is regulated by the Constitution. It entails
that both the Legislature and the Executive
‘are constrained by
the principle that they may exercise no power and perform no function
beyond that conferred upon them
by law’. In this sense the
Constitution entrenches the principle of legality and provides the
foundation for the control
of public power.
.
. .
The
exercise of such power must be rationally related to the purpose for
which the power was given.
.
. .
As
long as the regulation of the practice, viewed objectively, is
rationally related to the legitimate government purpose, a court

cannot interfere simply because it disagrees with it or considers the
legislation to be inappropriate.”
224.
Applicants
rely on the case of
Prinsloo
v Van der Linde and Another
[19]
for the proposition that substantive rationality requires a
relationship between the scheme which is adopted and the achievement

of a legitimate purpose. Applicants contend, therefore rationality
has both substantive and procedural components.
225.
In
Prinsloo
,
the court held that:
“
[35]…
In
essence, applicant contended that section 84 lacked rationality
because it did not use the least onerous means of achieving its

objectives.  This approach, however, is based on two
misconceptions.  First, the applicant is prematurely importing a

criterion for justification into a test to be applied at the
infringement enquiry (definitional or threshold) stage.  The

question of whether the legislation could have been tailored in a
different and more acceptable way is relevant to the issue of

justification, but irrelevant to the question of whether there is a
sufficient relationship between the means chosen and the end
sought,
for purposes of the present enquiry
.”
226.
Minister
of Constitutional Development and Another v South African
Restructuring and Insolvency Practitioners Association and Others
[20]
the court held at [55]:
“
[55]
While
there may be an overlap between arbitrariness and rationality these
are separate concepts against which the exercise of public
power is
tested.  Arbitrariness is established by the absence of reasons
or reasons which do not justify the action taken.
Rationality
does not speak to justification of the action but to a different
issue.  Rationality seeks to determine the link
between the
purpose and the means chosen to achieve such purpose.  It is a
standard lower than arbitrariness.  All that
is required for
rationality to be satisfied is the connection between the means and
the purpose.  Put differently, the means
chosen to achieve a
particular purpose must reasonably be capable of accomplishing that
purpose.  They need not be the best
means or the only means
through which the purpose may be attained.”
227.
In
advancing the argument that a failure to take account of relevant
material will result in the means employed being irrational,

applicants counsel rely on
Democratic
Alliance v President of South Africa and Others.
[21]
What the court ultimate clarifies in that case is the following:
“
[40]
I
must explain here that there may rarely be circumstances in which the
facts ignored may be strictly relevant but ignoring these
facts would
not render the entire decision irrational in the sense that the means
might nevertheless bear a rational link to the
end sought to be
achieved. A decision to ignore relevant material that does not render
the final decision irrational is of no consequence
to the validity of
the executive decision. It also follows that if the failure to take
into account relevant material is inconsistent
with the purpose for
which the power was conferred, there can be no rational relationship
between the means employed and the purpose.”
228.
The regulations sought to be impugned are contained in Regulation
Gazette No. 43258 dated 29 April 2020.
229.
The preamble to those regulations contain the statement that they are
made in terms of Section 27(2) of the Act and they are
made after
consultation with the relevant Cabinet Members. Applicants bases for
challenging the content of the regulations is because
they are
allegedly, contradictory and arbitrary.
230.
What applicant does to support that contention is to compare the
regulations with one another.
231.
That is not the test that section 36(1) of the Constitution enjoins
courts to apply, which is that the measures adopted must
be
reasonable and justifiable in an open and democratic society.
232.
Applicants merely juxtapose one regulation with another, proceed to
draw illogical and unsubstantiated conclusions from that
comparison
and then attribute those conclusions to the means used by the
regulations.
233.
The Minister of the DTIC states pointedly that the infection rate
among people in shops and malls rose to ten times that in
the general
population.
234.
Applicants reasoning is based on taking up the cause for rights and
freedoms of people who can afford to shop for all goods
and services;
to exercise far away from their homes; to have an
occupation/profession; to travel through the country at the expense

of people who can’t afford all of the aforementioned and who
don’t have access to good nutrition and healthcare and
those
who have co-morbidities. The latter category of persons are defined
in section 1 of the DMA as those with vulnerabilities.
235.
Many vulnerable people work in the goods and services sector to
provide for the needs and wants of those who wish to go out
to shops
and malls. Those are the people who often have to take public
transport, such as taxis, who live in crowded townships
where
physical distancing is not always possible and who now risk their
lives to pack store shelves in close proximity to shoppers
in order
to replenish goods bought and sold and who generally tend to the
needs of shoppers.
236.
I now proceed to analyse the means used to attain the common
objective of curbing and managing the movement of people in order
to
contain the spread of the virus.
237.
Regulation 16(1) confines people to their homes. At the time, its
purpose was to protect lives by curbing the spread of the
virus and
it did so by minimising contact among people who didn’t live
together.
238.
Regulation 16(2) lists circumstances in which people could leave
their homes. It achieves the same objective as that for regulation

16(1) but provides exceptions to Regulation 16(1) to enable people to
obtain money; to obtain food; to seek medical assistance;
to exercise
contact with their children and 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. The
relaxation of Regulation 16(1) by providing
for exceptions in
Regulation 16 (2) do not detract from the purpose of Regulation 16(1)
nor does it render 16(1) nugatory and ineffectual.
239.
Regulation 16(3) imposes a curfew. Once again, the primary objective
to contain the spread of the virus and save lives is through
limiting
the movement of people and therefore a curfew is rationally connected
to that purpose.
240.
Regulation 16 (4) allowed for movement of people to other provinces
and metropolitan areas only in circumstances of performing
an
essential service, attending a funeral of a relative or transporting
mortal remains.
241.
The purpose is clearly to contain the spread of the virus from one
area/ region/ municipality and province to another so that
the health
care system in each area can cope with the outbreak it has to contend
with before it is overwhelmed and so that contact
tracing and its
accompanying quarantine measures can be more readily undertaken.
242.
Applicants argue that the relaxation on the ban on movement to other
areas demonstrates that a ban on movement in totality
is unnecessary.
243.
However if the relaxation or exception is intended to achieve the
purpose of containing movement and permitting it only in
necessary
situations, for example, where other people require the services of
the person permitted to leave the area of his/her
residence or where
he/she can demonstrate that he/she is a relative of a deceased and
wished to attend the burial or move mortal
remains, then it has a
rational link to its purpose.
244.
In those instances, the relaxation on the ban of movement does not
negate the ban. For example, a deceased is not in the same
position
as a living person with regard to likelihood of transmission of the
virus. A deceased person can’t sneeze, cough,
talk, splutter
and emit droplets that can infect those close to the body or mortal
remains. A living person however has the potential
to spread the
virus more rapidly by those means.
245.
However, applicants also claim that the purpose of the regulations
ought to be narrowly construed in the terms set out in section
27(3)
of the Act, namely, to (i) assist, protect and relieve the public;
(ii) protect property and prevent disruption; or (iii)
deal with the
disaster's effects. The three objectives in section 27(3) are
themselves framed widely and not specifically.
246.
The DMA goes further than the express objects listed in section 27
(3), when in section 59(1)(a)(ii), it provides that the
Minister may
make regulations not inconsistent with it but that is
necessary
to prescribe for the effective carrying out of the objects of the
Act. That provision effectively authorises ancillary issues not

expressly stated in the Act but which are necessary to achieve the
implementation of those objects, also to be regulated on.
247.
The provisions of section 59(1)(a)(ii) do not support the contention
that a narrow construction must be placed on section 27(3).
It is an
implementation provision that grants the Minister the power to make
regulations necessary to ensure that the section 27(3)
objectives are
enforced.
248.
The Act itself makes it a criminal offence to refuse to provide
information requested in terms of its provisions and provides
in
section 59(3) that regulations made under it may prescribe a penalty
of imprisonment for no more than 6 months or a fine.
249.
Enforcement of the regulations would be ineffectual if there was no
penal provision. If people are compelled to abide the regulations

designed to save lives under threat of criminal prosecution, then the
penalty is proportional to the purpose, namely saving lives.
To hold
otherwise, is to grant licence to act  negligently and/or
recklessly in infecting people.
250.
Despite Applicants’ purported narrow approach to the
interpretation of regulation making power in the DMA, they have
no
qualms about accepting the objective of limiting the spread of
Covid-19 through health and hygiene measures that afford the
health
care system an opportunity to become more available to those infected
with Covid-19 even though section 27(3) does not expressly
refer to
the health care system or hygiene and health measures. Applicant’s
argument on a narrow restrictive interpretation
to regulation making
contradicts its acceptance of the necessity for the initial lockdown
and protocol measures.
251.
I am satisfied that the regulations are justified and it is
conceptually not possible to interpret the objectives of protect
and
relieve; prevent disruption and deal with the effects of a novel
global pandemic which is transmitted by means of droplets
when people
cough, sneeze, talk and even exhale in circumstances where the virus
has no cure, no  adequate treatment, no guaranteed
prevention,
in narrower terms than the respondents have. Furthermore, the virus
has resulted in huge numbers of lives lost prematurely
and unduly.
252.
The construction of the Act makes perfect sense because it
contemplates a situation of national disaster, where regulations
have
to be made to give effect to containment of the harm caused by a
national disaster. Implementation thereof would invariably
have to be
made briskly, in circumstances where the declaration is not of
permanent duration but initially for 3 months.
253.
The minister’s approach to regulation making under the DMA, has
to be in conformity with the purposive and contextual
approach to
interpretation of the statute.  Once she correctly interpreted
the purpose of the regulations as granting her
the power to use
necessary  means  to manage the national disaster, in this
instance, the rapid spread of Covid-19,
as well as to manage
the consequences that result from the disaster, her approach to
regulation making was lawful and in compliance
with the Constitution.
Therefore, the narrow approach to regulation making which applicants
seek to place upon the minister in
this instance, operate to limit
government’s ability to establish measures necessary to contain
the spread of the virus and
those required to address consequences
that result from the disaster and its management.
254.
I accept that the measures do not satisfy everyone and there is a
great deal of criticism levelled against them. The inconvenience
and
discontent that the regulations have caused the applicants and others
have to be weighed against the urgent objective and primary

Constitutional duty to save lives. That is the nature of the
proportionality exercise which government has had to embark upon.
255.
As the Minister of CoGTA states, it involved issues of high policy
that have to be made in a polycentric manner. It is not
for the
Courts to prescribe to government how it should exercise its mandate
in those circumstances.
256.
I am satisfied that not only is the rational link between the
measures and its purpose explained in the answering affidavits
of the
Ministers of CoGTA and the DTIC as well as the expert affidavit but
it is also self-evident from the content of the regulations

themselves, properly construed in its context.
257.
I cannot conceive of an argument by applicant which is more
destructive of their assertion that they bring this application
in
terms of section 38(d) of the Constitution, namely, that they act in
the public interest than their argument that Regulation
19 suspending
execution of eviction orders, serve to amend existing legislation and
is therefore unlawful. It follows from this
contention of applicants
that they want orders for eviction of people during the lockdown to
be executed, despite the devastating
consequences thereof in a
pandemic.
258.
For the reasons set out herein, I am not persuaded that applicants
are entitled to any of the relief they seek.
259.
Ordinarily costs should follow the result but in having regard to the
Biowatch principle as well as the concessions that respondents
make
concerning confusion caused by statements on the role and powers of
the NCCC, and applicants’ conduct in having cast
the ambit of
their relief widely, I am of the view that each party should bear its
own costs.
IT
IS ORDERED THAT:
1. The application is
dismissed;
2. Each party is ordered
to pay his/her own costs.
______________
JUDGE
R. ALLIE
BAARTMAN,
J:
I
agree.
_____________________
JUDGE
E.D. BAARTMAN
Counsel
for 1
st
–
7
th
Applicant:
Adv Anton Katz SC
Adv
Kessler Perumalsamy
Counsel
for 8
th
Applicant:
Adv
Vuyani Ngalwana SC
Adv
Erin Richards
Adv
Farzanah Karachi
Instructed
by:
Adriaans Attorneys
Ref:
Ashley Adriaans
Ref:
Dominique Dirks
Ref:
Zeandré Oliver
Counsel
for 1
st
–
8
th
Resp:
Adv Moerane SC
Adv
Ngwako Hamilton Maenetje SC
Adv
Dave Watson
Adv
Nyoko Muvangua
Instructed
by:
State Attorney
Ref:
Emil Scharf
[1]
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999
(1) SA 374
(CC) at para
[58]
;
Minister
of Public Works and Others v Kyalami Ridge Environmental Association
and Another (Mukhwevho Intervening)
2001
(3) SA 1151
(CC) at para [34];
Affordable
Medicines Trust and Others v Minister of Health and Others
[2005] ZACC 3
;
2006
(3) SA 247
(CC) at para
[49]
;
Masetlha
v President of the Republic of South Africa and Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC) at
para
[80]
[2]
Matatiele
Municipality and Others v President of the Republic of South Africa
and Others (2) (CCT73/05A) [2006] ZACC 12
[3]
Minister for Justice and Constitutional Development v Mqabukeni
Chonco and 383 others Case CCT 42/09 [2009] ZACC 25
[4]
2002(1) SA 447(CC) at [19]
[5]
G Marshall:
Constitutional
Conventions: The Rules and Forms of Political Accountability
1989
(55)
[6]
State President of the RSA v SARFU 2000(1) SA 1(CC) at [243]
[7]
2006
(2) SA 311
(CC) at [126]
[8]
Bato Star Fishing Ltd v Minister of Environmental Affairs &
Tourism & Others 2004(4) SA 490 (CC)
7.Democratic
Alliance v President of the RSA 2013(1) SA 248 (CC) at [39]
[10]
2010(3) SA 293 (CC) AT [69]
[11]
Plascon Evans Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623 (A)
at 643G-635D
[12]
2013(6) SA 421 (SCA) at [72]
[13]
[2017] 3 All SA 187
(WCC) [45].
11.
S v Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC) at
[144]
[15]
Soobramoney v Minister of Health, Kwazulu-Natal
[1997] ZACC 17
;
1998 (1) SA 765
(CC)
at
[39]
[16]
2012 (2) SA 598
(CC) at [37].
[17]
Natal Joint  Municipal Pension Fund v Endumeni Municipality
2012(4) SA 593 (SCA) at [26]
[18]
[2005] ZACC 3
;
2006
(3) SA 247
(CC)
at paras 49, 75 and 77
[19]
1997
(3) SA 1012(CC)
[20]
2018 (5) SA 349 (CC)
[21]
2013 (1) SA 248
(CC)