Brief Summary

Urgent Applications — Rescission of procedural order — Applicant seeking rescission of order agreed to by previous legal representatives without instructions — Court granting rescission based on common law power — Applicant subsequently seeking urgent interdict against enforcement of Disaster Management Act regulations pending Constitutional Court decision — Court finding application not urgent as no satisfactory explanation provided for delay and similar relief sought in prior application — Application dismissed.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an urgent motion application brought in the Western Cape High Court, Cape Town, in which the applicant sought interim interdictory relief aimed at suspending the punitive and coercive enforcement of regulations made under the Disaster Management Act (the “DMA regulations”), pending the finalisation of related litigation in the Constitutional Court.

The applicant was Ricardo Maarman. The respondents were the President of the Republic of South Africa (first respondent) and the Minister of Co-operative Governance and Traditional Affairs (second respondent).

The matter’s procedural course was unusual. It was initially enrolled urgently for 31 January 2022, when a procedural order was taken (apparently on agreement) regulating further filing of affidavits and heads and postponing the hearing. The next day, the court was informed that the applicant’s attorneys had allegedly agreed to the postponement without the applicant’s instructions; the applicant sought rescission of that procedural order. The respondents did not oppose rescission. On 4 February 2022, the court rescinded the procedural order in the exercise of its common-law rescission power, and then heard argument on preliminary issues dispositive of the application.

The dispute concerned the applicant’s attempt to obtain urgent interim relief affecting the State’s enforcement of COVID-19 disaster-management regulations, framed as interim protection pending the outcome of Constitutional Court case CCT 229/21. A key feature of the matter, however, was that the Constitutional Court had already dismissed that case before the High Court hearing, which materially affected the viability of the interim relief sought.

2. Material Facts

The applicant had instituted proceedings in the Constitutional Court on 27 September 2021 under case number CCT 229/21, seeking “exclusive jurisdiction and/or direct access”. The relief in that Constitutional Court matter was wide-ranging and included an attack on the legality of the declaration of a national state of disaster and related conduct. The Constitutional Court proceedings were opposed, with voluminous papers filed.

On 26 January 2022, the Constitutional Court dismissed the application. The Constitutional Court held, in essence, that the application did not disclose a cause of action against the first and second respondents because it proceeded from the premise that the power to declare a national state of disaster under the DMA vested in the President, whereas (on the Constitutional Court’s reasoning) that power vested in the relevant Minister. It further declined direct access in relation to the third respondent and made no costs order.

Before launching the present application, the applicant (together with others) had instituted a similar urgent application in the High Court on 9 December 2021 (case number 21064/2021) seeking substantially the same interim relief, namely suspension of the DMA regulations pending finalisation of CCT 229/21. That earlier High Court matter was enrolled, postponed with filing directions, and subsequently struck from the urgent roll on 7 January 2022, with costs reserved.

Instead of proceeding with that earlier High Court application, the applicant instituted the present application on 21 January 2022, seeking a rule nisi which, if confirmed, would suspend the punitive and coercive enforcement of the DMA regulations and leave only “voluntary compliance” pending the finalisation of CCT 229/21. The regulations identified were those promulgated under the DMA and published in the Government Gazette of 22 April 2021 under No. 376.

A central factual feature for the High Court’s determination was that, by the time the urgent application was argued, the Constitutional Court matter had already been dismissed on 26 January 2022. The applicant did not disclose that dismissal to the High Court prior to the hearing through a practice note or correspondence; the presiding judge became aware of it from the respondents’ answering affidavits delivered the afternoon before the hearing.

The applicant contended (in argument) that a rescission application against the Constitutional Court order had been brought, and a copy of a rescission application dated 2 February 2022 was furnished. However, there was no confirmation before the High Court that such rescission had been accepted by the Registrar of the Constitutional Court. Further, when the present High Court application was launched on 21 January 2022, there was no rescission application pending.

3. Legal Issues

The High Court was required to determine preliminary questions that were decisive of whether the application could be entertained and whether the relief could competently be granted.

The central legal questions were whether the application was urgent within the meaning of Rule 6(12) and the established urgent-court requirements, and whether any basis existed to condone non-compliance with ordinary time limits.

Closely connected to that was whether the application had become moot, given the dismissal of the purportedly pending Constitutional Court litigation (CCT 229/21) on which the interim relief was explicitly premised.

The court also had to decide whether it had jurisdiction/competence to grant interim relief that was fundamentally premised on final relief said to fall within the exclusive jurisdiction of the Constitutional Court, particularly where the applicant’s Constitutional Court case had been framed as one engaging section 167(4)(e) of the Constitution (exclusive jurisdiction) and, alternatively, direct access under section 167(6)(a).

Finally, the court had to consider whether the application fell within the category of exceptional cases in which a court may grant an interim interdict restraining the exercise of public power by an organ of state, in light of separation of powers considerations and the Constitutional Court’s jurisprudence on interim interdicts against the State.

These issues primarily involved the application of legal standards to the procedural and jurisdictional facts (urgency, mootness, jurisdiction) together with an evaluative judgment as to whether the stringent threshold for interim interdictory relief against the exercise of statutory power had been met.

4. Court’s Reasoning

On urgency, the court emphasised the chronology and the applicant’s delays. The underlying national state of disaster had been declared on 15 March 2020, and the DMA regulations (in various forms) had operated for roughly two years. The Constitutional Court litigation was initiated on 27 September 2021 without interim interdictory relief being sought at that time. The applicant only sought the interim suspension/enforcement-related interdict months later, first in December 2021 and then again through the present application launched in late January 2022, on short notice. The founding papers and heads did not provide a satisfactory explanation for why the matter had become urgent at that stage, particularly when the Constitutional Court matter itself had not been launched as urgent and was expected (on the applicant’s own version in earlier proceedings) to take approximately “8 months” to be determined.

The court rejected the applicant’s attempt to ground urgency on ongoing rights limitations and alleged harms associated with vaccination measures and regulatory enforcement. It noted that while lockdown measures necessarily limited rights, such limitations were sanctioned by section 36 of the Constitution, and the applicant did not explain why he had not challenged the situation earlier. Assertions of irreparable harm from vaccines were unsupported by expert evidence, and in any event did not explain why the relief was urgent at that late stage. The court also rejected as incorrect the contention that enforcement would render the Constitutional Court matter moot; had the Constitutional Court case succeeded, vindication would have followed. The court further observed that the assertion that facts were “common cause” was plainly wrong: the parties were in dispute on material issues. Considerations of prejudice also weighed against urgency, because the order sought would deprive the State of a key mechanism of intervention and response during a pandemic. On this basis alone, the court stated it would have struck the matter from the urgent roll.

On mootness, the court treated the dismissal of CCT 229/21 on 26 January 2022 as fatal to the rationale of interim relief pending that case. The applicant’s submission that only the direct access component had been dealt with, leaving “exclusive jurisdiction” still pending, was rejected: the High Court read the Constitutional Court order as refusing the application in its entirety on the basis that it disclosed no cause of action against relevant respondents, which went to the root of the case rather than a procedural access route. The applicant’s reliance on a purported rescission application did not assist. There was no proof that it had been accepted for filing; and, more fundamentally, when the present application was instituted, there was no rescission application pending, so it could not retrospectively provide the foundation for interim relief. The court also regarded the non-disclosure of the Constitutional Court dismissal as material. Given these considerations, the court concluded the application no longer served a purpose and fell to be dismissed as moot.

On jurisdiction, the court reasoned from the applicant’s own framing of the Constitutional Court litigation. In CCT 229/21, the applicant had asserted that the matter fell within the Constitutional Court’s exclusive jurisdiction under section 167(4)(e), alternatively sought direct access. Against that background, the High Court accepted the respondents’ contention that the applicant could not simultaneously invoke the Constitutional Court’s exclusive jurisdiction for the final relief while asking the High Court to grant interim relief that was fundamentally premised on that same final relief. The attempt to characterise the High Court relief as confined to “punitive and coercive enforcement” (rather than the regulations as a whole) did not, on the court’s reasoning, change matters, because the enforcement measures formed an integral part of the DMA regulatory scheme. The court accepted that there may be matters where interim relief is competently granted by a High Court pending Constitutional Court proceedings, but held that this case did not qualify on its particular facts.

On whether the case met the stringent threshold for restraining public power, the court held that the applicant’s submissions underestimated the constitutional standard applicable to interim interdicts against organs of state. Relying on Economic Freedom Fighters v Gordhan and others 2020 (6) SA 325 (CC), the court noted that interim interdicts restraining public power require careful consideration of constitutional and statutory duties, separation of powers implications, and that such relief should be granted only in exceptional circumstances where the applicant shows good prospects of success on strong grounds in the main challenge. The court also relied on National Treasury and others v Opposition to Urban Tolling Alliance and others 2012 (6) SA 233 (CC) for the proposition that temporary restraining orders against the exercise of statutory power are granted only in exceptional cases, and that courts should not intrude into executive terrain unless constitutionally mandated, particularly in polycentric policy-laden contexts.

Applying those principles, the court held that the present application did not meet the threshold. It did not make out a proper case for the interdict sought, and it did not establish a viable underlying challenge to the validity of the statutory or regulatory framework. Most significantly, the Constitutional Court had already determined that no cause of action had been made out in the purported main challenge, with the result that there was no pending validity challenge that could ground interim relief. Granting the relief would therefore amount to an impermissible intrusion into the respondents’ domain.

The court recorded that some argument was presented regarding the effect of the earlier pending High Court application (case 21064/2021) and whether lis alibi pendens could be raised, but held that it was unnecessary to decide that issue given the conclusions reached on urgency, mootness, jurisdiction, and the interim interdict threshold.

On costs, the applicant invoked the Biowatch principle applicable to constitutional litigation against the State. The court held that Biowatch did not apply in the circumstances. It treated the application as inappropriate and ill-considered, emphasising the duplication of the earlier pending High Court matter, the lack of urgency, the disregard of jurisdictional/separation-of-powers issues, the unsupported and general nature of allegations, and—crucially—the continuation of proceedings despite the dismissal of the Constitutional Court application, which had not been disclosed timeously. In that setting, the court concluded that the applicant should pay costs on the ordinary scale, including the costs of two counsel.

5. Outcome and Relief

The application was dismissed.

The court ordered the applicant to pay the respondents’ party-and-party costs, including the costs consequent upon the employment of two counsel.

In addition, the court ordered that the applicant bear the costs of the rescission application (relating to the procedural order) instituted on 3 February 2022.

Cases Cited

Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly 2018 (2) SA 571 (CC).

Economic Freedom Fighters v Speaker of the National Assembly (as referenced in the judgment in connection with the above authority) 2018 (2) SA 571 (CC).

Economic Freedom Fighters v Gordhan and others 2020 (6) SA 325 (CC).

National Treasury and others v Opposition to Urban Tolling Alliance and others 2012 (6) SA 233 (CC).

Biowatch Trust v Registrar, Genetic Resources and others 2009 (6) SA 232 (CC).

Lawyers for Human Right v Minister of Home Affairs and others 2017 (5) SA 480 (CC).

Maarman v President of the Republic of South Africa and others, Constitutional Court case number CCT 229/21, order dated 26 January 2022 (as quoted in the judgment).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (including sections 36, 167(4)(e), and 167(6)(a)).

Disaster Management Act (referred to in the judgment as “Disaster Management Act, 2002”, and in the quoted Constitutional Court order as “Disaster Management Act 57 of 2000”).

Disaster management regulations published in the Government Gazette dated 22 April 2021 under No. 376 (as identified in the judgment).

Rules of Court Cited

Uniform Rules of Court, Rule 6(12).

Held

The court held that the application could not succeed because it was not shown to be urgent, and because the relief sought had become moot once the Constitutional Court matter (to which the interim relief was tied) had been dismissed. The court further held that, given the applicant’s reliance in the Constitutional Court on that court’s exclusive jurisdiction, the applicant could not, on the facts of this case, simultaneously invoke the High Court’s jurisdiction to grant interim relief premised on the same disputed terrain. The court also held that the matter did not meet the stringent exceptional-case threshold for an interim interdict restraining the exercise of statutory power by organs of state, particularly in circumstances where there was no longer a viable pending main challenge.

On costs, the court held that the Biowatch principle was not applicable because the litigation was manifestly inappropriate in multiple respects, including duplication of proceedings and non-disclosure of the Constitutional Court dismissal, and therefore ordered costs against the applicant, including the costs of two counsel, and ordered the applicant to pay the costs of the rescission application.

LEGAL PRINCIPLES

The judgment applied the principle that a party seeking enrollment under Rule 6(12) must provide a satisfactory explanation for urgency and cannot rely on urgency that is self-created by delay, particularly where the impugned state of affairs has persisted for a lengthy period and earlier litigation steps did not seek urgent interim relief.

It applied the principle that interim relief premised on pending proceedings may become moot once the underlying proceedings have been finally disposed of, and that a later attempt to rely on a possible rescission application does not necessarily provide a foundation for interim relief, especially where such rescission was not pending when the urgent proceedings were instituted and where the status of filing is unconfirmed.

The court applied Constitutional Court authority that an interim interdict restraining the exercise of public power by an organ of state raises separation of powers concerns and will be granted only in exceptional circumstances, requiring careful scrutiny of the impact on constitutional and statutory powers and duties, and requiring strong prospects of success in the main challenge.

On costs, the court applied the qualification to the Biowatch Trust v Registrar, Genetic Resources and others 2009 (6) SA 232 (CC) approach, namely that Biowatch protection does not extend to proceedings that are frivolous, vexatious, or manifestly inappropriate, and that merely labelling a matter “constitutional” does not immunise an unsuccessful litigant from an adverse costs order.

Maarman v President of the Republic of South Africa and Another (1279/2022) [2022] ZAWCHC 91 (4 April 2022)