Esau and Others v Minister of Co-Operative Governance and Traditional Affairs and Others (611/2020) [2021] ZASCA 9; [2021] 2 All SA 357 (SCA); 2021 (3) SA 593 (SCA) (28 January 2021)

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[2021] ZASCA 9
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Esau and Others v Minister of Co-Operative Governance and Traditional Affairs and Others (611/2020) [2021] ZASCA 9; [2021] 2 All SA 357 (SCA); 2021 (3) SA 593 (SCA) (28 January 2021)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 611/2020
In
the matter between:
DUWAYNE
ESAU

First Appellant
NEO
MKWANE

Second Appellant
TAMI
JACKSON

Third Appellant
LINDO
KHUZWAYO

Fourth
Appellant
MIKHAIL
MANUEL

Fifth Appellant
RIAAN
SALIE

Sixth Appellant
SCOTT
ROBERTS

Seventh Appellant
MPIYAKHE
DLAMINI

Eighth
Appellant
and
MINISTER OF
CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL AFFAIRS

First Respondent
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA
Second Respondent
MINISTER
OF TRADE, INDUSTRY AND COMPETITION        Third
Respondent
PRESIDENT OF THE
REPUBLIC OF SOUTH AFRICA
IN HIS CAPACITY AS THE
CO-CHAIRPERSON OF THE
NATIONAL
CORONAVIRUS COMMAND COUNCIL
Fourth
Respondent
MINISTER OF
CO-OPERATIVE GOVERNANCE
AND TRADITIONAL
AFFAIRS IN HER CAPACITY AS
CO-CHAIRPERSON
OF THE NATIONAL CORONAVIRUS
COMMAND
COUNCIL

Fifth Respondent
Neutral
citation:
Duwayne
Esau and Others v Minister of Co-Operative Governance and Traditional
Affairs and Others
(611/2020)
[2021] ZASCA 9
(28 January 2021)
Coram:
Petse
DP, Zondi, Van der Merwe and Plasket JJA and Mabindla-Boqwana AJA
Heard:
2
November 2020
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on
the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 09h45 on 28 January
2021.
Summary:
Disaster
Management Act 57 of 2002 (DMA) – decisions and regulations
made during state of national disaster under the DMA
– policy
decisions of the National Coronavirus Command Council, a cabinet
committee comprising of the entire cabinet, not
justiciable because
they had no legal effect – regulations made in terms of the DMA
(the level 4 regulations) made in a procedurally
fair manner,
alternatively in a rational decision-making process – Minister
of Co-operative Governance and Traditional Affairs
applied her mind
to representations received from members of the public – with
two exceptions, the level 4 regulations found
to be reasonable and
justifiable limitations of fundamental rights – reg 16(2)
(f)
,
which permitted only limited forms of exercise during the level 4
lockdown, and items 1 and 2 of Part E of Table 1, read with
reg
28(3), which prohibited the over-the-counter sale of hot food,
declared to be invalid to the extent of their conflict with
the
Constitution – challenge to directions made by the Minister of
Trade, Industry and Competition moot.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Allie and Baartman JJ
sitting as court of first instance) judgment reported
sub
nom
Esau
and Others v Minister of Co-operative Governance and Traditional
Affairs and Others
[2020] ZAWCHC 56
;
2020 (11) BCLR 1371
(WCC):
1. The appeal is
dismissed, save to the limited extent set out in paragraph 2 below.
2. The order of the court
below is amended to read:
‘
1.
Save for the relief granted in paragraph 2 below, the application is
dismissed.
2. It is declared that:
(a) regulation 16(2)
(f)
of the regulations promulgated in GN 480,
Government Gazette
43258 of 29 April 2020 (the level 4 regulations) is invalid to the
extent that it limited: the taking of exercise to three means,
namely
walking, running and cycling; the time during which exercise could be
taken to the hours between 06h00 and 09h00; and the
location for
taking exercise to a radius of five kilometres from a person’s
residence; and
(b)
items 1 and 2 of Part E of Table 1, read with reg 28(3), of the level
4 regulations are invalid to the extent that they prohibited
the sale
of hot cooked food, otherwise than for delivery to a person’s
home.’
JUDGMENT
Plasket
JA (Petse DP, Zondi and Van der Merwe JJA and Mabindla-Boqwana AJA
concurring)
[1]
The Republic of South Africa has been under a state of national
disaster, declared
in terms of the Disaster Management Act 57 of 2002
(the DMA), since 15 March 2020. The purpose of the declaration and
the subsequently
promulgated regulations and directions was and is to
prevent and contain the spread of the SARS-CoV-2 or Coronavirus
Disease 2019
(Covid-19) and to regulate the State’s response to
the pandemic that has caused such widespread health and economic
devastation
in the country. In the course of doing so, it is beyond
doubt that many of the regulations and directions issued by the
national
executive have limited the rights of the populace. This
appeal concerns the constitutional validity of certain decisions
taken
by members of the executive and of regulations made in order to
deal with the pandemic.
[2]
The relief claimed by the appellants, as applicants in the Western
Cape Division of
the High Court, Cape Town, was wide-ranging and
included an attack on the lawfulness of the establishment and
functioning of a
body that has played a central role in the response
to the Covid-19 pandemic – the National Coronavirus Command
Council (the
NCCC). In addition, a further four issues arose for
determination by the court below. They were, first, whether the
Disaster Regulations
of 29 April 2020 were consistent with ss 26 and
27 of the DMA; secondly, whether the Minister of Co-operative
Governance and Traditional
Affairs (the COGTA Minister) acted in a
procedurally fair and rational manner when she made those
regulations; thirdly, whether
certain of the regulations were
unreasonable and unjustifiable infringements of fundamental rights
and were invalid on that account;
and fourthly, whether directions
issued by the Minister of Trade, Industry and Competition were
invalid for want of legality and
rationality.
[3]
In the court below,
[1]
Allie J,
with whom Baartman J concurred, found in favour of the respondents –
the COGTA Minister, the Minister of Trade,
Industry and Competition
and the President of the Republic of South Africa – on all of
the issues. This had the result that
the application brought by the
appellants, who were acting in the public interest in terms of s
38
(d)
of the Constitution, was dismissed. As is customary in matters such
as this, in which constitutional rights are unsuccessfully
sought to
be vindicated, no order of costs was made against the unsuccessful
applicants. The matter is before us with the leave
of the court
below.
[4]
What is the role of the courts in circumstances such as these? In
Lord Aitkin’s
famous dissenting judgment in
Liversidge
v Anderson
,
[2]
he made the point that in times of national disaster – the
Second World War, in that case – ‘the laws are not

silent’; that ‘they speak the same language in war as in
peace’; and that i
t
‘has always been one of the pillars of freedom . . . that the
judges are no respecters of persons and stand between the
subject and
any attempted encroachments on his liberty by the executive, alert to
see that any coercive action is justified in
law’.
[3]
These words echo what had been said by De Villiers CJ in this
country, more than 60 years earlier, in the matter of
In
re Willem Kok and Nathaniel Balie
,
[4]
that even in times of upheaval, the courts’ ‘first and
most sacred duty is to administer justice to those who seek
it’.
[5]
In other words, even in times of national crisis, as this undoubtedly
is, the executive
has no free hand to act as it pleases, and all of
the measures it adopts in order to meet the exigencies that the
nation faces
must be rooted in law and comply with the
Constitution.
[5]
The rule of
law, a founding value of our Constitution,
[6]
applies in times of crisis as much as it does in more stable times.
And the courts, in the words of Van den Heever JA in
R
v Pretoria Timber Co (Pty) Ltd and Another
[7]
should not, even when the legislature has conferred ‘vast
powers’ to make subordinate legislation on the executive,
‘be
astute to divest themselves of their judicial powers and duties,
namely to serve as buttresses between the Executive
and the
subjects’.
[6]
That is not to say that the courts have untrammeled powers to
interfere with the measures
chosen by the executive to meet the
challenge faced by the nation. Judicial power, like all public power,
is subject to the rule
of law.
[8]
Perhaps the most obvious constraint on the power of the courts is the
doctrine of the separation of powers, a principle upon which
our
Constitution is based
[9]
and
which allocates powers and responsibilities to the three arms of
government – the legislature, the executive and the

judiciary.
[10]
What the
separation of powers means in a case such as this, is that a court
may not set aside decisions taken and regulations made
by the
executive simply because it disagrees with the means chosen by the
executive, or because it believes that the problems that
the
decisions or regulations seek to address can be better achieved by
other means: the wisdom of the executive’s exercises
of power
are not justiciable, only their legality. Somewhat cynically,
Schreiner JA, in
Sinovich
v Hercules Municipal Council
,
[11]
said
that ‘[t]he law does not protect the subject against the merely
foolish exercise of a discretion by an official, however
much the
subject suffers thereby’.
[7]
The point must be stressed that the function of the court is to vet
the challenged
decisions and regulations made in terms of the DMA for
their regularity and not their wisdom. The reason for this was
highlighted
by Laws J in
R
v Somerset County Council, ex parte Fewings and Others
,
[12]
a case concerning the review of a decision by a local government to
prohibit stag hunting on land owned by it, and which had elicited

intense public responses in favour of and against the decision. He
said:
‘
Although
judicial review is an area of the law which is increasingly, and
rightly, exposed to a good deal of media publicity, one
of its most
important characteristics is not, I think, generally very clearly
understood. It is that, in most cases, the judicial
review court is
not concerned with the merits of the decision
under
review. The court does not ask itself the question, “Is this
decision right or wrong?” Far less does the judge
ask himself
whether he would himself have arrived at the decision in question. It
is, however, of great importance that this should
be understood,
especially where the subject matter of the case excites fierce
controversy, the clash of wholly irreconcilable but
deeply held
views, and acrimonious, but principled, debate. In such a case, it is
essential that those who espouse either side
of the argument should
understand beyond any possibility of doubt that the task of the
court, and the judgment at which it arrives,
have nothing to do with
the question, “Which view is the better one?” Otherwise,
justice would not be seen to be done:
those who support the losing
party might believe that the judge has decided the case as he has
because he agrees with their opponents.
That would be very damaging
to the imperative of public confidence in an impartial court. The
only question for the judge is whether
the decision taken by the body
under review was one which it was legally permitted to take in the
way that it did.’
[8]
In what follows, I shall first outline the principal provisions of
the DMA that are
relevant for purposes of this appeal. I shall then
set out the background to the matter, focusing on the chronology of
events that
led to the making of the impugned decisions and
regulations. Finally, I shall consider the attack on the role and
function of the
NCCC, the challenge to the validity of the
regulations made by the COGTA Minister and the challenge to the
validity of the directions
issued by the Minister of Trade, Industry
and Competition.
The DMA
[9]
The DMA’s principal purpose is to provide ‘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’.
[13]
It seeks to achieve this purpose by creating structures and processes
for dealing with disasters on the national, provincial and
local
levels.
[14]
It defines a
disaster as ‘a progressive or sudden, widespread or localised,
natural or human-caused occurrence which’
has the effect of
either causing or threatening to cause ‘death, injury or
disease’; ‘damage to property, infrastructure
or the
environment’; or ‘significant disruption of the life of a
community’; and ‘is of a magnitude that
exceeds the
ability of those affected by the disaster to cope with its effects
using only their own resources’.
[15]
[10]
The DMA applies when a disaster is not serious enough to justify the
declaration of a state of
emergency, but serious enough that the
ordinary law cannot deal with it.
[16]
It is administered by a minister designated by the President.
[17]
In the current state of disaster, that minister is the COGTA
Minister.
[11]
Apart from allowing for the making of regulations, the DMA also
creates and empowers a range
of administrative bodies, and authorizes
a variety of actions during the currency of a state of disaster. In
addition, empowerments
in other laws can also be used to deal with a
disaster, as has happened with the present Covid-19 disaster through
the use of unemployment
insurance funds in terms of the
Unemployment
Insurance Act 63 of 2001
, tax relief in terms of the tax legislation
and enhanced social assistance in terms of existing social security
legislation. Enhanced
administrative activity of this sort is not
unusual in times of crisis, as the South African government’s
response to the
Spanish influenza pandemic of the immediate
post-World War I years and the great depression of the late 1920s and
early 1930s attest.
[18]
[12]
Section 26
of the DMA allocates responsibilities in respect of
national disasters. It provides that the cabinet, in the national
sphere of
government, 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
’.
[19]
[13]
In terms of
s 26(2)
, the cabinet is required to 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.’
Section
26(3)
provides that provincial and local governments may provide
assistance to the national government in a national disaster and in
dealing with its consequences; and that the cabinet, ‘in
exercising its primary responsibility, must act in close co-operation

with the other spheres of government’.
[14]
In the event of a national disaster befalling the country,
s 27(1)
vests powers in a designated minister, by notice in the
Government
Gazette
,
to declare a national state of disaster. He or she may only do so,
however, if one of two preconditions is present: if ‘existing

legislation and contingency arrangements do not adequately provide
for the national executive to deal effectively with the disaster;
or
if ‘other special circumstances warrant the declaration of a
national state of disaster’.
[15]
After a national disaster has been declared, the designated minister
may, in terms of
s 27(2)
, ‘make regulations or issue directions
or authorise the issue of directions’ concerning a range of
issues that include:
‘the release of any available resources of
the national government, including stores, equipment, vehicles and
facilities’;
[20]
the
implementation of any national disaster management plan that may
exist;
[21]
the evacuation of
people to temporary shelters if this is necessary to preserve
lives;
[22]
the ‘regulation
of the movement of persons and goods to, from or within the
disaster-stricken or threatened area’;
[23]
the ‘suspension or limiting of the sale, dispensing or
transportation of alcoholic beverages in the disaster-stricken or

threatened area’;
[24]
emergency procurement procedures;
[25]
and the ‘facilitation of response and post-disaster recovery
and rehabilitation’.
[26]
Section 27(2)
(n)
is a general empowerment. It allows for regulation-making for
purposes of ‘other steps that may be necessary to prevent an

escalation of the disaster, or to alleviate, contain and minimise the
effects of the disaster’.
[16]
Two further express curbs are placed on the regulation-making powers
of the designated minister.
First, in terms of
s 27(2)
, he or she is
required to consult with the ‘responsible Cabinet member’
before making regulations that bear on that
minister’s
portfolio. So, for instance, before making a regulation concerning
emergency procurement procedures, he or she
must consult with the
Minister of Finance. Secondly, in terms of
s 27(3)
, his or her
regulation-making power may only be exercised to the extent necessary
to achieve certain stated purposes. There are
five permissible
purposes. They are:
‘
(a)
assisting and protecting the public;
(b)
providing relief to
the public;
(c)
protecting
property;
(d)
preventing or
combating disruption; or
(e)
dealing with the
destructive and other effects of the disaster.’
Regulations
may be made that prescribe ‘penalties for any contravention of
the regulations’.
[27]
[17]
A national state of disaster has a limited lifespan. A state of
disaster that has been declared
lapses after three months. It may be
revoked sooner but also may be extended for periods of one month at a
time.
[28]
Background
[18]
The first Covid-19 cases were diagnosed in Wuhan, China in late 2019
and early 2020. The virus
spread rapidly around the world and the
first case in South Africa was confirmed on 5 March 2020. About a
week later, as a result
of the global spread of Covid-19 infections,
the World Health Organisation (the WHO) declared the outbreak of
Covid-19 to be a
pandemic – a disease affecting people over a
large geographical area.
[29]
[19]
By 15 March 2020, the number of cases in South Africa had risen to
about 40. On that day, the
head of the National Disaster Management
Centre, ‘after assessing the potential magnitude and severity
of the COVID-19 pandemic
in the country’, issued a notice in
terms of
s 23(1)
(b)
of the DMA in which he classified the pandemic as a national
disaster.
[30]
The effect of
this classification was, in terms of
s 23(8)
of the DMA, to place the
primary responsibility for coordinating and managing the disaster on
the national executive.
[20]
On the same day, and as a result of the classification of the
pandemic as a national disaster,
the COGTA Minister, having been
designated by the President as the responsible minister in terms of
s
3
of the DMA, declared a national state of disaster in terms of
s
27(1)
of the DMA.
[31]
The
state of national disaster has been extended from time to time, and
is still in operation.
[21]
On that day too, the NCCC was formed as a cabinet committee. It
consisted of the President and
19 ministers. Five days later, on 20
March 2020, the NCCC was expanded to include the entire cabinet.
[22]
On 18 March 2020, the COGTA Minister promulgated the first
regulations in terms of the DMA (the
initial regulations).
[32]
Their purpose was stated to be to ‘prevent an escalation of the
disaster or to alleviate, contain and minimize the effects
of the
disaster’. To this end, the regulations, inter alia, prohibited
gatherings,
[33]
closed schools
and partial care facilities
[34]
and limited the sale, dispensing or transportation of liquor.
[35]
Regulation 10
empowered ministers to issue directives and reg 11
created criminal offences, such as the offence of convening a
gathering.
[23]
On 23 March 2020, the President addressed the nation. He announced
that a lockdown of the entire
population was to be implemented with
effect from 26 March 2020. By this time, the number of infections had
risen dramatically,
from 40 cases when the state of disaster was
proclaimed on 15 March 2020 to 402 cases by 23 March 2020. The
purpose of the lockdown
was principally to ‘flatten the curve’
– to slow the spread of Covid-19 in order to buy time for the
country’s
health care system to expand its capacity (including
by the establishment of field hospitals), preparing and equipping
health care
facilities with such necessary equipment as personal
protective equipment (PPE) and ventilators, and intensifying testing
and prevention
programs.
[24]
In order to implement the lockdown, the regulations were amended on
25 March 2020 (the lockdown
regulations).
[36]
Regulation 11A
defined the term ‘lockdown’ to mean ‘the
restriction of movement of persons during the period for which this
regulation is in force and effect, namely from 23H59 on Thursday, 26
March 2020, until 23H59 on Thursday 16 April 2020, and during
which
time the movement of persons is restricted’. The term
‘movement’ was defined in the same regulation to
mean
‘entering or leaving a place of residence or, in the case of
people not ordinarily resident in the Republic, their place
of
temporary residence while in the Republic’.
[25]
The regulations provided that for the duration of the lockdown ‘every
person is confined
to his or her place of residence, unless strictly
for the purpose of performing an essential service, collecting a
social grant,
or seeking emergency, life-saving, or chronic medical
attention’.
[37]
Movement
between provinces was prohibited.
[38]
The regulations also provided that ‘[a]ll businesses and other
entities shall cease operations during the lockdown, save
for any
business or entity involved in the manufacturing, supply, or
provision of an essential good or service’.
[39]
On the following day a number of amendments were effected to the
regulations.
[40]
For instance,
the regulation closing all businesses except for those providing
essential goods or services was amended to allow
for people to work
from their homes – in other words, remotely.
[41]
[26]
Thereafter, two more amendments to the lockdown regulations were
promulgated in early April 2020.
On 16 April 2020, the lockdown was
extended to 30 April 2020.
[42]
This was effected by the simple expedient of substituting ‘30
April 2020’ for ‘16 April 2020’ wherever
it
appeared in the lockdown regulations. A number of other substantive
amendments were also effected. For instance,
regulation 11B(9)
was
inserted to allow for the movement of children between co-holders of
parental responsibilities and rights and caregivers, in
certain
defined circumstances.
[27]
On 20 April 2020, the regulations were amended yet again. Annexure B
of the lockdown regulations
had listed goods and services that were
categorized as essential. They included, as essential goods, ‘[a]ny
food products,
including non-alcoholic beverages’.
[43]
The category was amended by GN 471,
Government
Gazette
43240 of 20 April 2020 to read:
‘
Any
food product, including non-alcoholic beverages, but excluding cooked
hot food’.
[28]
Clearly, the lockdown could not endure indefinitely. With that in
mind, the COGTA Minister briefed
the cabinet on 20 April 2020 on a
system that would be used to ease the restrictions progressively. It
had three components: a
system of what were termed alert levels,
which calibrated the levels of response to the spread of the virus
and the readiness of
the health care system to respond; an industry
classification system for the staggered re-opening of the economy;
and a system
for enhanced public health and social distancing
arrangements in workplaces and public spaces.
[29]
Five alert levels were proposed in the COGTA Minister’s
presentation. The highest level
– level 5 – was the most
stringent and involved a lockdown to deal with high levels of the
spread of the virus and
low health system readiness. Level 4 involved
less restrictions on the movement of people and applied when there
was moderate to
high virus spread with low to moderate readiness.
Level 3 involved what were described as moderate restrictions and
applied when
the virus spread was moderate, with moderate readiness.
Level 2 involved further reduced restrictions and applied when the
virus
spread was moderate and readiness was high. Finally, level 1
involved minimum restrictions and applied when the virus spread was

low and there was a high degree of readiness.
[30]
The President addressed the nation on 23 April 2020. He introduced
the concept of a ‘risk-adjusted
approach’ and the
different alert levels. He announced that the entire country would be
moved from level 5 – the strict
lockdown that had been in place
since 26 March 2020 – to level 4. The effect of that was to be
that some of the lockdown
restrictions would be eased and more
economic activity would be permitted.
[31]
On 25 April 2020, the COGTA Minister published a document entitled a
‘draft framework for
sectors’. It contained proposals for
what activities would and would not be allowed during each level. She
called for public
comment on the content of the document, with
specific reference to the activities proposed for level 4. After a
significant number
of responses over the next two days, the COGTA
Minister, having consulted with ‘relevant Cabinet members’,
promulgated
regulations on 29 April 2020 (the level 4 regulations) to
give effect to the move to level 4.
[44]
[32]
It is these regulations that are the subject of challenge in this
appeal. In addition, the appellants
challenge certain policy
decisions that, they alleged, were taken by the NCCC, and that were
then given effect to by the COGTA
Minister when she made the level 4
regulations. I shall deal with the content of the level 4 regulations
in more detail below.
Suffice it to say at this stage that they
ameliorated the harshness of the lockdown regulations in a number of
significant respects.
[33]
The alert level of the country has since been reduced further to
level 1, before being increased
again to level 3. Many of the
restrictions in the level 4 regulations no longer apply. Despite
that, the appellants argue that
the issues they raised are not moot,
particularly as the country could be placed once more on level 4 or
level 5. While the respondents
argued in their papers that the matter
was moot, they did not persist with that contention and argued the
merits of the appeal
fully. I am satisfied that the interests of
justice require a decision from this court on the issues raised by
this appeal, even
though the level 4 regulations have been replaced
with level 3 regulations.
[45]
It is only in respect of one matter – the validity of
directions issued by the Minister of Trade, Industry and Competition

– that they rely on mootness. I shall deal with that issue in
due course. I turn now to the issues that we are required to
decide.
The NCCC
[34]
The appellants sought an order, in terms of paragraph 3 of the notice
of motion, declaring that
three decisions taken by the NCCC were
unconstitutional and invalid. Those decisions, described as ‘policy
decisions’,
were the decisions to place the country under
lockdown, to extend the lockdown, and to place the country on level
4.
[46]
They accepted that, in
respect of each decision, legal effect was given to it when the COGTA
Minister made the lockdown regulations
on 25 March 2020, amended
those regulations to extend the lockdown on 16 April 2020 and made
the level 4 regulations on 29 April
2020.
[35]
I shall first consider the evidence concerning the creation, role and
composition of the NCCC
before considering the issues that must be
determined. They are twofold: whether these decisions, made
antecedent to the regulations,
are justiciable; and if they are,
whether, if the NCCC took the decisions, it had the lawful authority
to do so.
[36]
The creation, role and functioning of the NCCC was dealt with in
detail in the answering affidavit
of the COGTA Minister. It came into
being on 15 March 2020, the day the national state of disaster was
declared. On that day, the
cabinet took a decision to create it as a
structure of the cabinet that would devote itself exclusively to
dealing with the pandemic.
At that stage it was made up of 19 members
of the cabinet and was chaired by the President.
[37]
The creation and composition of the NCCC was confirmed in a letter
written by the President on
18 March 2020 in which he identified the
purpose of the structure as being the coordination of the ‘national
emergency response
to the coronavirus’. The original members of
the NCCC were set out in the letter. They included the Deputy
President, the
Minister of Health, the COGTA Minister, the Minister
of Finance, the Minister of Police, the Minister of Defence and
Military Veterans,
the Minister of Trade, Industry and Competition
and the Minister of Transport. The letter concluded by stating that
due to the
urgency of addressing the pandemic, the NCCC would meet
three times per week.
[38]
The ministers who first comprised the NCCC were chosen on the basis
of the anticipated important
roles that their departments would play
in dealing with the pandemic. It soon became clear, as infections
began to spike dramatically,
that the pandemic would be worse than
initially anticipated, and that the entire cabinet should be drawn
into the NCCC. The President
invited the entire cabinet to the NCCC
meeting of 20 March 2020 and, since then, all cabinet members have
participated in its functioning.
[39]
The COGTA Minister described the role and functioning of the NCCC as
follows:
‘
116
Although the whole of Cabinet is now on the NCCC, it is not,
qua
the NCCC, a decision-making body. Rather, it coordinates, facilitates
and implements the government’s response to Covid-19.
The
facilitation role includes enabling me, as the designated Minister
under the
Disaster Management Act, to
consult relevant Ministers, for
the purposes of
section 27
of the DMA and more generally.
117 Many Cabinet members
also have statutory powers to issue regulations in response to
COVID-19, and have also been empowered to
issue directions for the
same purpose. The NCCC is a committee through which they are able to
consult their relevant peers, and
more generally on their respective
department’s responses to the COVID-19 pandemic.
118
None of this, however, should be understood as taking responsibility
away from the relevant Minister that is empowered to publish

regulations or directions. In each instance, the relevant decisions
are taken by the empowered Ministers where this is required.’
[40]
She made the point that, if decisions had to be made, they would be
taken by the responsible
minister usually after debate in the NCCC.
There was, she said, ‘generally a seamless line between
discussions that happen
at the NCCC, and the decisions that ensue,
and that are taken by Cabinet or the relevant Minister’.
[41]
The NCCC provided a high-level, multi-disciplinary forum for
ministers ‘to obtain the buy-in,
advice and support of their
fellow Cabinet members for decisions they need to take, and it gives
Cabinet the opportunity to ensure
consensus positions are being
adopted’. That said, however, when action was required, the
relevant minister remained responsible
‘for preparing his or
her particular directions, and his or her department will prepare the
specific wording used in those
instruments, generally in consultation
with other departments’. Individual ministers, in other words,
still had to apply
their minds to the regulations or directions they
were empowered to make.
[42]
The COGTA Minister stated that various statements made by a number of
people, including the President,
that the NCCC took certain decisions
were not accurate. It was, in fact, the cabinet that decided that a
strict lockdown was necessary,
but she took the decision to amend the
initial regulations to give effect to this decision. When it became
apparent that the lockdown
had to be extended, she, after consulting
‘relevant Cabinet members’, amended the lockdown
regulations to achieve this
end. And after the cabinet ‘sitting
in committee as the NCCC’ had decided that the country should
be moved to level
4, she promulgated regulations to this effect on 29
April 2020.
[43]
The COGTA Minister’s version was criticized by the appellants.
It was argued that this
version should be rejected on the papers and
that the appellants’ contrary allegations should be accepted.
This argument
is without merit. The COGTA Minister gave a full and
detailed explanation that cannot be categorised as being far-fetched,
clearly
untenable, uncreditworthy or palpably implausible, so as to
justify its rejection out of hand.
[47]
On her version, only one relevant policy decision – to move the
country from level 5 to level 4 – was taken by the
NCCC. I turn
now to the reviewability of that decision.
[44]
In
Akani
Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd
[48]
Harms JA drew a distinction between policies and laws. He stated:
‘
The
word “policy” is inherently vague and may bear different
meanings. It appears to me to serve little purpose to quote

dictionaries defining the word. To draw the distinction between what
is policy and what is not with reference to specificity is,
in my
view, not always very helpful or necessarily correct. For example, a
decision that children below the age of six are ineligible
for
admission to a school can fairly be called a “policy” and
merely because the age is fixed does not make it less
of a policy
than a decision that young children are ineligible, even though the
word “young” has a measure of elasticity
in it. Any
course or program of action adopted by a government may consist of
general or specific provisions. Because of this I
do not consider it
prudent to define the word either in general or in the context of the
Act. I prefer to begin by stating the
obvious, namely that laws,
regulations and rules are legislative instruments, whereas policy
determinations are not. As a matter
of sound government, in order to
bind the public, policy should normally be reflected in such
instruments. Policy determinations
cannot override, amend or be in
conflict with laws (including subordinate legislation). Otherwise the
separation between Legislature
and Executive will disappear.’
[45]
As a general rule, policies that have been formulated and adopted by
the executive will not be
ripe for review until they are implemented,
usually after having been given legal effect by some or other
legislative instrument.
Two principles come into play in this regard:
first, that in order for an exercise of public power to be ripe for
review, it should
ordinarily be final in effect; and secondly, that
the decision must have some adverse effect for the person who wishes
to review
it, because otherwise its setting aside would be an
academic exercise which courts generally eschew.
[46]
I accept, however, that the mere fact that the impugned conduct
involves the formulation or adoption
of a policy does not necessarily
mean that it is not justiciable. If the application of a policy
infringes or threatens rights,
it may be challenged on review. That
was the case in
Minister
of Health and Others v Treatment Action Campaign and Others (No
2)
,
[49]
in which a policy not to dispense a drug that prevented mother to
child transmission of HIV/AIDS was found to violate fundamental

rights.
[50]
[47]
Generally speaking, a challenge to a policy decision before it has
been implemented will not
be justiciable because it is premature.
There are instances, however, in which a policy decision may have the
result that a constitutional
infringement is likely to occur, and
that a court may, in order to prevent that apprehended harm, grant
appropriate relief before
the policy is implemented.
[48]
Law
Society of South Africa and Others v President of the Republic of
South Africa and Others
[51]
was such a case. South Africa is a member of the South African
Development Community (SADC). A tribunal was established by SADC
to
determine disputes between member states and between individuals and
member states. After the tribunal had found against the
government of
Zimbabwe at the instance of people who had been unlawfully
dispossessed of their land during that country’s
land reform
process, the Zimbabwean government persuaded the South African
President at the time, as well as a number of other
heads of state,
to sign a protocol that purported to remove the tribunal’s
jurisdiction to determine disputes between individuals
and member
states. The President also made common cause with his colleagues to
hamstring the tribunal’s functioning in other
ways.
[49]
When an application was brought to review the President’s
decision to sign the protocol,
it was argued on his behalf that the
application was premature because the process had not been completed:
Parliament still had
to decide whether to ratify the President’s
decision, and only then would a challenge be ripe for determination.
Mogoeng
CJ, in the confirmation proceedings that followed upon the
court of first instance granting the relief, held that the
application
was not premature: the President’s decision
threatened the right of South Africans to access to court
[52]
and also had ‘serious consequences’
[53]
in that it had legal effect pending Parliament deciding whether to
ratify it or not.
[54]
[50]
This case is different. The decision-making process was completed
when the COGTA Minister made
the level 4 regulations. That gave legal
effect to the policy decision taken by the NCCC. And it was those
regulations that impacted
on the rights of people, not the prior
policy decision.
[51]
Rather than this challenge being premature, as was the case in
Rhino
Oil and Gas Exploration South Africa (Pty) Ltd v Normandien Farms
(Pty) Ltd and Another
,
[55]
it is moot because it is aimed at the wrong target – at a
decision that had no legal effect, while the exercise of power
that
does have that effect continued to operate.
[56]
It is, in this sense, similar to the matter of
Wings
Park Port Elizabeth (Pty) Ltd v MEC, Environmental Affairs, Eastern
Cape and Others
,
[57]
in which an applicant sought to review a decision at first instance,
but did not take the decision in the subsequent internal appeal,

which had upheld the initial decision, on review.
[52]
In other words, even if the review of the policy decision was to
succeed, the adverse impact
on rights brought about by the subsequent
regulations would continue. The review would consequently have no
practical effect. The
court below was correct to dismiss this
challenge.
[53]
There is another basis for the dismissal of this challenge. That
relates to the nature of the
NCCC. By the time that the impugned
policy decision was taken, the NCCC comprised of the entire cabinet.
The eighth appellant’s
counsel conceded in argument that if the
NCCC was the cabinet under another name, as he put it, the review
could not succeed. For
the reasons that I shall state briefly, I am
of the view that counsel’s concession was well-made and
correct.
[54]
In terms of s 85(1) of the Constitution, executive authority is
vested in the President. Section
85(2) determines how that authority
is exercised. In provides:
‘
The
President exercises the executive authority, together with the other
members of the Cabinet, by-
(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 administrations;
(d)
preparing and
initiating legislation; and
(e)
performing any
other executive function provided for in the Constitution or in
national legislation.’
[55]
In terms of this section, the Constitutional Court held in
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
,
[58]
the exercise of executive authority ‘is a collaborative venture
in terms of which the President acts together with the other
members
of the Cabinet’. The consequences of this allocation of power
in s 85(2) were spelt out in
Minister
of Justice and Constitutional Development v Chonco and Others
.
[59]
Ministers act collectively with the President and they are all
‘collectively and individually accountable to Parliament under

s 92(2) of the Constitution’. That means that the entire
collective is responsible for every decision, whether or not
particular
individual members were party to a particular
decision.
[60]
[56]
While the Constitution allocates executive power to the President and
the cabinet, it does not
dictate how the cabinet is to function. That
is left to them to determine and they are free to arrange their
affairs largely as
they please. Murray and Stacey say that the way in
which the cabinet operates depends to a large extent on the
President’s
style – his or her way of doing things –
and that includes ‘what matters should be discussed by Cabinet
as a
whole, what can be dealt with in Cabinet committees and what
matters need not come to Cabinet at all’.
[61]
[57]
The NCCC is a cabinet committee. That is not in dispute. It is also
not in dispute that the cabinet
may function through committees and
that decisions taken by cabinet committees bind the entire cabinet as
much as decisions taken
by the entire cabinet in a cabinet meeting.
The result is that the NCCC’s policy decision was a valid
decision of the cabinet.
The level 4
regulations and ss 26 and 27 of the DMA
[58]
The COGTA Minister is empowered by s 27 of the DMA to make
regulations. She may not make any
regulations that take her fancy
because she does not have an unfettered discretion, which is a
contradiction in terms in a constitutional
state.
[62]
Section 26 and s 27 both place significant limits on her powers.
[59]
It was argued by the appellants that the level 4 regulations were
invalid because they did not
augment existing legislation, as
required by s 26(2)
(b)
of the DMA, but purported to amend legislation, and that the COGTA
Minister strayed beyond the purposes permitted in terms of s
27(2).
[60]
I have my doubts as to the correctness of these arguments on the
facts of this case understood
in their proper context but I do not
intend to traverse those issues. These challenges fail for a more
fundamental reason. In motion
proceedings, applicants are required to
make out their case in their founding affidavit and may not make out
their case in reply.
[63]
These
challenges were not raised in the founding affidavit, but only in the
replying affidavit, with the result that the respondents
had no
opportunity to answer them.
[61]
This does not stem from an overly technical approach to pleading but
concerns fundamental fairness.
It has been considered and applied by
the Constitutional Court recently in
Gelyke
Kanse and Others v Chairperson, Senate of the University of
Stellenbosch and Others
.
[64]
The appellant had sought to introduce a new cause of action in its
reply. Cameron J observed that the High Court had ‘rightly

rejected this evidence, as must we’.
[65]
He explained the reason for doing so as follows:
[66]
‘
This
is not to stump Gelyke Kanse on technical points. It is to insist
that a litigant should stick to the case it has set out in
its
challenge, and that it does not ambush its opponent in reply with a
new case and new evidence entirely.’
[62]
This challenge to the level 4 regulations was correctly dismissed by
the court below. As the
challenge was not properly raised, there is
no reason to consider the merits.
The level 4
regulations: procedural fairness and procedural rationality
[63]
The validity of the level 4 regulations as a whole is challenged on
procedural grounds as well.
It was argued by the appellants that the
public participation process that preceded them was inadequate; and
that this resulted
in procedural unfairness (if the making of the
regulations amounted to administrative action) or procedural
irrationality (if their
making constituted executive action
reviewable in terms of the principle of legality). In addition, it
was argued that the COGTA
Minister could not have applied her mind
properly to the vast number of representations that were received.
It is necessary,
as always, to start with the facts, the COGTA
Minister having explained in detail the process that she followed in
making the level
4 regulations.
The facts
[64]
Two observations may be made at the outset. They are, first, that
from the inception of the state
of disaster, it appears that the
COGTA Minister consulted widely with cabinet colleagues, officials
and experts. She and her colleagues
consulted with a range of
interest groups as well. Secondly, many members of the public made
their views known to the COGTA Minister
in one way or another
concerning the lockdown and the regulations.
[65]
That was the setting when consideration was given to introducing the
system of levels and to
move from the strict lockdown of level 5 to a
less restrictive regime in terms of level 4. This process commenced
with the COGTA
Minister’s presentation to the cabinet on 20
April 2020 when she introduced, inter alia, the system of levels.
This presentation
was, she said, ‘the result of significant
high-level coordination between the COGTA Department and other
Departments, such
as Trade and Industry, and directly between
Ministers’.
[66]
The system of levels was introduced to the nation on 23 April 2020 by
the President in one of
his addresses. He announced at the same time
that a decision had been taken to move the country to level 4.
[67]
On 25 April 2020, the COGTA Minister announced that she intended
initiating a public participation
process ‘on the
classification of industries at the various levels’. In plain
terms, she was planning to invite the
views of members of the public
on what economic and social activities should be permitted at each
level. The invitation to the
public was published on the COGTA
website and a number of other websites as well. It took the form of a
document entitled ‘Draft
Schedule’ (the draft).
[68]
When a request for comments on the draft was published, the COGTA
Minister said that ‘sectors
and business organisations/trade
unions and members of the public are invited to submit comments on
the schedule of services to
be phased in as per the Covid-19 Risk
Adjusted Strategy to be implemented with effect from 01 May 2020’.
The website address
on which the ‘draft framework’ could
be found was provided. The request for comments concluded as follows:
‘
Feedback
and/or comments should be submitted in writing preferably for Level
Four and following the
attached
guidelines
.
South Africa will be moving to level 4 economic activity as of 1 May
2020 hence comments particularly as contained in Level 4
is
encouraged.’
An
email address was provided for comments.
[69]
The draft explained what each level entailed. It then set out what
economic activity would be
permitted and, where appropriate, specific
conditions under which an activity would be allowed. In respect of
each level, the proposed
impact on people is dealt with under the
heading ‘Personal Movement’. For instance, with reference
to level 4, the
draft explained that, in general terms, it required
that ‘[a]ll Covid-19 health and safety protocols must be
followed at
all times’, including the observance of social
distancing and the wearing of masks, that people ‘may travel to
perform
and acquire services only where such services cannot be
provided from the safety of one’s home’ and that
references
to permitted levels of employment ‘must take into
account the necessary social distancing guidelines as per the
National
Department of Health’.
[70]
The draft then dealt with the permitted economic activities. For
instance, under the first heading
it provided:
‘
All
agriculture, hunting, forestry, fishing and related services
including the export of agricultural products permitted.’
Under a heading
‘Accommodation and food service activities’, the schedule
stated:
‘
1.
Accommodation not permitted, except for quarantine and essential
services.
2. Restaurants only for
food delivery services (9am-8pm) and subject to curfew (no sit-down
or pick-up allowed).’
The
first provision was identical to the corresponding provision under
level 5 but the second was an amelioration of the level 5
provision
which had not permitted restaurant, take-away, bar and canteen
services.
[71]
The final heading dealt with personal movement. It contains 14
provisions. It was proposed, inter
alia, that in level 4,
interprovincial travel would not be permitted except ‘to return
to work with proof of employment,
in exceptional circumstances such
as funerals (with approval) or essential services’; that no
‘recreational travel
or to meet family or friends’ would
be permitted; that people would be allowed to exercise ‘under
strict public health
conditions, subject to directions, which will
exclude organized activities, recreational facilities and gyms’;
and that a
curfew would be imposed between 20h00 and 05h00.
[72]
The public was requested to submit comments by 12h00 on 27 April
2020. The COGTA Minister said,
however, that many comments were
received after the deadline, and were considered nonetheless.
[73]
A large volume of comments was anticipated and, in fact,
materialized. Teams from COGTA and the
Department of Trade, Industry
and Competition were established to deal with the comments. The
working of the teams was described
thus by the COGTA Minister:
‘
As
comments came in, they were sifted in accordance with themes and
issues raised. Each was then considered and a summary of submissions

was collated into a document titled “Report on Issues Raised by
Sectors and the Public”.’
[74]
A summary of the report was presented to the National Joint
Intelligence and Operational Structure,
referred to by the COGTA
Minister as NATJOINTS, and reported on to the NCCC. It was also used
by COGTA officials to revise the
draft level 4 regulations then being
prepared. These, in turn, were then presented to both NATJOINTS and
the NCCC for comment and
discussion. On 29 April 2020, the COGTA
Minister, after consultation with ‘the relevant Cabinet
members’, promulgated
the level 4 regulations.
[75]
Those regulations ameliorated the lockdown regulations in significant
ways. In this respect,
the COGTA Minister said that while some of the
operative provisions of the level 4 regulations were identical to the
lockdown regulations,
‘many had been altered to ease the impact
of the Lockdown, in line with the staggered approach to easing the
lockdown’.
Procedural fairness
[76]
I intend to determine whether the public participation process that
resulted in the promulgation
of the level 4 regulations was
procedurally fair on the basis that the making of subordinate
legislation is administrative action
for purposes of s 33 of the
Constitution and s 1 of the Promotion of Administrative Justice Act 3
of 2000 (the PAJA). My reasons
for doing so are set out below. I
shall then, in the alternative, consider whether the process was a
rational one on the assumption
that the making of regulations is
executive action to which the rules of procedural fairness do not
apply;
[67]
and that the
principle of legality, rather than the PAJA, applies to the review of
subordinate legislation.
[77]
Prior to 27 April 1994, the common law treated the making of
subordinate legislation as an instance
of administrative action.
Indeed, Baxter described rule-making as ‘an administrative
process in its own right’.
[68]
In
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others (Treatment Action Campaign and Another as amici
curiae)
,
[69]
Chaskalson CJ described the making of subordinate legislation as ‘an
essential part of public administration’. He held
that it had
been regarded as administrative action for purposes of the interim
Constitution and that nothing suggested that the
final Constitution
regarded it differently.
[70]
He concluded that to ‘hold that the making of delegated
legislation is not part of the right to just administrative action

would be contrary to the Constitution’s commitment to open and
transparent government’.
[71]
[78]
When Chaskalson CJ turned to whether the making of subordinate
legislation fell within the definition
of administrative action in
the PAJA, he observed that the PAJA had to be interpreted
consistently with s 33 of the Constitution
(and not the other way
around).
[72]
Administrative
action is defined in s 1 of the PAJA as follows:
‘”
administrative
action” 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;
or
(b)
. . .
which adversely affects
the rights of any person and which has a direct, external legal
effect, but does not include-
(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;
(bb)
the executive
powers or functions of the Provincial Executive, including the powers
or functions referred to in sections 121 (1)
and (2), 125 (2) (d),
(e) and (f), 126, 127 (2), 132 (2), 133 (3) (b), 137, 138, 139 and
145 (1) of the Constitution;
(cc)
the executive powers or functions of a municipal council;
. . .’
[79]
As the making of subordinate legislation complied clearly with most
of the definition of administrative
action in the PAJA, Chaskalson CJ
only had to consider two aspects: whether rule-making fell within one
of the express exclusions
from the definition; and whether it fell
within the definition of a decision. He found, on the first issue,
that it was significant
that s 85(2)
(a)
,
the power of the President and the cabinet to implement legislation
(and the corresponding power in the provincial sphere of government,

s 125(2)
(a)
,
(b)
and
(c)
)
was
not
excluded from the definition.
[73]
He concluded:
[74]
‘
If
ss 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 s 33(1) and (2) would not have served
its intended purpose.
The omission of ss 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.’
[80]
A ‘decision’ is defined in s 1 of the PAJA to mean:
‘
.
. . any decision of an administrative nature made, proposed to be
made, or required to be made, as the case may be, under an empowering

provision, including a decision relating to-
(a)
making, suspending,
revoking or refusing to make an order, award or determination;
(b)
giving, suspending,
revoking or refusing to give a certificate, direction, approval,
consent or permission;
(c)
issuing,
suspending, revoking or refusing to issue a licence, authority or
other instrument;
(d)
imposing a
condition or restriction;
(e)
making a
declaration, demand or requirement;
(f)
retaining, or
refusing to deliver up, an article; or
(g)
doing or refusing
to do any other act or thing of an administrative nature,and a
reference to a failure to take a decision must
be construed
accordingly.’
[81]
Chaskalson CJ accepted that the making of subordinate legislation was
not expressly included
in the definition of a decision. Nonetheless,
he found that this form of administrative conduct did constitute a
decision:
[75]
‘
It
is true that the making of regulations is not referred to in subparas
(a) - (f). But the reference in the main part of the definition
to
“any decision of an administrative nature” and in the
general provision of subpara (g) to “doing or refusing
to do
any other act or thing of an administrative nature” brings the
making of regulations within the scope of the definition.
This seems
to me to be the clear meaning of the definition. But if there is any
doubt on this score, the definition of “administrative
action”
must be construed consistently with s 33 of the Constitution.’
[82]
There was no clear majority on the issue of whether rule-making
constitutes administrative action
in terms of the PAJA. Chaskalson CJ
and four other members of the court found that the PAJA was
applicable, five others concluded
that it was not necessary to answer
this question and one decided that the PAJA did not apply.
[76]
[83]
In this court, however, in
City
of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd
,
[77]
Maya JA, with reference to the
New
Clicks
judgment, stated that she agreed with ‘the appellant's
contention that the making of regulations by a Minister constitutes

administrative action within the meaning of the [PAJA]’. So
too, in
Sizabonke
Civils CC t/a Pilcon Projects v Zululand District Municipality and
Others
.
[78]
Gorven J, after referring to Chaskalson CJ’s judgment in
New
Clicks
to the effect that properly construed, rule-making fell within the
ambit of administrative action in terms of s 33, concluded that
this
‘being the case, in this matter the actions of the third
respondent, who does not have original legislative powers,
but is
akin to a functionary with powers vested in him by the Act, are
subject to review’ and that ‘his actions are

characterised as legislative administrative action, and are
reviewable under PAJA’.
[84]
Although the respondents asserted that regulation-making was not
administrative action, they
put forward no argument why this was so.
They never took issue with the finding to the contrary in this court
in
City
of Tshwane
,
or with the reasoning in
New
Clicks
,
set out above, upon which it was based. I am aware of judgments,
including in this court, in which misgivings have been expressed
on
the issue. This case is not, however, the correct case to explore
whether those misgivings have any merit. We, of course, are
bound by
the finding in
City
of Tshwane
unless we are convinced that it is clearly wrong. No attempt was made
by the respondents to convince us of that.
[85]
In terms of the common law, no one had a right to be heard before
subordinate legislation was
made, unless the empowering legislation
made provision for a hearing of one form or another.
[79]
That position was ameliorated to an extent by this court in
South
African Roads Board v Johannesburg City Council
,
[80]
in which it was held that while the public in general had no right to
be heard prior to the taking of administrative action having

legislative effect, individuals who were specifically affected were
entitled to be heard. Despite this development, the common
law lacked
coherent, principled rules for rule-making.
[81]
[86]
The position was changed fundamentally by s 4 of the PAJA, which
Hoexter described as ‘a
great innovation in South African
administrative law’.
[82]
It requires that administrative action that affects the public must
be procedurally fair and creates specific mechanisms that are

designed to afford large numbers of people a hearing. Section 4(1)
provides:
‘
(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.’
[87]
Sections 4(2) and 4(3) set out the procedures to be followed in
public enquiries and notice and
comment processes. Section 4(4)
regulates permissible deviations from the procedures provided for in
certain instances. It provides:
‘
(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.’
[88]
An administrator’s choice of procedure in terms of s 4(1) is
final.
[83]
(It is difficult to
conceive of any adverse effect on rights, real or potential, or
prejudice caused by this decision, hence it
is, for all practical
purposes, unreviewable.) The true focus is on the way in which the
chosen procedure is applied. Once a choice
of procedure has been
made, that procedure must be applied fairly. The formulation of s
4(1) suggests ‘that regulations,
the most common form of
administrative action affecting the rights of the public, are indeed
subject to review under PAJA’;
and, if the making of
regulations was excluded, that would probably give rise to a
constitutional challenge based on the PAJA not
complying with s 33(1)
of the Constitution.
[84]
[89]
I turn now to the content of the specific right to be heard that was
created by s 4(1). While
the content of public enquiries and notice
and comment processes are set out in ss 4(2) and (3), and fair but
different statutory
procedures will generally be regulated by the
specific statutes concerned, the other appropriate procedures allowed
by s 4(1)
(e)
are different. The only qualification attached to s 4(1)
(e)
is that, whatever procedure is utilized, it must give ‘effect
to section 3’ of the PAJA.
[90]
There is a debate in academic circles as to whether s 4 stands alone
or is linked to s 3. Mass
argues that when interpreting s 4,
reference to s 3 is necessary because s 3 fleshes out the content of
s 4.
[85]
Hoexter, one of the
members of the South African Law Reform Commission’s committee
that drafted the first iteration of the
PAJA, takes a different view.
She argues that there is no link between ss 3 and 4, and that the
single reference to s 3, in s 4(1)
(e)
,
is a mistake. While the committee made the link expressly in its
draft, the legislature chose to remove it, but inadvertently
left the
single reference to s 3 by mistake.
[86]
[91]
The reference to s 3 cannot simply be ignored, and must be given
meaning. In the case of alternative
procedures contemplated by s
4(1)
(e)
,
s 3 serves the useful purpose of giving content to otherwise
unspecific procedures. It injects a standard of fairness into the

empty vessel of ‘another appropriate procedure’. In other
words, whatever the procedure chosen by the administrator,
in order
for it to be fair, it must comply with the requirements of s 3. That
means that, while recognizing the flexibility and
fact-specific
variability of procedural fairness in its application,
[87]
the procedure chosen must ensure that adequate notice of the intended
administrative action is given to members of the public,
that they
are given an adequate opportunity to be heard, and so on.
[88]
In the absence of a link from s 4 to s 3, the same substantive result
would be achieved in another way: in order to give content
to the
right to procedural fairness in terms of s 4(1)
(e)
,
the common law would apply
[89]
and has much the same content as s 3(2)
(b)
and s 3(3).
[90]
[92]
The appellants’ complaints are that adequate notice of the
proposed administrative action
was not given in the invitation to
make representations and that, because of the short return day, a
reasonable opportunity to
make representations was denied to members
of the public. These aspects of procedural fairness have long been
regarded as being
at its core: in
Bushula
and Others v Permanent Secretary, Department of Welfare, Eastern Cape
Provincial Government and Another
,
[91]
for instance, Van Rensburg J, held that while ‘no specific,
all-encompassing test can be laid down for determining whether
a
hearing is fair, two fundamental requirements need to be satisfied
before a hearing can be said to be fair, namely there must
be notice
of the contemplated action and a proper opportunity to be heard’.
[92]
[93]
The rules of procedural fairness are not to be applied by rote, but
flexibility and contextually,
due regard being had to the empowering
statute.
[93]
The position was
summed up in
Russell
v Duke of Norfolk and Others
,
[94]
in which the Court of Appeal stressed that the ‘requirements of
natural justice must depend on the circumstances of the case,
the
nature of the enquiry, the rules under which the tribunal is acting,
the subject matter that is being dealt with, and so forth’.

When all is said and done, the test is one of fundamental
fairness.
[95]
[94]
The proposed administrative action of which the public was given
notice was both general and
specific. The draft, which unveiled the
system of levels, contained detail of the measures the COGTA Minister
was considering in
respect of economic and social activity in each
level. In her notice inviting representations from members of the
public, however,
she asked for representations, in particular, in
respect of the proposals for level 4. By this stage, the public had
endured the
strict lockdown for about a month under level 5. The
proposed level 4 restrictions were thus an amelioration of the
restrictions
that were in place at the time.
[95]
The draft did not contain a draft of the regulations that the COGTA
Minister was considering
making. It contained a fairly detailed and
lengthy list of the activities, both economic and social, that she
was considering permitting
or restricting, the extent of the
restrictions and the conditions under which permitted activities
could be undertaken. That list,
in respect of level 4, did not stand
alone: it was embedded in a larger list dealing with each of the
other levels, and was also
informed by the experiences of members of
the public of living under a state of disaster, including a strict
lockdown. In these
circumstances, I am of the view that sufficient
detail had been given by the COGTA Minister to enable members of the
public to
make meaningful representations on the content of the level
4 regulations.
[96]
I turn now to whether the time allowed for the making of
representations was sufficient in the
circumstances. Once again,
context is crucial to the resolution of this issue: while, in one
case, it may be unfair to allow a
person two weeks to make
representations, in another, it may be fair. It will always depend on
the circumstances. In
MEC,
Department of Agriculture, Conservation and Environment and Another v
HTF Developers (Pty) Ltd
,
[96]
for instance, a developer had been given 48 hours within which to
make representations as to why a prohibitory directive should
not be
issued in terms of the Environment Conservation Act 73 of 1989. This,
it was argued, was procedurally unfair. The Constitutional
Court
held, however, that ‘in light of the serious harm already
caused and the threat of continuing harm, the 48-hour notice
period,
which HTF did not struggle to meet in submitting its representations,
was adequate by the procedural fairness standards
required by
PAJA’.
[97]
[97]
The DMA does not prescribe a procedure for the making of regulations
in terms of s 27. That is
left to the COGTA Minister who, whatever
procedure she chooses, is under a duty to act fairly.
[98]
The absence of a procedure in the DMA is not surprising given the
nature of disasters. In some cases, such as a flood or an earth

quake, for instance, extremely urgent action may be required to
manage the disaster, while in other cases, a long drought, for

instance, more time for reflection, planning and consultation may be
available to decision-makers. The definition of a disaster
recognizes
a sliding scale in the nature of disasters, ranging from the sudden
to the progressive.
[99]
Within
this context, the COGTA Minister was required to assess the urgency
of the matter, and to calibrate the procedure adopted
by her,
including the time to be allowed for the making of representations,
to the degree of urgency.
[98]
In that weighing-up process, the need to relieve the populace of some
of the more draconian economic
and social restrictions was an
important factor. As the lockdown regulations impacted on the rights
of people, their planned amelioration
brought with it a measure of
urgency that justified the limiting of the time available to members
of the public to make representations.
[100]
As soon as regulations no longer served a legitimate purpose, they
had to be repealed or amended as quickly as reasonably possible.
It
is also important to bear in mind that the level 4 regulations in
their initial form were not necessarily to be the final word
on level
4 restrictions: it had always been made clear by the COGTA Minister
that rule-making in terms of the DMA was flexible,
particularly
because in its response to the pandemic, the government was feeling
its way in hitherto uncharted territory, there
being no blueprint for
how to respond to so unique and unexpected a disaster: if a measure
was not, in retrospect, appropriate
to the purposes of the DMA, it
could at short notice be repealed or amended.
[99]
The two-day period for the furnishing of representations was shown to
be adequate ex post facto:
more than 70 000 submissions were
made to the COGTA Minister in the time allowed. What is more, the
deadline for submissions
was flexibly applied and a number of
representations received after the deadline were also considered.
[100]
When the nature of the process is viewed holistically in the context
of the DMA, the circumstances prevailing
in respect of this
particular disaster, the lockdown regulations that had been in force,
and the intention to ameliorate some of
the economic and social
harshness of the lockdown regulations, I am of the view that the
two-day period afforded to members of
the public within which to make
representations was reasonable. It cannot be said, in other words,
that by restricting members
of the public to two days within which to
make representations, the COGTA Minister acted in a procedurally
unfair manner.
Procedural
rationality
[101]
I have dealt with the adequacy of the process followed by the COGTA
Minister on the basis that s 4 of the PAJA
applies to the making of
subordinate legislation – that the making of regulations
constitutes administrative action for purposes
of s 33 of the
Constitution, and the PAJA which gives effect to s 33. If I am wrong
in that finding, I am of the view that, on
the assumption that
regulation-making in this case constituted executive action, which is
not required to be procedurally fair,
[101]
it nonetheless meets the standard of procedural rationality.
[102]
The requirement of procedural rationality was first articulated in
Albutt
v Centre for the Study of Violence and Reconciliation and
Others
.
[102]
That case concerned a special dispensation vested in the President
for the pardoning of prisoners alleged to have committed
politically-motivated
offences. One of the central issues that
confronted the court was whether the President was obliged to hear
the victims of the
applicants for pardon before taking decisions.
Ngcobo CJ held that the constitutional requirement that, in order to
be valid, the
exercise of public power had to be rational extended
beyond the merits of official decisions: the means chosen to take the
decision
– the procedure to be followed – also had to be
‘rationally related to the objective sought to be
achieved’.
[103]
He
concluded:
[104]
‘
Before
the President decides whether to grant pardon, he must establish the
facts in accordance with the criteria set out in the
special
dispensation process, namely, whether the offence was committed with
a political motive. To establish the facts the President
must hear
both the perpetrators and the victims of the crimes in respect of
which a pardon is sought. It is difficult to fathom
how the President
can establish the truth about the motive with which a crime was
committed without hearing the victim of that
crime. Decisions based
on the perpetrators' versions and their supporting political parties
are more likely to be arbitrary, considering
the President's
objective of determining whether a pardon applicant qualifies for a
pardon for an allegedly politically motivated
crime. It is not
inconceivable that a victim may want to make representations to
demonstrate that the crime committed was not of
a political nature,
but due to other motives.’
[103]
The public participation process was about the content of the
regulations at each level, with special reference
to level 4, and not
about which level was to apply. The power vested in the COGTA
Minister to make regulations in terms of the
DMA is broad in its
sweep. The subject-matter involved is extensive. The effect,
potential or real, on the rights, lives and livelihood
of every
person subject to them is drastic. The experience of people who
endured the strict lockdown was highly relevant to the
COGTA
Minister’s decision-making in respect of the content of the
regulations. She could not rationally have taken decisions
on the
content of those regulations without having afforded members of the
public an opportunity to make representations –
as she did. I
am also of the view that, for the reasons I have given in relation to
the procedural fairness of the regulation-making
process in terms of
s 4 of the PAJA, that procedure was also rational.
Did the COGTA Minister
apply her mind to the representations?
[104]
It was argued on behalf of the appellants that because of the short
period between the deadline for the making
of representations and the
promulgation of the level 4 regulations, coupled with the large
number of representations made, the
COGTA Minister could not have
applied her mind to the representations. This attack on the
regulations, it seems to me, is based
on the ground of review set out
in s 6(2)
(e)
(iii)
of the PAJA, namely that the COGTA Minister failed to take into
account relevant considerations (or, in the alternative, the
same
ground of review in terms of the principle of legality
[105]
).
The position was summed up by Henning J, in
Bangtoo
Bros and Others v National Transport Commission and Others
,
[106]
when he said that the duty cast on an administrative official to
consider ‘all relevant and material information placed before

him’ is not met if that official pays ‘mere lip-service
to this obligation . . . just as it would be a dereliction
of duty to
hear representations which are pertinent, and then to ignore them’.
[105]
The COGTA Minister’s evidence established that she did consider
the representations made by members of the
public. In order to do so,
teams comprising of officials of her department and the Department of
Trade, Industry and Competition
were set up to consider, collate and
summarise the representations. The representations were ‘fed
into’ her decision-making
process in this way. This challenge
was therefore correctly dismissed by the court below.
The attacks on
particular regulations
[106]
It was argued on behalf of the appellants that certain of the
regulations were invalid because they infringed
fundamental rights
and were not reasonable and justifiable limitations for purposes of s
36 of the Constitution. If, as I have
accepted, the making of
regulations is administrative action in terms of the PAJA, it follows
that the validity of the impugned
regulations must be determined with
reference to the grounds of review listed in s 6(2) of the PAJA. The
principal ground of review
that arises on the basis of the
appellants’ attack on the regulations is s 6(2)
(i)
– that the regulations concerned are ‘otherwise
unconstitutional or unlawful’. If my assumption is incorrect,

there will be no substantive difference: s 2 of the Constitution
provides that ‘law or conduct inconsistent with it is invalid’

and in terms of s 172(1)
(a)
,
courts must declare law or conduct that is inconsistent with the
Constitution to be invalid to the extent of the inconsistency.
[107]
The regulations that are attacked on this basis are regs 16(1) to
16(4), dealing with restrictions on the movement
of people, and regs
28(1), 28(3) and 28(4), read with Part E of Table 1, dealing with
economic activity. In broad terms, the appellants
argue that these
regulations infringe their fundamental rights to human dignity,
[107]
to freedom and security of the person,
[108]
to freedom of movement
[109]
and to freedom of trade, occupation and profession.
[110]
The limitation of
fundamental rights
[108]
The determination of the constitutionality of the impugned
regulations involves a two-stage process. First, the
appellants are
required to establish that the regulations infringe one or more of
their fundamental rights. Secondly, if they succeed
in establishing
this, the burden shifts to the respondents to justify the
infringement or infringements in terms of s 36(1) of
the
Constitution.
[111]
If they
fail to do so, the offending regulations must be declared to be
invalid to the extent of their inconsistency with the
Constitution.
[112]
If it is
just and equitable to do so, a court may limit the retrospective
effect of the declaration of invalidity or suspend it
for a period to
allow the competent authority to correct the defect.
[113]
If the respondents justify the infringement or infringements of
fundamental rights, the regulations are valid, their impact on

fundamental rights having been sanctioned by the Constitution.
[109]   Section
36, the limitation clause, provides:
‘
(1)
The rights in the Bill of Rights may be limited only in terms of law
of general application to the extent that the limitation
is
reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom, taking into account
all relevant
factors, including-
(a)
the nature of the right;
(b)
the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its purpose; and
(e)
less restrictive means to achieve the purpose.
(2)
Except as provided in subsection (1) or in any other provision of the
Constitution, no law may limit any right entrenched in
the Bill of
Rights.’
[110]
In
S
v Makwanyane and Another
,
[114]
Chaskalson P explained how the limitation provision in s 33(1) of the
interim Constitution was to be applied. That provision was
broadly
similar to s 36(1) of the final Constitution, but did not contain the
five factors listed as sub-sections
(a)
to
(e)
.
He held:
[115]
‘
The
limitation of constitutional rights for a purpose that is reasonable
and necessary in a democratic society involves the weighing
up of
competing values, and ultimately an assessment based on
proportionality. This is implicit in the provisions of s 33(1). The

fact that different rights have different implications for democracy
and, in the case of our Constitution, for “an open and

democratic society based on freedom and equality”, means that
there is no absolute standard which can be laid down for determining

reasonableness and necessity. Principles can be established, but the
application of those principles to particular circumstances
can only
be done on a case-by-case basis. This is inherent in the requirement
of proportionality, which calls for the balancing
of different
interests. In the balancing process the relevant considerations will
include the nature of the right that is limited
and its importance to
an open and democratic society based on freedom and equality; the
purpose for which the right is limited
and the importance of that
purpose to such a society; the extent of the limitation, its efficacy
and, particularly where the limitation
has to be necessary, whether
the desired ends could reasonably be achieved through other means
less damaging to the right in question.’
[111]
It has been held that this approach holds good for the application of
s 36(1) as well. In
National
Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others
[116]
Ackermann J stated:
[117]
‘
[34]
. . . The relevant considerations in the balancing process are now
expressly stated in s 36(1) of the 1996 Constitution to
include those
itemised in paras (a)--(e) thereof. In my view, this does not in any
material respect alter the approach expounded
in
Makwanyane
,
save that para (e) requires that account be taken in each limitation
evaluation of “less restrictive means to achieve the
purpose
(of the limitation)”. Although s 36(1) does not expressly
mention the importance of the right, this is a factor which
must of
necessity be taken into account in any proportionality evaluation.
[35]
The balancing of different interests must still take place. On the
one hand there is the right infringed; its nature; its importance
in
an open and democratic society based on human dignity, equality and
freedom; and the nature and extent of the limitation. On
the other
hand there is the importance of the purpose of the limitation. In the
balancing process and in the evaluation of proportionality
one is
enjoined to consider the relation between the limitation and its
purpose as well as the existence of less restrictive means
to achieve
this purpose.’
The impugned
regulations
[112]
Regulation 16 concerns restrictions on the movement of people.
Regulations 16(1), 16(2), 16(3) and 16(4) read:
‘
(1)
Every person is confined to his or her place of residence.
(2) A person may only
leave their place of residence to –
(a)
perform an essential or permitted service, as allowed in Alert Level
4;
(b)
go to work where a
permit which corresponds with Form 2 of Annexure A has been
Issued.
(c)
buy permitted goods;
(d)
obtain services that are allowed to operate as set out in Table 1 to
the Regulations;
(e)
move children, as allowed;
(f)
walk,
run or cycle between the hours of 06h00 to 09h00, within a five
kilometre radius of their place of residence: Provided that
this is
not done in organized groups.
(3) Every person is
confined to his or her place of residence from 20h00 until 05h00
daily, except where a person has been granted
a permit to perform an
essential or permitted service as listed in Annexure D, or is
attending to a security or medical emergency.
(4) Movement between
provinces, metropolitan areas and districts are prohibited except –
(a)
for workers who
have a permit to perform an essential or permitted service who have
to commute to and from work on a daily basis;
(b)
the attendance of a
funeral, as allowed;
(c)
the transportation of mortal remains; and
(d)
for learners who
have to commute to and from school or higher education institutions
on a daily basis during periods when those
institutions are permitted
to operate.’
[113]   Regulation
28 is headed ‘Operation of economic sectors’. The three
sub-regulations that are challenged
by the appellants read as
follows:
‘
(1)
Businesses and other entities as set out in Table 1 may commence
operations.
. . .
(3) Retail stores selling
goods as provided for [in] Table 1 are prohibited from selling other
goods that are not permitted in terms
of Table 1.
(4)
Persons performing essential services or permitted services must be
duly designated in writing by the head of an institution,
or a person
designated by him or her, on a form that corresponds with Form 2 in
Annexure A: Provided that [the] Cabinet member
responsible for small
enterprises may issue directions in respect of small and micro
enterprises, co-operatives, informal traders
and spaza shops in
respect of those entities.’
[114]
Table 1 provided that people involved in industries and activities
listed in the table ‘will be permitted
to perform work outside
the home, and to travel to and from work’, subject to three
conditions. They were that ‘strict
health protocols, and social
distancing rules’ were adhered to; that the return to work
under level 4 was to be phased in
to enable measures to be taken to
‘make the workplace COVID-ready’; and that the return to
work was to be effected
‘in a manner that avoids and reduces
risks of infection’.
[115]
Then followed lists of industries and activities that could, and in
some instances, could not, be undertaken in
level 4. Often conditions
were attached to the permission to engage in a particular industry or
activity. For instance, Part A
permitted ‘[a]ll agriculture,
hunting, forestry and fishing, bee-keeping, including preparation,
cultivation, harvesting,
storage, transport of live animals and
auctions (subject to health directions) and related agricultural
infrastructure and services
(including research, inspection,
certification and quality control’. Item 2 of Part B provided
that the manufacture of ‘paper
and paper products, excluding
stationary’ was permitted ‘scaling up to full employment
and subject to strict health
protocols’. Other industries were
only permitted to ‘scale up’ to 50 percent
employment,
[118]
and one
category – ‘[a]ll other manufacturing’ – was
only permitted to ‘scale up’ to 30 percent

employment.
[119]
[116]
Part E listed what products could and could not be sold, either in
the wholesale or retail trade in stores and
spaza shops as well as by
e-commerce and informal trade. For instance, food products, including
non-alcoholic beverages and animal
food, were permitted to be
sold,
[120]
as were ‘[h]and
sanitisers, disinfectants, soap, alcohol for industrial use,
household cleaning products, and personal protective
equipment’.
[121]
Item 19 prohibited the sale of alcohol.
Analysis
[117]
Section 21(1) of the Constitution provides that everyone ‘has
the right to freedom of movement’. This
includes the right to
move freely throughout the country. It ‘guarantees free
decision-making regarding how, when and where
persons move from one
place to another and how long they sojourn anywhere’.
[122]
It is clear that reg 16 infringed this right by confining everyone to
their residences, albeit with exceptions and conditions.
At the same
time, by placing such a fundamental restriction on peoples’
autonomy and freedom of choice, reg 16 also infringes
the right of
everyone to human dignity in terms of s 10 of the Constitution.
[123]
In the light of these findings, there is no need to consider whether
other fundamental rights have also been infringed by reg 16.
As the
breach of fundamental rights has been established, the enquiry moves
to the second stage – whether the infringements
were reasonable
and justified in terms of s 36.
[118]
I accept too that regs 28(1), 28(3) and 28(4) also infringe the
fundamental right to human dignity to the extent
that they limit the
freedom that everyone has to make their own decisions, as consumers,
as to what goods they wish to purchase.
These regulations also
infringe the fundamental right to freedom of trade, occupation and
profession – the right to ‘perform
activities by means of
which a livelihood is pursued’.
[124]
This right is infringed in that people may only practice their chosen
trade, occupation or profession to the extent permitted by
the
regulations.
[119]
The infringements were brought about by
regulations, the making of which were authorised by
the DMA. The
regulations qualify as a law-making instrument and, by dint of their
legislative character, they are a law of general
application.
[125]
They are, in other words, the type of legal instrument that may be
used to limit fundamental rights.
[120]
The fundamental right to freedom of movement is a foundational right
in a society such as ours. It fits with and
complements such rights
at the right to freedom and security of the person, the right to
freedom of association and the right to
privacy. In the past, the
common law right to freedom of movement was subjected to systemic
encroachments. One thinks, for instance,
of the pass laws, influx
control, race-based restrictions on inter-provincial movement,
banishments and house-arrests under the
security laws.
[126]
The link between the infringement of the right to freedom of movement
and the right to human dignity in this instance is clear
and direct.
[121]
The right to practice one’s trade, profession and occupation is
closely linked to the right to work –
the right to earn a
livelihood. It too has a close and direct connection to the right to
human dignity. In
Affordable
Medicines Trust
,
[127]
Ngcobo J explained this connection as follows:
‘
What
is at stake is more than one's right to earn a living, important
though that is. Freedom to choose a vocation is intrinsic
to the
nature of a society based on human dignity as contemplated by the
Constitution. One's work is part of one's identity and
is
constitutive of one's dignity. Every individual has a right to take
up any activity which he or she believes himself or herself
prepared
to undertake as a profession and to make that activity the very basis
of his or her life. And there is a relationship
between work and the
human personality as a whole. “It is a relationship that shapes
and completes the individual over a
lifetime of devoted activity; it
is the foundation of a person's existence”.’
[122]
The COGTA Minister’s starting point in justifying the
regulations under attack was that the State was under
an obligation
to respect, protect, promote and fulfil the fundamental rights of
everyone to life,
[128]
to
freedom and security of the person
[129]
and to access to health care services.
[130]
These rights were threatened by the pandemic. In order to arrest the
spread of Covid-19, it was necessary to compel people to remain
at
home. The logic is clear:
‘
Uninfected
persons who stay at home minimize their contact with infected persons
and infected surfaces. Infected persons who stay
at home reduce the
occasions upon which they may infect others or public surfaces.’
[123]   It is
not possible to restrict people to their homes all of the time but
the more frequently people go into public
places, the longer they
spend in those places and the greater the number of people present in
those places, the greater the likelihood
of infection and its spread.
After the strict lockdown had slowed the rate of infection
significantly, decisions had to be taken
‘as to which public
activities should be permitted, and who should be permitted to enter
public spaces and when’. Given
the large number of potential
social and economic activities, choices had to be made. The COGTA
Minister said:
‘
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.’
[124]
As the strict lockdown with its extremely limited number of permitted
activities achieved its aim, it became possible
to start a process of
relaxing the restrictions. Deciding which activities to permit and
which to prohibit required ‘a value
judgment balancing a series
of incommensurate but fundamentally important considerations’.
This involved balancing considerations
such as ‘the extent to
which an activity gives effect to a constitutional right or
obligation; the need to re-open the economy,
but in a manner that did
not undermine the gains of the strict lockdown; and the
‘effectiveness with which the activities
and the lockdown
generally could be policed’.
[125]
Ultimately, the decision to permit some activities and not to permit
others involved what the COGTA Minister described
as unavoidable
trade-offs between reducing the infection rate, on the one hand, and
the obligation on the State to respect, protect,
promote and fulfil
fundamental rights, on the other. These trade-offs, she said, were
‘inherently polycentric’ and
required ‘making value
judgments in which there is room for reasonable disagreement’.
[126]   In this
scheme of things, the COGTA Minister and Professor Salim Karim, the
chairperson of the Ministerial Advisory
Committee on Covid-19, are
sure of one thing: the appellants’ view is simply incorrect
that the wearing of face-masks, social
distancing and the observance
of health protocols, such as hand sanitizing, is all that is
necessary to keep the spread of Covid-19
in check. Professor Karim
said in this regard:
’
28.
Faced with the reality of the global spread of [Covid-19],
governments have been forced to decide how best to intervene to
mitigate the effect of the pandemic on their nation. In addition to
providing the public with reliable information and advice on

infection prevention, most governments around the world have
recognized the importance of actively regulating the public’s

behaviour by enforcing infection prevention practices.
29. Because the virus
spreads rapidly . . . there is little time available to implement
prevention, especially social distancing,
in the way that other
prevention activities would routinely be implemented. Implementing
social distancing and hand hygiene through
health messaging would
take a long time to get a sufficient number of people to adopt these
behaviour changes. A week’s delay
in this epidemic could be an
opportunity lost. To prevent a potentially catastrophic rapid
escalation in Covid-19 cases, the most
effective and immediate way to
regulate the public’s behaviour is by implementing a
“lockdown”. The purpose of
a lockdown is to minimize
interpersonal transmission of [Covid-19] by limiting the movement of
individuals. It rapidly raises awareness
of the threat posed by
[Covid-19] and creates a platform to effectively promote the other
available Covid-19 prevention measures.
30. When people stay at
home and only enter public spaces infrequently and for short periods
of time, the transmission rate of [Covid-19]
is reduced as the virus
is not transmitted from infected people to uninfected people due to a
lack of interaction and proximity.
There are simply fewer
opportunities for the virus to be spread from an infected person to
an uninfected person.
31. Unless the immediacy
and magnitude of the threat is conveyed rapidly, starkly and
decisively, it would take a long time for
people to change their
behaviour by taking up infection prevention practices, due to
difficulty and inconvenience in having to
comply with new behavioural
norms such as not shaking hands.
32.
South Africa is a country where poverty and disease occur in parallel
and the risk of rapid spread of the virus in vulnerable
communities
is a major concern.’
[127]
Similar considerations that applied to the movement regulations
applied to the economic activity regulations.
The COGTA Minister said
that a complete re-opening of the economy after the strict lockdown
would have significantly increased
‘the amount of foot traffic
in stores and shops’, would have increased ‘the number of
potentially infected areas’
and would have increased the
Covid-19 infection rate. As a result, a staggered approach was
adopted. One of the effects of this
approach, she said, was that
‘seemingly arbitrary lines’ were sometimes drawn ‘as
to which goods and services
could again be sold’.
[128]
According to the Minister of Trade, Industry and Competition,
difficult trade-offs had to be made in the process
of the phased
re-opening of the economy, as he and his colleagues strove to achieve
a balance between, as he put it, saving lives
and saving livelihoods.
The knock-on effect of opening particular sectors also had to be
taken into account. He stated in this
respect:
‘
In
addition to the manufacturing operations, the full reopening of the
sector would have included logistics operations to move goods
from
factories to warehouses, distribution centres and shopfronts. The
increased numbers of employees expected at work would have
further
increased the demand for public transport, which would have brought
people into closer [contact] with each other, during
a time where
“extreme precautions to limit community transmissions”
ought to be taken. At the point that the country
moved to Alert Level
4, there had not yet been enough time to put in place sufficiently
robust public health measures to try and
protect people when moving
to and from work using public transport.’
[129]
In the government’s approach to re-opening the economy, the
Minister said that he and his colleagues ‘had
a constitutional
obligation to err on the side of caution’. To re-open the
economy too quickly would have defeated the purpose
of level 4, which
was to ‘continue to maintain extreme precautions to limit
community transmissions and outbreaks that could
have serious and
fatal consequences’. I turn now to consider the factors of
relevance to the justification enquiry, which
I do against the
backdrop of the evidence that I have outlined.
[130]
The importance of the purpose of the limitations of fundamental
rights is self-evident. The strict lockdown was
principally intended
to ‘flatten the curve’ – to slow the spread of
Covid-19 in order to buy time for the health
care system to expand
its capacity, for the preparing and equipping of health care
facilities with such necessary equipment as
PPE and ventilators, and
for intensifying testing and prevention programs. The lockdown
brought with it the obvious drawback that
economic activity, for the
most part, ground to a halt. The level 4 regulations were aimed at
allowing greater economic activity
while, at the same time, keeping
in place the lockdown, albeit in terms not as restrictive as before.
The level 4 restrictions
were part of a continuum from the strict
lockdown regulations of level 5 to the relative normality of level 1.
In other words,
even if, in level 4, some activities could have been
permitted but were not, their proscription was of a temporary nature
and had
to be seen as part of a phased risk-averse approach to
re-opening the economy.
[131]
The purposes of reg 16 and reg 28 was to keep the pandemic under
control and to save lives, while at the same
time allowing more
social and economic activity than hitherto. The DMA anticipated that
in the case of some disasters at least,
drastic action would have to
be taken. For this reason, it specifically empowered the making of
far-reaching and invasive regulations,
including ‘the
regulation of movement of persons’,
[131]
and ‘other steps’
[132]
if these measures were necessary for purposes, inter alia, of
‘dealing with the destructive and other effects of the
disaster’.
[133]
[132]
At its most basic, the purpose of the limitation of the fundamental
right to freedom of movement and of trade,
occupation and profession
was the protection of the health and lives of the entire populace in
the face of a pandemic that has
cost thousands of lives and has
infected hundreds of thousands of people. In a sense, there has been
something akin to a trade-off:
the rights to freedom of movement, to
dignity and to pursue a livelihood were limited to prevent the spread
of Covid-19 and that,
in turn, protected the right to life of many
thousands of people, who would have died had the disease had the
opportunity to run
unchecked through the country.
[134]
[133]
I turn now to the nature and the extent of the limitation of
fundamental rights. The effect of reg 16 must be
considered as a
whole. It restricted everyone to their residences but then provided
for a series of exceptions and exemptions.
In this way, the main
prohibition in reg 16(1) was made conditional in that it allowed for
certain exemptions and exceptions from
the blanket prohibition that
was reg 16’s starting point.
[134]
Regulation 16(2) allowed for people to leave their homes in six
circumstances. So, for instance, people could
leave their homes to
perform essential or permitted services, or to go to work if that
work was permitted in terms of the list
of economic activities
contained in Table 1, and when their employers had issued permits to
authorize them returning to work.
[135]
The exemptions from the prohibition are significant. They represent a
sizable increase in social and economic
activity under level 4 when
compared to the activities permitted in terms of the lockdown
regulations. A glance at the industries
and activities which people
were permitted to undertake and the nature of the work that people
were permitted to perform outside
of their residences reveals a broad
range of economic activity. The same holds true for the right to
leave home to purchase permitted
goods and to obtain permitted
services: the goods that could be purchased under level 4 increased,
as did the services. With that
came a commensurate increase in
freedom of movement.
[136]
The right to ‘move children, as allowed’ is also a
significant improvement over the initial lockdown
regulations. Under
the level 4 regulations, children could be moved between co-holders
of parental responsibilities and rights
or caregivers, either within
municipalities or even across municipal and provincial boundaries,
under certain conditions.
[135]
Similarly, in terms of the lockdown regulations, no taking of
exercise was permitted outside of a person’s residence. In

terms of the level 4 regulations, however, exercise was allowed
outside of the residence, subject to conditions that I shall discuss

further below.
[137]
In much the same way, limited exceptions – permitted or
essential services or security or medical emergencies
– were
allowed in respect of the curfew, and to movement of people across
provincial, metropolitan or district municipal
boundaries. These
exceptions had the effect of ameliorating the harsh effects of the
lockdown regulations. In other words, while
reg 16(1) infringed the
fundamental right to freedom of movement, regs 16(2), (3) and (4), by
qualifying that infringement, reduced
its impact.
[138]
In the same way that reg 16 increased the sphere of peoples’
freedom, compared to what had been in place
before, reg 28 aimed at
increased participation in the economic sphere. Following the strict
lockdown in which the economy ground
to a halt, the purpose of reg 28
was to enable a phased and controlled return to work and an economic
start-up. It did so against
the backdrop of ensuring, to the extent
possible, that workplaces and places of business would not become
sites of Covid-19 infections.
[139]
I shall conclude by considering the last two factors listed in s
36(1) together. Essentially, they boil down to
the reasonableness of
the infringement of fundamental rights by asking the questions
whether there is a rational connection between
the infringements and
their purpose; and whether the means chosen were proportionate. When
all is said and done, this is the heart
of the limitation enquiry. As
O’Regan J and Cameron AJ said in
S
v Manamela and Another (Director-General of Justice
Intervening)
,
[136]
the proper approach to the limitation enquiry is ‘to determine
the proportionality between the extent of the limitation of
the right
considering the nature and importance of the infringed right, on the
one hand, and the purpose, importance and effect
of the infringing
provision, taking into account the availability of less restrictive
means available to achieve that purpose’.
[140]
The seriousness and the magnitude of the threat to life brought about
by the pandemic cannot be exaggerated. It
is not melodramatic to say
that it posed, and continues to pose, the biggest threat to this
country since the Spanish influenza
pandemic of the immediate
post-World War I years a century ago. It had the potential, and
continues to have the potential, to cause
devastation on a scale
that, only a short while ago, people could not have begun to imagine.
Drastic measures were required and
an excess of caution was called
for, especially given the limited knowledge about Covid-19, even
among experts in the field of
epidemiology.
[141]   In
these circumstances, the broad-based limitation of everyone’s
fundamental right to freedom of movement
and of trade, occupation and
profession was a rational response for the purposes articulated by
the COGTA Minister when she provided
for the initial lockdown. In her
answering affidavit, she explained:
‘
At
the time that South Africa implemented the lockdown, there was little
established scientific information about how the virus
is
transmitted. The initial lockdown was a severe but effective measure
to deal with any kind of infectious disease, regardless
of how easily
it may be spread. By restricting the movement of people outside of
their homes, their contact with other people would
be minimized so
that [Covid-19] would have limited opportunities to move from host to
host, as well as to spread between regions
and provinces.’
[142]
At the same time, an easing of those strict restrictions was
envisaged as and when appropriate. But that easing
came at a cost.
Even though the COGTA Minister described level 4 as being ‘largely
a success’, she said that it ‘resulted
in the increased
spread of the virus, albeit within acceptable parameters’. By
way of example, she said that an increase
in the doubling rate of the
disease was noted, from 15 days under level 5 to 12 days under level
4. By ameliorating the harshness
of the lockdown and moving to level
4, the COGTA Minister sought to strike a balance ‘between
saving lives and saving livelihoods’.
For the most part, I am
satisfied that the means chosen – and the limitation of rights
that those choices brought about –
were objectively rational.
They were also proportional in the sense that, in the circumstances,
those means were necessary to deal
with the exigencies faced by the
country, struck appropriate balances between the adverse and
beneficial effects of the response
to the pandemic and were suitable
for their intended purpose.
[143]
I take a different view in relation to two of the regulations. They
are, first, reg 16(2)
(f)
,
which permits people to leave their home in order to exercise,
subject to a number of conditions as to method, time and place;
and
secondly, items 1 and 2 of Part E of Table 1, read with reg 28(3),
insofar as these items prohibit the over-the-counter sale
of hot
food.
The exercise
regulation
[144]
Regulation 16(2)
(f)
permitted limited forms of exercise, during a defined period, within
a specified locality: people could only exercise by walking,
running
or cycling; they could only do so between 06h00 and 09h00; and they
could only do so within five kilometres of their homes.
I have
already found that reg 16(2) limits the fundamental right to freedom
of movement and to human dignity and that, generally
speaking, the
limitations that it imposed were justifiable. I am of the view,
however, that reg 16(2)
(f)
is not capable of justification because it was not rational or
proportional.
[145]
The purpose of imposing a short period of time during which people
could exercise was justified by the COGTA Minister
solely on the
basis of it being easier to police than a longer period. But, on the
other side of the coin, the restriction undermined
the very purpose
of the movement regulations, namely to prevent people from
congregating, and thus increasing the possibility of
the spread of
Covid-19 infections. Instead, reg 16(2)
(f)
,
by imposing a three-hour window within which everyone could exercise,
had the effect of concentrating people, particularly in
densely
populated areas or areas considered amenable for walking, running or
cycling. In the founding affidavit, the point was
made that because
of the lateness of sunrise during autumn and winter in the Western
Cape in particular, ‘those wishing to
exercise were deprived of
the benefit of more than half of the allotted time, which only
exacerbates the congestion on the streets
during the final 90 minutes
of the exercise period’.
[146]
No attempt has been made to justify why only three forms of exercise
were permitted. It is difficult to imagine
a rational reason. Why,
for instance, should a person not be permitted to exercise by
canoeing or kayaking on a river or a dam?
Why should a person not be
permitted to exercise by swimming in a dam or river? Similarly, no
reasons have been given to justify
why people were restricted to
taking exercise within five kilometres of their homes. Why should a
person not be permitted to travel
six kilometres from home to hike in
the veld or up a mountain? In the absence of explanations for these
limitations, I find that
there is no rational explanation to justify
them.
[137]
The result is
that no rational connection has been established between the
restrictions and their ostensible purpose. They are
also
disproportional because their necessity has not been demonstrated,
and nor is it obvious or explained.
[138]
[147]
In conclusion, the infringements of fundamental rights brought about
by reg 16(2)
(f)
have not been justified in terms of s 36(1) of the Constitution. That
being so, reg 16(2)
(f)
is ‘otherwise unconstitutional’ in terms of s 6(2)
(i)
of the PAJA. It is also irrational in terms of s 6(2)
(f)
(ii)
and unreasonable for want of proportionality in terms of s
6(2)
(h)
.
[139]
Regulation 16(2)
(f)
will be declared to be invalid to the extent of its inconsistency
with the Constitution. It will be necessary to alter the order
of the
court below to that extent.
The hot food
prohibition
[148]
The real target of the appellants’ attack on reg 28 appears, in
fact, to be directed at Part E of Table
1, read with reg 28(3), which
deals with the permissions and prohibitions applicable to the
wholesale and retail trade, including
stores, spaza shops, e-commerce
and informal trading. To a large extent, they question why some
economic activities are included,
while others are not. For the most
part, that question has been answered by the COGTA Minister and the
Minister of Trade, Industry
and Competition. One issue – the
prohibition on the selling of hot food over the counter –
remains to be dealt with.
[149]
Item 1 of Part E of Table 1 had, under level 5, specifically
prohibited the selling of hot food at, for instance,
supermarkets.
This was a controversial and potentially unreasonable restriction on
the freedom of shopkeepers to sell any food
products, and of
consumers to make choices as to how their money would be spent.
[150]
When the COGTA Minister called for representations prior to making
the level 4 regulations, her guidelines did
not contain the
prohibition on selling hot food in item 1. Item 2, however, allowed
for the selling of hot food, but provided that
hot food could be sold
‘only for home delivery’.
[151]   The
level 4 regulations took this form. Reg 28(3) provided that retail
stores ‘selling goods as provided
for [in] Table 1’ were
‘prohibited from selling other goods that are not permitted in
terms of Table 1’. Item
1 and 2 of Part E of Table 1 (headed
‘PERMISSIONS AND PROHIBITIONS’) read:
‘
1.
Food products including non-alcoholic beverages and animals food.
2. The sale of hot cooked
food, only for home delivery.’
The
effect was that, while a supermarket could sell, to in-store
customers, a salad or a cold pie, it could not sell a hot piece
of
chicken or a hot pie. The latter items could only be sold if they are
delivered to the customer’s home.
[152]
The COGTA Minister’s justification for this prohibition was
that it aimed at preventing people in shops
from standing at a
counter waiting for the preparation of a hot meal. It seems to me
that this explanation is not objectively rational.
The prohibition,
furthermore, is not proportional to the mischief that the COGTA
Minister sought to avoid. It is arbitrary in the
extreme to draw a
distinction, to put it at its crudest, between a hot piece of chicken
and a cold piece of chicken. It is premised
on the idea that hot food
will be prepared while customers wait, whereas often hot food has
been pre-prepared and all that is required
is for the food to be
handed to the customer, in the same way that cold food would be. If
the intention of the prohibition was
to prevent people waiting while
their hot meals were prepared, items 1 and 2 are not tailored to the
avoidance of the identified
mischief. In the result, items 1 and 2 of
Part E of Table 1, read with reg 28(3) have not been justified and
are ‘otherwise
unconstitutional’, in terms of s 6(2)
(i)
of the PAJA, as well as irrational in terms of s 6(2)
(f)
(ii)
and disproportional, and hence unreasonable, in terms of s 6(2)
(h)
.
A declarator to this effect will be made, and to this extent too, the
order of the court below will be amended.
The clothing
directions
[153]
The appellants attack the validity of a direction made by the
Minister of Trade, Industry and Competition in respect
of what
clothing could be sold under level 4. I shall deal with this issue
but briefly.
[154]
Item 15 of Part E of Table 1, when read with reg 28(3), permitted the
sale of ‘[w]inter clothing, footwear,
bedding and heaters and
the components and fabrics required to manufacture these’. On
12 May 2020, the Minister issued a
notice entitled ‘Directions
regarding the sale of clothing, footwear and bedding during alert
level 4 of the Covid-19 national
state of disaster’.
[140]
He purported to issue the direction in terms of reg 4(10)
(a)
of the level 4 regulations. This regulation provides:
‘
Any
Cabinet member may issue and vary directions, as required, within his
or her mandate, to address, prevent and combat the spread
of COVID-19
and its impact on matters relevant to their portfolio, from time to
time, as may be required, including –
(a)
disseminating
information required for dealing with the national state of
disaster.’
[155]
In direction 2 of the directions, he said that his purpose was ‘to
provide direction on the type of clothing,
footwear and bedding which
may be sold by retailers during Alert Level 4 in terms of Part E of
Table 1 of the Regulations’.
The appellants challenged the
validity of the directions as a whole on the basis that the Minister
had no power, in terms of reg
4(10
(a)
,
to issue directions concerning what clothing, footwear and bedding
could be sold: the directions had no connection with the purpose
of
that regulation, namely the dissemination of information in order to
‘prevent and combat the spread of COVID-19’.
[156]
Some of the direction purportedly given to retailers appears, with
all due respect, to have been clouded with
a good measure of
irrationality. For instance, the Minister directed that ‘short
sleeved knit tops’ could be sold where
they were ‘promoted
and displayed as worn under cardigans and knitwear’;
[141]
that ‘short sleeved t-shirts’ could be sold where they
were ‘promoted and displayed as under garments for
warmth’;
[142]
that
‘crop bottoms worn with boots and leggings’ could be
sold; and that ‘shirts, either short- or long-sleeved’

could be sold where they were ‘displayed and promoted to be
worn under jackets, coats and/or knitwear’.
[157]
In my view, it is not necessary to decide on the validity of the
clothing directions. Direction 4 provided that
they only remained in
force for the duration of level 4. They thus ceased to be of force or
effect on 31 May 2020 when level 4
ended and the country was moved to
level 3. Soon after this, the Minister issued a notice in which he
advised the public that the
clothing directions had expired and were
no longer in force.
[143]
I
can see no practical purpose in deciding the merits of the challenge
and take the view that the court below was correct in concluding
that
it was moot.
Conclusion and order
[158]
In summary, I have found that, when the NCCC took a policy decision
that was given legal effect by the COGTA Minister,
it was legally
entitled to do so, and that, in any event, that policy decision was
moot and therefore not justiciable; the challenge
to the level 4
regulations based on improper purpose was not properly raised; the
level 4 regulations were made in a procedurally
fair manner,
alternatively, they were made in terms of a rational decision-making
process; the COGTA Minister applied her mind
to the representations
that she received from members of the public; the specific movement
and economic activity regulations that
were challenged were, with two
exceptions, reasonable and justifiable limitations of fundamental
rights; and the challenge to the
clothing directions made by the
Minister of Trade, Industry and Competition was moot and did not, on
this account, have to be decided.
[159]
I also found that reg 16(2)
(f)
of the level 4 regulations was invalid to the extent that it
permitted only three forms of exercise to be taken, during a limited

period in a specific location; and that items 1 and 2 of Part E of
Table 1, read with reg 28(3) of the level 4 regulations, were
invalid
to the extent that they prohibited the over-the-counter sale of hot
food.
[160]
For the most part, the appellants’ appeal has failed. The
success that they have achieved is extremely limited.
It cannot be
said that they have achieved substantial success. They are
accordingly not entitled to costs. In line with the
Biowatch
principle,
[144]
however, no
costs order will be made against them.
[161]   The
order of the court below must be amended to reflect the partial
success achieved by the appellants. I accordingly
make the following
order:
1. The appeal is
dismissed, save to the limited extent set out in paragraph 2 below.
2. The order of the court
below is amended to read:
‘
1.
Save for the relief granted in paragraph 2 below, the application is
dismissed.
2. It is declared that:
(a) regulation 16(2)
(f)
of the regulations promulgated in GN 480,
Government Gazette
43258 of 29 April 2020 (the level 4 regulations) is invalid to the
extent that it limited: the taking of exercise to three means,
namely
walking, running and cycling; the time during which exercise could be
taken to the hours between 06h00 and 09h00; and the
location for
taking exercise to a radius of five kilometres from a person’s
residence; and
(b)
items 1 and 2 of Part E of Table 1, read with reg 28(3), of the level
4 regulations are invalid to the extent that they prohibited
the sale
of hot cooked food, otherwise than for delivery to a person’s
home.’
________________________
C Plasket
Judge
of Appeal
APPEARANCES
For the first to seventh
appellants:    A Katz SC and K Perumalsamy
Instructed by:
Ashersons Attorneys, Cape
Town
Webbers
Attorneys, Bloemfontein
For the eighth
appellant:    N Arendse SC and E Richards
Instructed by:
Ashersons Attorneys, Cape
Town
Webbers
Attorneys, Bloemfontein
For the respondents:
M T K Moerane SC, N H Maenetje SC, N Muvanga and D Watson
Instructed by:
State Attorney, Cape Town
State
Attorney, Bloemfontein
[1]
Esau
and Others v Minister of Co-operative Governance and Traditional
Affairs and Others
[2020]
ZAWCHC 56; 2020 (11) BCLR 1371 (WCC).
[2]
Liversidge
v Anderson
1942
AC 206 (HL).
[3]
At
244.
[4]
In
re Willem Kok and Nathaniel Balie
(1879)
9 Buch 45 at 66.
[5]
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998]
ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1451
(CC). At para 56,
Chaskalson P, Goldstone and O’Regan JJ said that ‘it is
a fundamental principle of the rule of
law, recognized widely, that
the exercise of public power is only legitimate where lawful’
and, at para 58, they said that
‘the legislature and executive
in every sphere are constrained by the principle that they may
exercise no power and perform
no function beyond that conferred on
them by law’.
[6]
Constitution,
s 1
(c)
.
[7]
R
v Pretoria Timber Co (Pty) Ltd and Another
1950
(3) SA 163
(A) at 180-181.
[8]
S
v Mabena and Another
[2006]
ZASCA 178
;
2007 (1) SACR 482
(SCA) para 2.
[9]
Constitutional
Principle VI of Schedule 4 of the interim Constitution required the
Constitutional Assembly, when drafting the
final Constitution, to
make provision for the separation of powers.
[10]
Ex Parte
Chairperson of the Constitutional Assembly: In re Certification of
the Constitution of the Republic of South Africa,
1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) paras 106-113;
South
African Association of Personal Injury Lawyers v Heath and Others
[2000]
ZACC 22
;
2001 (1) SA 883
(CC);
2001 (1) SA 77
(CC) paras 24-25.
[11]
Sinovich
v Hercules Municipal Council
1946
AD 783
at 802-803.
[12]
R
v Somerset County Council, ex parte Fewings and Others
[1995]
1 All ER 513
(QB) at 515d-g.
[13]
Long title
.
[14]
The
most important structure that the DMA creates is the National
Disaster Management Centre, an institution within the public
service
s 8). 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

involved in disaster management and communities’ (s 9).
[15]
Section
1.
[16]
Section
2.
[17]
Section
3.
[18]
Lawrence
Baxter
Administrative
Law
(1984) at 10-13.
[19]
Section
26(1).
[20]
Section
27(2)
(a)
.
[21]
Section
27(2)
(c)
.
[22]
Section
27(2)
(d)
.
[23]
Section
27(2)
(f)
.
[24]
Section
27(2)
(i)
.
[25]
Section
27(2)
(l)
.
[26]
Section
27(2)
(m)
.
[27]
Section
27(4).
[28]
Section
27(5).
[29]
Collins
Concise Dictionary
(21
st
Century Edition).
[30]
GN
312,
GG
43096
of 15 March 2020.
[31]
GN
313,
GG
43096 of 15 March 2020.
[32]
GN
318,
GG
43107 of 18 March 2020.
[33]
Regulation
3.
[34]
Regulation
6.
[35]
Regulation
8.
[36]
GN
398,
GG
43148 of 25 March 2020.
[37]
Regulation
11B(1)
(a)
(i).
[38]
Regulation
11B(1)
(a)
(iii).
[39]
Regulation
11B(1)
(b)
.
[40]
GN
419,
GG
43168 of 26 March 2020.
[41]
Regulation
3
(a)
.
[42]
GN
465,
GG
43232 of 16 April 2020.
[43]
Item
A.1(i).
[44]
GN
480,
GG
43258 of 29 April 2020.
[45]
Independent
Electoral Commission v Langeberg Municipality
[2001]
ZACC 23
;
2001 (3) SA 925
(CC);
2001 (9) BCLR 883
(CC) paras 9-11;
MEC
for Education, KwaZulu-Natal and Others v Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC);
2008 (2) BCLR 99
(CC) para 32;
AB
and Another v Pridwin Preparatory School and Others
[2020] ZACC 12
;
2020 (5) SA 327
(CC);
2020 (9) BCLR 1029
(CC) paras
109-117.
[46]
Counsel for the
eighth appellant argued this aspect of the appeal.
Paragraph
3 of the notice of motion refers to ‘any decision taken or
purported to have been taken’ by the NCCC but
that relief was
pruned down to the three specific decisions in para 1, read with fn
1, of the eighth appellant’s heads
of argument.
[47]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984]
ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635D. See too
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para 26.
[48]
Akani
Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd
[2001]
ZASCA 59
;
2001 (4) SA 501
(SCA) para 7.
[49]
Minister
of Health and Others v Treatment Action Campaign and Others (No 2)
[2002]
ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 (CC).
[50]
Paras
98-99.
[51]
Law
Society of South Africa and Others v President of the Republic of
South Africa and Others
[2018]
ZACC 51; 2019 (3) SA 30 (CC); 2019 (3) BCLR 329 (CC).
[52]
Para
29.
[53]
Para
41.
[54]
Paras
39-40.
[55]
Rhino
Oil and Gas Exploration South Africa (Pty) Ltd v Normandien Farms
(Pty) Ltd and Another
[2019]
ZASCA 88; 2019 (6) SA 400 (SCA).
[56]
For
the difference between ripeness and mootness, see Cora Hoexter
Administrative
Law in South Africa
(2 ed) (2012) at 585: ‘The idea behind the requirement of
ripeness is that a complainant should not go to court before
the
offending action or decision is final, or at least ripe for
adjudication. It is the opposite of the doctrine of mootness,
which
prevents a court from deciding an issue when it is too late.’
[57]
Wings
Park Port Elizabeth (Pty) Ltd v MEC, Environmental Affairs, Eastern
Cape and Others
2019
(2) SA 606 (ECG).
[58]
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999]
ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) para 41. See
too
President
of the Republic of South Africa and Others v Quagliani and Two
Similar Cases
[2009] ZACC 1
;
2009 (2) SA 466
(CC);
2009 (4) BCLR 345
(CC) para 23.
[59]
Minister
of Justice and Constitutional Development v Chonco and Others
[2009]
ZACC 25
;
2010 (4) SA 82
(CC);
2010 (2) BCLR 140
(CC) para 36.
[60]
Murray
and Stacey ‘The President and the National Executive’ in
Stuart Woolman and Michael Bishop (eds)
Constitutional
Law of South Africa
(2 ed) 18-16.
[61]
Murray
and Stacey in Woolman and Bishop (note 60) 18-36.
[62]
Baxter
(note 18) at 409;
Goldberg
and Others v Minister of Prisons and Others
1979 (1) SA 14
(A) at 48D-E;
Ismail
and Another v Durban City Council
1973 (2) SA 362
(N) at 371H-372B. See too Timothy Endicott
Administrative
Law
(2009) at 230 who says: ‘Having a discretion does not mean
that anything goes. Every public power must be exercised
responsibly,
and every public decision ought to be made reasonably.
This means deciding in the public interest, and with respect for the
private
interests of persons affected by the decision.’
[63]
Director
of Hospital Services v Mistry
1979
(1) SA 626
(A) at 635H-636B;
Bayat
and Others v Hansa and Others
1955 (3) SA 547
(N) at 553C-E.
[64]
Gelyke
Kanse and Others v Chairperson, Senate of the University of
Stellenbosch and Others
[2019]
ZACC 38; 2020 (1) SA 368 (CC); 2019 (12) BCLR 1479 (CC).
[65]
Para
18.
[66]
Para
19.
[67]
In
Masetlha
v President of the Republic of South Africa and Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC);
2008 (1) BCLR 1
(CC) para 77,
the majority of the Constitutional Court held that it ‘would
not be appropriate to constrain executive power
to requirements of
procedural fairness’.
[68]
Baxter
(note 18) at 190. See too Baxter at 74-75; 194-195.
[69]
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others (Treatment Action Campaign and Another as amici
curiae)
[2005]
ZACC 14
;
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC) para 113.
[70]
Para
109.
[71]
Para
113. See further, para 118. See too
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
(note 5) para 27 in which Chaskalson P, Goldstone and O’Regan
JJ said: ‘Laws are frequently made by functionaries
in whom
the power to do so has been vested by a competent legislature.
Although the result of the action taken in such circumstances
may be
“legislation”, the process by which the legislation is
made is in substance “administrative”.’
[72]
Para
100.
[73]
Para
125.
[74]
Para
126. In this paragraph, Chaskalson CJ also referred to
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
(note 58) para 142, in which the court had observed that the duty in
terms of s 85(2)
(a)
that rests on the national executive to implement legislation ‘is
an administrative one, which is justiciable, and will
ordinarily
constitute “administrative action” within the meaning of
s 33’.
[75]
Para
128.
[76]
Para
13.4.
[77]
City
of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd
[2009]
ZASCA 87
;
2010 (3) SA 589
(SCA) para 10. Leave to appeal was refused
by the Constitutional Court in
City
of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd
[2009] ZACC 34
;
2010 (5) BCLR 445
(CC), although no mention is made
in the judgment of the legal nature of the regulations in issue.
[78]
Sizabonke
Civils CC t/a Pilcon Projects v Zululand District Municipality and
Others
2011
(4) SA 406
(KZP) para 17.
[79]
Baxter
(note 18) at 580-582;
Pretoria
City Council v Modimola
1966 (3) SA 250
(A) at 261H-262A;
S
v Moroka en Andere
1969 (2) SA 394
(A) at 398H.
[80]
South
African Roads Board v Johannesburg City Council
[1991]
ZASCA 63
;
1991 (4) SA 1
(A) at 12E-13A.
[81]
See
generally, O’Regan ‘Rules for Rule-Making:
Administrative Law and Subordinate Legislation’ 1993
Acta
Juridica
157. See too Baxter ‘Rule-Making and Policy Formulation in
South African Administrative Law Reform’ 1993
Acta
Juridica
176.
[82]
Hoexter
(note 56) at 407.
[83]
In
terms of ss
(ii)
of the definition of administrative action, ‘any decision
taken . . . in terms of section 4(1)’ is excluded. See
too
New
Clicks
(note 72) para 132.
[84]
New
Clicks
(note
69) para 133.
[85]
Caroline
Mass
‘Section 4 of the AJA and Procedural Fairness in
Administrative Action Affecting the Public: a Comparative
Perspective’
in Claudia Lange and Jakkie Wessels (eds)
The
Right to Know
(2004) 63 at 65-68.
[86]
Hoexter
(note 56) at 416.
[87]
Section
3(2)
(a)
.
[88]
Section
3(2)
(b)
.
This section provides:
‘
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.’
Section 3(3) contains
three additional elements of procedural fairness that may, in the
discretion of an administrator, be afforded
to a person in an
appropriate case. Legal representation is an example.
[89]
Pharmaceutical
Manufacturers Association of SA and Another: Ex Parte President of
the Republic of South Africa and Others
[2000]
ZACC 1
;
2000 (2) SA 674
(CC);
2000 (2) BCLR 241
(CC) para 45: ‘That
is not to say that the principles of common law have ceased to be
material to the development of public
law. These well-established
principles will continue to inform the content of administrative law
and other aspects of public
law, and will contribute to their future
development.’
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) para
22: ‘The common law informs the provisions of PAJA and the
Constitution, and derives its force from the latter.’
[90]
See, on the
content of the rule at common law,
Corder
‘The Content of the
Audi
Alteram Partem
Rule in South African Administrative Law’
(1980) 43
THRHR
156.
See too Baxter (note 18) at 542-546.
[91]
Bushula and
Others v Permanent Secretary, Department of Welfare, Eastern Cape
Provincial Government and Another
2000
(2) SA 849
(E). See too
Heatherdale
Farms (Pty) Ltd and Others v Deputy Minister of Agriculture and
Another
1980 (3) SA 476
(T) at 486F-G.
[92]
At
854H.
[93]
Doody
v Secretary of State for the Home Department and Other Appeals
[1993]
3 All ER 92
(HL) at 106d-h;
Du
Preez and Another v Truth and Reconciliation Commission
[1997] ZASCA 2
;
1997 (3) SA 204
(A) at 231I-232C.
[94]
Russell
v Duke of Norfolk and Others
[1949]
1 All ER 109
(CA) at 118e;
Turner
v Jockey Club of South Africa
1974 (3) SA 633
(A) at 646D-E.
[95]
Baxter
(note 18) at 546;
Marlin
v Durban Turf Club
1942 AD 112
at 126;
Turner
v Jockey Club of South Africa
(note 94) at 645E-646A.
[96]
MEC,
Department of Agriculture, Conservation and Environment and Another
v HTF Developers (Pty) Ltd
[2007]
ZACC 25
;
2008 (2) SA 319
(CC);
2008 (4) BCLR 417
(CC).
[97]
Para
49.
[98]
In
terms of the common law, if legislation was silent as to whether
affected people were entitled to be heard, the rule was that
they
were so entitled. The rule was that ‘there is a right to be
heard, unless the statute shows, either expressly or by
implication,
a clear intention on the part of the Legislature to exclude such a
right’. See
Attorney-General,
Eastern Cape v Blom
[1988] ZASCA 83
;
1988 (4) SA 645
(A) at 662H-I;
Administrator,
Transvaal and Others v Traub and Others
[1989] ZASCA 90
;
1989 (4) SA 431
(A) at 748G-H;
South
African Roads Board v Johannesburg City Council
(note 80) at 10G-I. The fundamental right to just administrative
action and the PAJA operate in the same way. See
Transvaal
Agricultural Union v Minister of Land Affairs
[1996] ZACC 22
;
1997 (2) SA 621
(CC);
1996 (12) BCLR 1573
(CC) para
25;
National
Director of Public Prosecutions and Another v Mahomed NO and Others
[2003] ZACC 4
;
2003 (4) SA 1
(CC);
2003 (5) BLR 476
(CC) para 37.
[99]
Section
1.
[100]
See
by way of analogy,
Visagie
v State President and Others
[1989] ZASCA 83
;
1989 (3) SA 859
(A) at 865E-866A, in which it was
held that an emergency detainee who had been released from detention
subject to a ‘banning
order’ was not entitled to a prior
hearing on the conditions of his banning order because of the
urgency involved in releasing
him and thus ameliorating the
harshness of his circumstances. He was, however, entitled to be
heard after his release.
[101]
Masetlha
v President of the Republic of South Africa and Another
(note
67);
Minister
of Defence and Military Veterans v Motau and Others
[2014] ZACC 18; 2014 (5) SA 69 (CC); 2014 (8) BCLR 930 (CC).
[102]
Albutt
v Centre for the Study of Violence and Reconciliation and Others
[2010]
ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5) BCLR 391
(CC). See too
Minister
of Home Affairs and Others v Scalabrini Centre and Others
[2013] ZASCA 134; 2013 (6) SA 421 (SCA).
[103]
Para
51.
[104]
Para
70.
[105]
Democratic
Alliance v President of the Republic of South Africa and Others
[2011]
ZASCA 241
;
2012 (1) SA 417
(SCA) para 112;
Democratic
Alliance v President of the Republic of South Africa and Others
[2012]
ZACC 24
;
2013 (1) SA 248
(CC);
2012 (12) BCLR 1297
(CC) paras 39-40;
86.
[106]
Bangtoo
Bros and Others v National Transport Commission and Others
1973
(4) SA 667
(N) at 685A-D.
[107]
Constitution,
s 10.
[108]
Constitution,
s 12.
[109]
Constitution,
s 21.
[110]
Constitution,
s 22.
[111]
S
v Zuma and Others
[1995]
ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) para 21;
S
v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) para
100. See too Woolman and Botha ‘Limitations’ in Woolman
and Bishop (note 60) at 34-3 to 34-6.
[112]
Constitution,
s 172(1)
(a)
.
[113]
Constitution,
s 172(1)
(b)
.
[114]
Note
111.
[115]
Para
104.
[116]
National
Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others
[1998]
ZACC 15
;
1999 (1) SA 6
(CC); 1998 (12) 1517 (CC).
[117]
Paras
34-35. See too
Moise
v Transitional Local Council of Greater Germiston and Others
[2001] ZACC 21
;
2001 (4) SA 491
(CC);
2001 (8) BCLR 765
(CC) para
18.
[118]
See
for instance, items 5-8 of Part B.
[119]
Item 9 of
Part
B.
[120]
Item 1 of
Part
E.
[121]
Item 4 of
Part
E.
[122]
Rautenbach
‘Introduction to the Bill of Rights’ in Y Mokgoro and P
Tlakula (eds)
Bill
of Rights Handbook
at 1A-209. See too Azhar Cachalia, Halton Cheadle, Dennis Davis,
Nicholas Haysom, Penuell Maduna and Gilbert Marcus
Fundamental
Rights in the New Constitution
at 63-64;
John
Dugard
Human
Rights and the South African Legal Order
at
136; Paul Sieghart
The
International Law of Human Rights
at 178-179; Klaaren ‘Freedom of Movement’ in Woolman and
Bishop (note 60) at 66-5 to 34-9.
[123]
Rautenbach
‘
Introduction
to the Bill of Rights’ in Mokgoro and Tlakula (note 122) at
1A-147-150; Woolman ‘Dignity’ in Woolman
and Bishop
(note 60) at 36-11. See too
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
[1996] ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) para 49.
[124]
Rautenbach
‘Introduction to the Bill of Rights’ in Mokgoro and
Tlakula (note 122) at 1A-210. See too
Affordable
Medicines Trust and Others v Minister of Health and Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) paras
58-59; 62-63.
[125]
Rautenbach
‘Introduction to the Bill of Rights’ in Mokgoro and
Tlakula (note 122) at 1A-95-103; Baxter (note 18) at
349-351;
Hoexter (note 56) at 52-53;
Retail
Motor Industry Organisation and Another v Minister of Water and
Environmental Affairs and Another
[2013] ZASCA 70
;
2014 (3) SA 251
(SCA) paras 29-32.
[126]
Dugard
(note 122) at 71-78; 136-145.
[127]
Note
124 para 59.
[128]
Constitution,
s 11.
[129]
Constitution,
s 12.
[130]
Constitution,
s 27(1)
(a)
.
[131]
Section
27(2)
(f)
.
[132]
Section
27(2)
(n)
.
[133]
Section
27(3)
(e)
.
[134]
Midi
Television (Pty) Ltd v Director of Public Prosecutions (Western
Cape)
[2007]
ZASCA 56
;
2007 (9) BCLR 958
(SCA) para 9.
[135]
Regulation
17.
[136]
S
v Manamela and Another (Director-General of Justice Intervening)
[2000]
ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC) para 66. Although
this was a minority judgment, the approach to the limitation enquiry
was expressly approved by the majority.
See para 34.
[137]
Wessels
v Minister of Justice and Constitutional Development
2010
(1) SA 128
(GNP) at 141E;
Medirite
(Pty) Ltd v South African Pharmacy Council and Another
[2015] ZASCA 27
paras 14-15.
[138]
Medirite
(Pty) Ltd v South African Pharmacy Council and Another
(note
137) paras 21-22.
[139]
Medirite
(Pty) Ltd v South African Pharmacy Council and Another
(note
137) paras 20-23;
Ehrlich
v Minister of Correctional Services and Another
2009 (2) SA 373
(ECG) para 43;
South
African Reserve Bank v Public Protector and Others
2017 (6) SA 198
(GP) paras 55-57. See too Clive Plasket
‘Disproportionality – the Hidden Ground of Review:
Medirite
(Pty) Ltd v South African Pharmacy Council & Another
’
(2019) 136
SALJ
15.
[140]
GN
523,
GG
43307 of 12 May 2020.
[141]
Direction
3.7.10.
[142]
Direction
3.7.11.
[143]
GN
667 in
GG
43432 of 11 June 2020.
[144]
Biowatch
Trust v Registrar, Genetic Resources and Others
[2009]
ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC).