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2024
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[2024] ZAFSHC 82
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University Alliance South Africa (NPC) v Chairman of the Council of the University of the Free State and Others (A171/2022) [2024] ZAFSHC 82 (14 March 2024)
FLYNOTES:
CIVIL PROCEDURE – Mootness –
Covid-19
vaccinations
–
Validity
and lawfulness of mandatory vaccination policy – Asserts
policy unjustifiably violates many basic human rights
–
Respondent contends there is no live issue – Covid-19
pandemic had ended – University’s policy
with regards
to those matters had been suspended – No evidence that state
of disaster might be reinstated which will
lead to reinstatement
of policy – Dispute is therefore moot – Application
dismissed.
IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to Magistrates:
YES/NO
Case No:
A171/2022
In
the matter between:
UNIVERSITIES
ALLIANCE SOUTH AFRICA (NPC)
Applicant
and
CHAIRMAN
OF THE COUNCIL OF THE UNIVERSITY OF
THE
FREE STATE
First
Respondent
CHAIRMAN
OF THE SENATE OF THE UNVERSITY OF
THE
FREE STATE
Second
Respondent
UNIVERSITY
OF THE FREE STATE
Third
Respondent
CORAM:
LOUBSER J
et
HEFER
AJ
JUDGMENT
BY
: HEFER
AJ
HEARD
ON
:
27 NOVEMBER 2023
DELIVERED
ON:
14 MARCH 2024
[1] The
impact of the Covid-19 pandemic across the world and more in
particular in South Africa, is still fresh
in the minds of most
people. Even today, the courts are often faced with litigation
where the impact on contractual and other
obligations as well as the
economy plays a central role.
[2] In
this matter, the Court is now called upon to adjudicate upon the
validity and lawfulness of the Mandatory
Vaccination Policy in
respect of students and employers, implemented by the University of
the Free State on 14 February 2022 and
subsequently suspended by the
council of the University of the Free State on 14 July 2022.
[3] The
Covid-19 pandemic in South Africa was part of the pandemic of the
Corona Virus Disease 2019 caused by
the severe acute respiratory
syndrome Corona Virus 2 (SARS-CoV-2).
[4]
During March 2020, Minister of Health Zweli Mkhize had confirmed the
spread of the virus to South Africa with
the first known patient
being a male citizen who tested positive upon his return from Italy.
On 15 March 2020, the President of
South Africa, Cyril Ramaphosa,
declared a national state of disaster and announced measures such as
immediate travel restrictions
and the closure of schools from 18
March 2020. On 17 March 2020 the National Corona Virus Command
Council was established, to lead
the nation’s plan to contain
the spread and mitigate the negative impact of the corona virus. On
23 March 2020, a national
lockdown was announced starting on 27 March
2020.
[5]
President Ramaphosa announced that from 1 May 2020, a gradual and
phased easing of the lockdown restrictions
would begin, lowering the
national alert level to 4. From 1 June 2020, the national
restrictions were lowered to level 3. The restrictions
were further
lowered to alert level 2 on 17 August 2020. From 21 September 2020,
restrictions were lowered to alert level 1.
[6]
During December 2020, the country experienced a second wave of
Covid-19 infections, mostly with infections
from the SARS-CoV-2 Beta
variant. On 17 February 2021, the National Covid-19 Vaccination
Program was officially rolled out.
[7]
Following the release of the “Consolidated Directions on
Occupational Health and Safety Measures in
certain workplaces”
(“
the Directions”
), on 11 June 2021, regarding the
application of the Occupational Health and Safety Act 85 of 1993
(“
OHSA”
), many employers started implementing
Covid-19 mandates in the workplace.
[8]
During August 2021, Mr Nathan Pillay, a PhD student registered and
studying at Stellenbosch University was
informed by his father, who
is in the employment of the University of Stellenbosch (SU), that
Covid-19 vaccinations would likely
be required for staff members as a
condition of employment.
[9] On
suspicion that similar measures would be taken to force students to
vaccinate, Mr Pillay established an
awareness campaign, “
Maties
against Mandates
”, on Facebook on 18 September 2021. This
campaign sought to:
(a)
create awareness surrounding the prospect of
mandatory vaccinations at SU;
(b)
alert students and staff to potential risk
associated with Covid-19 vaccines in a bid to encourage informed
decisions;
(c)
provide a platform through which those opposed to
Covid-19 mandates could interact and collectively engage the
university; and
(d)
should the need arise, instruct legal
representatives.
[10] During October
2021 Mr Pillay was notified of the existence of a group opposing a
draft vaccination policy at the University
of the Witwatersrand
(Wits). After liaising with this group, he became acquainted
with one Marc Litao, with whom Mr Pillay
eventually established the
Applicant.
[11] The Telegram
group “UNIVERSITIES ALLIANCE SA” was founded by Mr Litao
during October 2021. As staff and students
from other universities
were notified of intending Covid-19 mandates, Universities Alliance
developed into a network of groups
for individual universities
connected to the original Universities Alliances Group.
[12] Members of the
communities of four additional universities joined the Universities
Alliance campaign during November
2021 consisting of a group of
students from NWU, the UFS, the University of Pretoria (UP), and the
Rhodes University.
[13] The Applicant
and its members opposed these policies on the premise that the role
of vaccines, which according to the
Applicant, only confer limited
benefits, as a measure to combat Covid-19 should not be conflated
with the role of the vaccine mandates,
which serve no practical
purpose and are harmful, according to the Applicant, in a variety of
ways.
[14] By late
November 2021 the ostensible consultative processes at various
institutions were according to the Applicant,
becoming exhausted.
[15] During late
November and December 2021, the Omicron variant was a prevalent
source of infection during South Africa’s
fourth wave of
Covid-19. For scientific and medical reasons (as advanced by the
Applicant), it was expected by Universities Alliance
and others that
Omicron’s advent would lead to a revision of Covid-19
vaccination policies in universities and workplaces.
[16] On 26 November
2021, the council of the University of the Free State, (UFS) approved
the Mandatory Vaccination Policy
(the policy) in respect of all
students and employees of the UFS
[17] According to
the Applicant, in particular the mildness of the variant, its
immunising effect on the population, its greater
transmissibility and
the very limited efficacy of available Covid-19 vaccines in relation
to reducing transmissibility of this
variant, rendered Covid-19
mandates unfit for their intended purpose.
[18] According to
the Applicant, it was thus expected that universities would share
this view and, at the very least, re-open
their consultative
processes to account for the fact that the medical and scientific
landscape had changed drastically since the
formulation of the
policies in mid late 2021. These circumstances, it was thought,
rendered policies such as that of the Respondent
wholly redundant,
and furthermore lend themselves to non-adversarial resolutions.
[19] Instead,
according to the Applicant, early 2022 saw concerted – and
coercive – efforts by the universities,
particularly the
Respondents, to implement and enforce mandates that had been
formulated before the attenuation of the SARS-CoV-2
virus.
[20] On 14 February
2022, the policy was implemented at the UFS by the respondents.
[21] The Applicant
alleges that by March 2022, it realised that universities, including
the Third Respondent, had no intentions
whatsoever of considering the
lack of efficacy of available vaccines against Omicron or the vastly
reduced severity, hospitalization
and death associated with the
variant.
[22] On 3 March
2022, a letter of demand with alleged supportive medical evidence was
sent to the Respondents in which the
following was pointed out:
(i)
that the Omicron variant of the SARS-CoV-2 virus
which at that stage accounted for almost all new cases, was far less
dangerous
than preceding variants and merely induced mild symptoms,
if any at all, in the overwhelming majority of cases in South Africa;
(ii)
that the Omicron variant has been acknowledged to
have a truly vaccinating / inoculating effect on populations, insofar
as infection
imbues percipients with natural immunity at very low
risk and the virus has spread sufficiently widely and rapidly to
reach most
of society. Students in particular benefited from this
phenomenon on account of their relative lack of vulnerability to
Covid-19
in the absence of comorbidities;
(iii)
that numerous seroprevalence studies and estimates
suggested that an overwhelming number of South Africans already
possessed natural
immunity to Covid-19, and thus had no need for the
Covid-19 vaccination;
(iv)
that the suite of South African Health Product
Regulatory Authority (SAHPRA) at that stage approved vaccines
offering minimal protection
against Omicron, and little more against
the Delta variant;
(v)
real world data did not support the notion that
available vaccines offer any meaningful protection in terms of
reductions of infections
or transmission. Numerous countries with
high vaccination rates, which were almost entirely or highly
vaccinated nations, had still
observed increases in case numbers and
hospitalisations in spite of the vaccine rollouts; and
(vi)
that numerous studies have shown that the viral
loads of unvaccinated and vaccinated individuals were comparable, and
such individuals
from both categories were equally likely to transmit
the disease.
[23] The
Respondents replied via their firm of attorneys, Bowman’s, that
the policy would remain in place.
[24] On the 17
th
of May 2022 the Applicant once again wrote to the Respondents in
which letter the Applicant reiterated that:
(i)
the National State of Disaster has since been
revoked;
(ii)
the country was experiencing drastically reduced
rates of severe illness, death and hospitalisation – with a
commensurate
easing of the burden on health resources;
(iii)
new evidence attested to the reduced virulence of
the Omicron variant along with the BA.4 and BA.5 sub-variants, in
comparison to
previous variants;
(iv)
the efficacy of the Pfizer-BioNtech Covid-19
vaccine in stopping the transmission Omicron and its subvariants was
then understood
to be below 50%, three months post-vaccination; and
(v)
the public health situation did not, at any point
since February 2022, require or justify the enforcement or
continuation of a policy
formulated in November 2021.
[25] According to
the Applicant, although the Respondents did suspend the policy
measures on 15 July 2022, it was stressed
that the policy would
remain in place for future implementation. According to the
Applicant, no acknowledgment of wrongdoing from
the Respondents was
forthcoming, nor were attempts made to redress violations of rights
or harm reduced to stakeholders by the
policy.
Nature
of the application
:
[26] According to
the Applicant, the Covid-19 disease and the South African
government’s response thereto are well documented.
The pandemic
has been experienced by all South Africans and needs little further
explanation.
[27] This is an
application in terms of Rule 53 to review, declare invalid and
unlawful and hence to set aside the policy
currently in force at the
campuses operated and controlled by the Respondents.
[28] The Applicant
and its members view the policy as an unnecessary and draconian
measure which breaches the fundamental
human rights of the
Respondents’ employees, students and third parties who access
the Respondents’ campuses.
[29] According to
the Applicant, it seeks to protect the rights of its members,
including access to higher education, by obtaining
an order reviewing
and setting aside the enforcement of the policy approved by the
Respondent on 26 November 2021 and implemented
on 14 February 2022.
[30] The Applicant
asserts that the policy, which affects students, staff members and
third parties at Respondents’
premises, unjustifiably violates
many basic human rights as established in the Bill of Rights.
Purpose
of the application
:
[31] According to
the founding affidavit:
“
[65]
The main purpose of this application is to gain access to the records
pertaining to the decisions taken by the Respondent to implement –
and, subsequently, effects amendments to – the policy,
as well
as their decision not to rescind the policy on multiple occasions in
view of the continuous emergence of new medical and
scientific
evidence pertaining to Covid-19 and associated vaccines.
[66]
This application further seeks the review and the rescission of
the
Respondents’ vaccine mandate on the basis that:
[66.1] the
policy is unlawful and invalid, and
[66.2] the
administrative process followed by the Respondents was fatally
flawed.”
Opposition
by Respondents
:
[32] According to
the Respondents, there are five elements to the relief which the
Applicant (UASA) seeks. All of them, according
to the Respondents,
are fatally flawed:
(i)
First, UASA seeks orders setting aside historical
decisions made by the UFS with regard to the Covid-19 vaccination
policy. This
question is according to the Respondents moot whereas
the policy was suspended during July 2022 before the application was
launched.
It is not in force anymore;
(ii)
Secondly, UASA seeks a declaration that
any
policy of compulsory vaccination in respect of
SARS-CoV-32 or Covid-19 is unconstitutional, unlawful and invalid.
Whereas it is
a hypothetical issue it is, according to the
Respondents, not a competent subject of a declaratory order. It also
goes beyond what
a Court would properly order, because it depends on
the facts which will exist at some future time if and when the
introduction
of a compulsory vaccination policy is considered.
Whether such a policy is lawful will depend on matters such as:
(a)
the nature of variant of the virus at the time in
question, including its
transmissibility
,
virulence and the risk it creates to human life or health;
(b)
the effectiveness of the available vaccines in
preventing infection and transmission of the disease;
(c)
the availability of effective alternatives to
vaccination;
(d)
further advances in scientific and medical
knowledge; and
(e)
the terms of the policy.
(iii)
Thirdly, UASA seeks an order that the UFS may not
in future introduce any policies which may
effect
the basic human rights of students, personnel and
third parties which engage with it. According to the Respondents, a
Court will
not grant an open-ended order of that kind – or the
more so where there is no evidence that the UFS will introduce such a
policy in future;
(iv)
Fourthly, UASA seeks an order that the UFS must
comply with the requirements of the Promotion of Administrative
Justice Act 3 of
2000 (PAJA). According to the Respondents, the UFS
is already obliged to comply with PAJA. If it fails to do so,
those affected
will have a remedy;
(v)
Fifthly, UASA seeks (in the alternative) an order
which is just and equitable, but does not specify what order it will
seek in that
regard. According to the Respondents, this is not a
permissible way to conduct litigation.
[33] According to
the Respondents, UASA fails to appreciate that by its nature, the
policy is a document which has been and
will continue to be
reappraised and revised as circumstances change and as scientific
advances take place. This is similar to the
manner in which the
Government had to respond to the Covid-19 pandemic via the Disaster
Management Act and regulations under the
Act, by instituting measures
which will change from time to time as circumstances change. Further,
the Respondents contend the
policy recognises this where paragraph
1.1 thereof states the following:
“
The
UFS recognises the preliminary nature of all scientific knowledge,
and to that
,
in
similarity with all other pandemics and viruses, the updating of
knowledge will lead to an improved understanding of how to respond
to
such viruses scientifically and medically. As a University that
follows science, we will stay abreast of any changes and respond
accordingly.”
[34] According to
the Respondents, the policy was revised with effect from 18 March
2022 and was suspended with effect from
15 July 2022.
[35] “
By
the time this matter is heard, and thereafter, there may be a new
variant of the virus, or a scientific breakthrough relating
to the
best response to the virus, which could inform whether the policy
should be put into operation or whether it should be changed”
,
according to the Respondents.
[36] With the above
in mind, it is the Respondents’ contention that the application
is fatally flawed from the outset
because:
(i)
There is no live issue between the parties: the Covid-19
pandemic had
ended, the natural state of disaster had ended, and the
University’s policy with regards to those matters had been
suspended;
(ii)
The dispute is therefore moot; and
(iii)
The application is in any event redundant.
[37] I agree with
Mr
Budlender
’s, appearing behalf of the Respondents,
submission that the question of when a declaration of rights may be
obtained and
when a matter is moot, may dispose of the entire matter.
For that reason, I deem it apposite that these aspects should be
dealt
with first.
Mootness
and declaratory relief
:
[38] “
Mootness
is not an absolute bar to the justiciability of an issue, and a court
may entertain a matter even where no live dispute
exists, if the
interest of justice so dictate. The Constitutional Court in various
matters has set out the factors to be considered
when deciding
whether or not to hear the matter. These are:
(a)
whether any order which is made will have some
practical effect either on the parties or on others;
(b)
the nature and extent of the practical effect
that any possible order may have;
(c)
the importance of the issue;
(d)
the complexity of the issue;
(e)
the fullness or otherwise of the arguments
advanced; and
(f)
resolving
the disputes between different courts.”
[1]
(Footnotes not included)
[39]
In
Independ
Electoral Commission v Langeberg Municipality
[2]
,
the Constitutional Court said the following in regards to the
practical effect factor:
“
This
court has a discretion to decide issues on appeal even if they no
longer present existing or live controversies. That discretion
must
be exercised according to what the interests of justice require. A
prerequisite for the exercise of the discretion is that
any order
which this court may make will have some practical effect on the
parties or on others.”
[40]
In
President
of the Republic of South Africa and Another v Hugo
[3]
,
Didcott J said as follows:
“
This
case is covered and governed, I believe, by that part of our recent
decision in JT Publishing (Pty) Ltd and Another v Minister
of Safety
and Security and Others where we held that constitutional questions
fell within the field of the judicial discretion
which controlled the
grant of declaratory orders, and laid down as a general policy the
rule that the discretion ought not be exercised
in favour of
answering any such question once it will have become, in the
circumstances of the case, ‘merely abstract, academic
or
hypothetical’.”
[41]
With reference to the
JT Publishing
-matter, the Court further
said as follows:
“
And
neither of the applicants for the declaration stood any longer to
gain the slightest benefit or advantage from it. No wrong
done to
either on the strength of the impugned provisions could still be
righted. The danger had passed that anything which needed
to be
stopped might occur under their authority.”
[4]
[42]
Didcott J then further said as follows:
“
Here
we see a comparable state of affairs, where events have likewise
overtaken the issue raised. Unlike the legislation assailed
in the
earlier case, the presidential decree challenged in this one has not
been repealed or stands formally. That is a difference
more apparent,
however, than real. The decree was neither
intended
nor designed to continue operating indefinitely
…”
[5]
(own
emphasis)
[43]
In
Minister
of Tourism and Others v Afriforum NPC and Another
[6]
,
a similar issue arose in relation to the Covid-19 state of national
disaster, with the same result. The Minister sought leave
to appeal
against an order of the Supreme Court of Appeal that a direction
which he had made in terms of the regulations under
the Disaster
Management Act was unlawful. While the appeal was pending, the state
of the disaster had been terminated.
“
Counsel
for the Minister conceded that the matter was moot but submitted that
nevertheless it was in the interest of justice for
this court to
grant leave to appeal. In support of this, counsel pointed out that a
judgment of this court could give guidance
on whether a Minister is
entitled to use the B-BBEE level status in respect of the leave under
the DM Act. There is no merit in
this point. The Minister’s
defence to the attack by Afriforum and Solidarity was very specific.
It related to the state of
disaster, or DM Act and the regulations
had been promulgated to regulate certain matters to the state of
disaster. The state of
disaster has been terminated. It may take a
long time before South Africa is faced with another state of
disaster.”
[7]
[44]
In the matter of
Solidariteit
Helpendehand NPC and Others v Minister of Co-operative Governance and
Traditional Affairs
[8]
,
the Supreme Court of Appeal referred to the general principle:
“
The
general principle is that a matter is moot when a court’s
judgment will have no practical effect on the parties. This
usually
occurs where there is no longer an existing or live controversy
between the parties. A court should refrain from making
rulings on
such matters, as the court’s decision will merely amount to an
advisory opinion on the identified legal questions,
which are
abstract, academic or hypothetical and have no direct effect; one of
the reasons for that rule being that a court’s
purpose is to
adjudicate existing legal disputes and its scarce resources should
not be wasted away on abstract questions of law.”
[9]
[45]
The Court further said that:
“
It
is so that the courts, in a number of cases, have dealt with the
merits of an appeal, notwithstanding the mootness of the dispute
between the parties. Those cases involved legal issues of public
importance … that would affect matters in the future and
on
which the adjudication of this Court was required.”
[10]
[46] It
was the Appellants’ contention in the latter matter, that even
though the national state of disaster
may have been lifted, and the
impugned regulations were long since repealed and no longer in force
before the matter came before
the High Court, the Minister’s
powers under the DMA ought not to escape scrutiny. It was
further contended that the
impugned regulations had forbidden the
practice of worship with the threat of criminal sanction, including
the possibility of incarceration.
Therefore, the Appellants urged the
Supreme Court of Appeal to hear the matter as that Court’s
decision on the lawfulness
of the impugned relations would effect the
rights of those accused persons and may prevent further and costly
litigation related
to the prosecution of those persons.
[47]
Saldulker JA said the following, in this regard:
“
There
is no discrete issue before us. … To adjudicate on the
circumstances that gave rise to the limitation or right to freedom
of
religion that no longer exists, would be to do so in a vacuum.
Therefore, if the court were to decide on the validity of the
limitations, there would be no effect other than a mere declaration
that the limitation was either valid or not. Such a declaration
would
in all likelihood have no effect on future regulations introduced
either to conduct another strain of Covid-19 or the emergence
of a
new pandemic, because those regulations would be fact-specific to
circumstances present during that relevant time. As a result,
this
Court’s decision in respect of the impugned regulations based
on the current facts would have no effect, as there are
no
regulations in place at the present moment.”
[11]
[48]
In the matter of
Minister
of Justice and Correctional Services and Others v Estate Late
Stransham-Ford
[12]
,
the Supreme Court of Appeal said:
“
The
Appeal Court’s jurisdiction was exercised because a discreet
legal issue of public importance arose that would affect
matters in
the future and on which the adjudication of this court was required.
The High Court is not vested with similar powers.
Its function is to
determine cases that present live issues for determination.”
[13]
[49] It
is the contention of Mr
Budlender
that on the authority of the
decisions of the SCA in
Solidariteit Helpendehande
and
Stransham-Ford
, the High Court does not have jurisdiction to
decide a matter which is moot on the grounds that it raises issues of
public importance
which might arise in the future. That, according to
the Respondents, is not a matter which a High Court may determine in
an application
for a declaratory order.
[50] It
is Mr
Budlender
’s further contention that on the basis
of the decisions of the Constitutional Court in
JT Publishing
,
Hugo
and
Afriforum
, and the Supreme Court of Appeal in
Solidariteit Helpendehande
, the challenge to lawfulness of a
policy which ceased to exist and in respect of which complete
rescission has been tendered, raises
purely historical issues which
are abstract, academic or hypothetical. The challenge is then moot.
[51] In
this respect, it was pointed out that the University had offered in
totality to rescind the policy, subject
to confirmation of this by
the University Council, which is a body that has the power to rescind
a policy which it has made. In
this respect, there is therefore no
basis for a declaration that the policy was unlawful or invalid.
[52] I
do however not agree with Mr
Budlender
’s contention to
the effect that the tender to rescind would affect the mootness of a
matter, nor the basis for a declaration
of such policy. If a High
Court has the jurisdiction to make a declaratory order in regards to
a subject matter which has not become
moot, the tender by the
institution issuing such policy, will not have any effect.
[53] In
the
Solidariteit Helpendehande
-matter, the Supreme Court of
Appeal has held that when a Court of first instance has ceased to
exist before judgment, it has no
jurisdiction to entertain the merits
of the matter. Only an Appeal Court has a discretion to hear an
appeal notwithstanding the
mootness.
[54] In
the matter of
Minister of Justice v Estate Late Stransham-Ford
(
supra
), it was further said:
“
The
common feature of the cases, where the Constitutional Court has heard
matters notwithstanding the fact that the case no longer
presented a
live issue, was that the order had a practical impact on the future
conduct on one or both of the parties to the litigation.
In IEC v
Langeberg Municipality, while the relevant election had been held,
the judgment would effect the manner in which the IEC
conducted
elections in the future. In Pillay, the Court granted another
declaratory order that significantly reduced the impact
on the school
of the order made in a court below. In Pheko, while the interdictory
relief that have been sought has become academic,
a decision on the
merits would affect its claim for restitutionary relief.”
[14]
[55]
Wallis JA in the
Stransham-Ford
matter, further said as
follows:
“…
I
do not accept that it is open to courts of first instance to make
orders on causes of action that have been extinguished, merely
because they think that the decision will have broader societal
implications. There must be many areas of the law of public interest
where a judge may think that it would be helpful to have
clarification but, unless the occasion arises in litigation that is
properly
before the court, it is not open to a judge to undertake
that task. The courts have no plenary power to raise legal issues and
make and shape the common law.”
[15]
[56] In
the matter of
President of the Republic of South Africa v Hugo
,
Goldstone J said as follows:
“
But
the circumstances of the JT Publishing case differ toto caelo
from those now before us. That was a case where the relief
asked for
on appeal was to declare legislation invalid and to place parliament
on terms to amend it. By the time judgment was delivered
in this
Court, the act was about to be repealed and replaced. The question
before the court therefore had absolutely no relevance
to the future
and in the face of it imminent repeal the applicants could not have
been granted any effective relief not even a
declaratory order.”
[16]
[57] In
the
JT Publishing (Pty) Ltd
, matter Didcott J said the
following:
“
The
only question remaining in dispute on those features of it was
whether their consequent invalidation should ensue immediately
or be
suspended for a limited period in order to afford Parliament the
opportunity of repairing the defects in them. The occasion
for that
opportunity which was thought to have arisen has disappeared,
however, since we reserved our judgment in the case. For
Parliament
has now achieved the purpose that the suspension was meant to serve
by passing in the meantime the Forms and Publications
Act 65 of 1996,
which repeals entirely both the Publications Act and the Indecent or
Obscene Photographic Matter Act, replacing
the pair with a
substantially different scheme. The new statute was enacted recently
and it has not yet been brought into operation.
But that will no
doubt happen soon, in all probability, sooner than the time when the
suggested suspension would have expired.
The old statutes, which are
already obsolete, were both then terminated. Neither of the
applicants, nor for that matter anyone
else, stands to gain the
slightest advantage to gain from an order dealing with the moribund
and futureless provisions. No wrong
which we can still right was done
to either applicant on the strength of them. Nor is anything that
should be stopped likely to
occur under the rapidly waning authority.
In
all those circumstances there can hardly be a clearer instance of
issues that are wholly academic of issues exciting no interest
but a
historical one, than those on which our reading is wanted have now
become. The repeal of the Publications Act has disposed
altogether of
the question pertaining to that.”
[17]
[58]
This means, that in order for a litigant and in particular the
Applicant in the present matter, to pass the
test of mootness, it
must be shown that the policy of the UFS does not “lack
vitality or vigour”
[18]
and
that
the Applicant, in particular its members, or anyone else, stands to
gain some advantage from an order dealing with the policy
of the UFS.
[59] Mr
Heunis
, appearing for the Applicant, contends that the
Respondents’ reference to “suspension”, “uplifting”
of the policy of the UFS, means in effect that the matter is still
live.
[60]
The definition of suspension according to the Oxford Dictionary, is
“
the act, stopping something happening, operation for a
period of time”
.
[61] At
this point I will refer to a letter written by the attorney acting on
behalf of the Respondents, dated
27 January 2023, therefore
subsequent to the launch of the application during 2022, addressed to
the attorney acting on behalf
of the Applicant. This letter recorded
inter alia
:
“
2.
We are instructed to advise you that having considered your client’s
review application,
our client is of the view that the application
does not raise any live dispute which can or should be determined by
the court.
3.
We point out the following in this regard:
-
On or about 13 July 2022, the executive committee of the University
Council (the
ECC) requested approval from the University Council for
the upliftment of the UFS Covid-19 Regulations and Required
Vaccination
Policy (the policy) with immediate effect.
-
The ECC advised the Rectorate that the policy should only in the
event of changes
in the National Regulatory environment with respect
to Covid-19, to such an extent that the policy requires
re-implementation,
make a recommendation to Council for the
re-implementation of the policy.
-
On or about 14 July 2022, the Council resolved by round robin to
uplift the policy
with immediate effect;
-
….
-
….
4.
It follows that the policy was no longer in force at the time where
your clients launched
its review application in November 2022.
5.
Our client undertakes that if the National Regulatory and health
environment with respect
to Covid-19 changes to such an extent that
it is necessary to consider reimplementation of the policy, it will
only consider reimplementation
of the policy after proper
consideration of the then available medical and scientific evidence
and the views of experts in this
regard.
6.
Our client further undertakes that if the National Regulatory and
Health Environment with
respect to Covid-19 changes to such an extent
that it is necessary to consider the introduction of the new policy
with regard to
a vaccine mandate, it will only consider the
introduction of such a policy after a proper consideration of the
then available medical
and scientific evidence and the views of
experts in this regard.
7.
The validity or otherwise of the policy does not determine any
existing, future or contingent
right or obligation. The relief which
is sought in this regard bears only on the matter which is now
history.
8.
The relief sought in paragraphs 2 to 5 of the Notice of Motion is
entirely hypothetical,
because the justifiability of any future
vaccine mandate will depend on the future nature of SARS-CoV-2 and
Covid-19 and the then
existing scientific and medical knowledge in
that regard. Further, these are matters which a court cannot
determine at this time.”
[62] In
response to this letter, the attorney acting on behalf of the
Applicant, who is also a founding member
of the Applicant and one of
its three directors, addressed a letter to Respondents’
attorneys dated 3 February 2023 in which
inter alia
the
following is stated:
“
2.
My client rejects your claim on behalf of the University of the Free
State (your client) that its
review application to have your client’s
‘Covid-19 Regulations and Required Vaccination Policy’
(the policy)
set aside and declared unlawful does not raise any live
matter to be determined by the Court.
3.
….
4.
….
5.
….
6.
This application’s outcome has significance in terms of justice
for past and current
transgressions against your client’s
stakeholders, and further as a matter of broader public interest.
7.
The legality of the policy (and mandates in general) remains untested
at High Court level.
A precedent is needed to determine the handling
of similar policies in future scenarios and beyond the confines of
the university.”
[63]
The majority of authorities relied upon by the Respondents in support
of their contention that the matter
is moot, are both in
circumstances and facts in which the relevant legislation considered
had already been repealed. In the present
matter however, the policy
had not yet been rescinded but merely suspended or uplifted.
[64] On
the version of the Respondents themselves, and in particular the UFS
itself, as we found in the letter
referred to, it does appear that
the UFS envisage that the policy may be
reimplemented
“
only in the event of changes in the national
regulatory environment with respect to Covid-19”
.
[65]
The question arises why has the UFS and its Council elected not to
rescind the policy already but has chosen
to merely suspend / uplift
it. Isn’t the inference inevitable that it wishes to keep the
policy as an eventuality and if
so, how does it affect the mootness
of the policy and the matter at hand?
[66] On
the other hand, the wording in the letter by Applicant’s
attorney referred to already, where reference
is made to “
the
broader public interest
” creates the impression that the
Applicant anticipated the mootness of the policy and the subject
matter.
[67] In
the same letter, reference is made to “
current
transgressions”
, but it is clear that due to the suspension
of the policy, there were no current transgressions at the date when
the application
was launched, at the date when the letter was
written, at the date of the hearing of the matter, as well as the
date of the judgment
whereas currently, the policy is suspended.
[68]
The Respondents, went further and stated:
“
A
precedent is needed to determine the handling of similar policies in
future scenarios and beyond the confines of the University.”
However, in the
Estate
Stransham-Ford
matter, it was said that it is not open to Courts
of first instance to make orders on causes of action that have been
extinguished
merely because they think that their decision will have
broader societal implications.
“
There
must be many areas of law of public interest where a judge may think
that it would be helpful to have clarification but, unless
the
occasion arises in litigation that is properly before the court, it
is not open to a judge to undertake that task.”
[19]
[69]
According to the Respondents, the policy had a limited duration. It
speaks for itself that this duration
was by implication whilst the
circumstances demanded the implementation of the policy, and more in
particular whilst the state
of disaster was still in place.
[70] As
in the
Afriforum
-matter referred to, the defence by the
Respondent relates to the state of the disaster at that stage. In
that sense, the duration
of the policy was indeed limited till the
termination of the state of disaster which has already taken place.
[71]
The reason for Applicant for approaching Court for the review of the
policy of the UFS, is in all likelyhood
because it foresees that the
policy might be re-implemented by the Respondents.
[72]
The Respondents themselves have also indicated that the policy will
be implemented in the event of changes
in the National Regulatory
Environment with respect to Covid-19 which could only relate to the
reinstatement of the national state
of disaster.
[73]
There is no indication produced through evidence by the Applicant
that the regulations pertaining to Covid-19
will in future change and
that the national state of disaster will be reinstated.
[74]
The Court can take cognisance of the fact that the virus and its
variants causing the pandemic of the Corona
Virus is still
in esse
in parts of the world and more in particular in South Africa. But all
indications are that the spread thereof is under control
not only in
our country but also across the world. There is no evidence before us
to the effect that the state of disaster might
be reinstated which
will then also lead to the reinstatement of the policy by the UFS.
[75]
The policy, although in its suspended form, was not designed to
continue operating indefinitely but indeed
for a limited period /
time / purpose, namely to contain the Corona Virus. Whilst presently,
there are no indications in the world
nor from the South African
government that such a state of disaster might be re-implemented in
respect of the Covid-19 pandemic,
the re-implementation thereof,
remains pure speculative. The Constitutional Court in the matter of
Minister
of Tourism and Others v Afriforum
commented
that it may indeed take a long time before South Africa is faced with
another state of disaster. However, for purposes
of the present
application, the Applicant must show through evidence (scientific
and/or medical) that there exists a reasonable
apprehension of such a
state of disaster being implemented and effectively the policy of the
University being re-implemented. In
that sense, the basis to be
decided upon in regards to the lawfulness of the policy is “
indeed
imagined or suggested but not necessary real or true”
[20]
(hypothetical)
and academic which results in the mootness of the matter.
[76] In
view of my finding in regards to mootness, I do not consider it
necessary to adjudicate on the redundancy
of the matter save to say
that I agree with the submissions on behalf of the Respondents that
the main purpose, namely to gain
access to the records pertaining to
the decisions taken by the Respondents to implement the policy, has
now been achieved and that
the Applicant has all the relevant
records. “
It has not used PAJA for the rules of court to
seek further records”
. The fact that the main purpose
has indeed been achieved underlines the fact that the relief which
the Applicant seeks is
moot (the review relief), or impermissible
(the declaratory relief), and it is therefore redundant.
[77] As
referred to in the
Mokhele
- matter the Constitutional Court
has held that it is axiomatic that mootness is not an absolute bar to
the justiciability of an
issue, and there are certain factors,
already stated, which ought to be considered whether a matter should
be heard and adjudicated
upon inspite of mootness. Such factors will
now be considered in the context of the present matter.
[78] I
have already dealt with any practical effect that an order by this
court will/might have. The policy is
currently suspended and cannot
have any adverse effect on any party, in particular members of the
Applicants, students or employers
at the UFS or any other university
in South Africa. This is currently the situation whereas it has not
been shown that the policy
be implemented in future policies, also
the practical effect in respect of the future is absent.
[79]
Undoubtedly this matter would have been a matter of great importance
had the policy not been suspended. No
evidence has been placed before
us that the policy will, on probabilities be implemented in future
[80]
Coupled with this, the policy is a document which has been and will
continuously be reappraised and revised
as circumstances change and
as scientific advances take place. This is recognised in the policy
in its preamble already referred
to.
[81]
The UFS has already undertaken that if the National Regulatory and
Health environment in respect to Covid-19
changes to such an extent
that it will be necessary to consider re-implementation of the
Policy, it will only re-implement after
a proper consideration of the
then (not current, nor past) medical and scientific evidence and the
views of experts in this regards.
There is no reason to doubt that
undertaking. If that is the case it is not of importance of how the
policy reads now but how it
reads in future and the evidence upon
which re-instatement takes place. The present Policy might be
outdated. In short the current
policy, being suspended is of no
importance, due to the fact that it may be adjusted / amended in
future
[82]
Indeed full arguments had been advanced by all parties in the matter
and indeed the issue before court is
complex. But the reality remains
that the Applicant has failed to show, based on medical and
scientific evidence, that there exists
a real possibility that a
National State of Disaster may be reinstated and the policy
subsequently be implemented.
[83] It
follows that the application should fail.
[84]
Mr
Heunis
argued
that should the Court find against the Applicant, regard must be had
to the
Biowatch
principle
which was established in the matter of
Biowatch
Trust v Register, Genetic Resources and Others
[21]
in
view of the Applicant’s pursuit of constitutional rights, both
on behalf of stakeholders of the Third Respondent and in
terms of the
public interest. He argued that it is not appropriate that a cost
order be granted against the Applicant particularly
since litigation
is neither frivolous nor vexatious.
[85]
The Respondents on the other hand, argued that the protection
afforded in the
Biowatch
-matter is not unqualified. Such
protection is specifically excluded where the litigation in question
“
is frivolous or vexatious, or in any other way manifestly
inappropriate for any of the reasons and relied upon by the
Respondents
in this regard”
.
[86]
The papers filed in this application consisted of approximately 3000
pages, the majority of which having
been filed by the Applicant
consisting to a great extent of expert reports, opinions and
correspondence. From a perusal of such
documentation, it is evident
that the institution of the application and the continuation thereof
is everything but frivolous and
vexatious. It was supported by very
well substantiating evidence.
[87]
Taken into account all the factors with reference to the
Biowatch
matter, I deem it just and equitable that each party is to pay its
own costs.
Order
:
[88]
Therefore, the following order is made:
1.
The application is dismissed with no order as to
costs.
J J F HEFER, AJ
I concur.
P J LOUBSER, J
Appearances:
On
behalf of the Applicant:
Adv
JC Heunis SC
Instructed
by: EG Cooper Majiedt Incorporated
Bloemfontein
On
behalf of the Respondents:
Adv
GM Budlender SC
Assisted
by: Adv FJ Gordon- Turner
Instructed
by: Phatshoane Henney Attorneys
Bloemfontein
[1]
South African Legal
Practice Council v LM Mokhele (1138/2022)
[2023] ZASCA 117
(14
December 2023).
[2]
[2001] ZACC 23
;
2001
(3) SA 925
(CC), par. [11].
[3]
1997
(4) SA 1
(CC), par. [54].
[4]
Par. 55 H – I, p.
25.
[5]
Par.
[56], p. 29
[6]
(CCT
318/21) [2023] ZACC 7
[7]
p.
13, par. [26]
[8]
2023
JDR 0964 (SCA)
[9]
p.
5, par. [12].
[10]
p. 6,
par. [14].
[11]
p. 9,
par. [20].
[12]
2017
(3) SA 152 (SCA).
[13]
Par.
[25].
[14]
p.
164, par. [23].
[15]
p.
165, par. [24].
[16]
p.
27, par. [51].
[17]
p.
526, par. [16] and [17].
[18]
Oxford
Dictionary, 6
th
Edition,
p. 568.
[19]
p. 165, par. [24].
[20]
Oxford Dictionary, p.
720.
[21]
2009 (6) SA 232
(CC).