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[2021] ZAGPPHC 67
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De Beer N.O and Others v Minister of Cooperative Governance and Traditional Affairs (21542/2020) [2021] ZAGPPHC 67 (19 February 2021)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO.
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED.
DATE:
19 FEBRUARY 2021
CASE
NO: 21542/2020
In
the matter between:
REYNO
DAWID DE BEER
First
Applicant
LIBERTY
FIGHTERS NETWORK
Second
Applicant
HOLA
BON RENAISSANCE FOUNDATION
Amicus
Curiae
and
THE
MINSTER OF COOPERATIVE
GOVERNANCE
AND TRADITIONAL AFFAIRS
Respondent
J
U D G M E N T
This
matter has been heard in terms of the Directives of the Judge
President of this Division dated
25
March 2020, 24 April 2020 and 11 May
2020.
The judgment and order are accordingly published and distributed
electronically.
DAVIS, J
[1]
Introduction
1.1
The parties to this
application have squared off against each other in this court on
multiple previous occasions. The applicants
are Mr Reyno De
Beer and the Liberty Fighters Network. Hola Bon Renaissance
Foundation appeared as an amicus curiae. The
respondent is the
Minster of Cooperative Governance and Traditional Affairs (The
Minister).
1.2
The first round of
litigation between these parties, was in an application heard on 28
May 2020. In that application, this
court found on 2 June 2020
that the regulations in force at that time, being those initially
published as Alert Level 3 in Government
Gazette 43364 on 28 May
2020, were so irrational in their terms and extent that they failed
the legality test for the exercise
of executive authority.
Moreover, it was found that the regulations had been promulgated
without due regard to the proportionality
test applicable when the
exercise of power results in the limitation of Constitutional rights
and the balancing between competing
rights. Both these
decisions and the orders made, are the subject matter of a pending
appeal in the Supreme Court of Appeal.
1.3
The second and third
rounds in court, involved applications for leave to appeal and
counter-appeal on 24 June 2020 and 26 August
2020 respectively,
resulting in to the aforementioned pending appeal.
1.4
Since then, much has
changed. The world and its response to the Covid-19 pandemic
has mutated from time to time. The
factual, regulatory and
legal landscapes have also undergone unprecedented changes.
1.5
At the time of the
launch of the first application on 13 May 2020, South Africa had
12 704 coronavirus cases and 219 reported
deaths resulting
therefrom. At the time of the launch of the current application
on 5 January 2021, the number of reported
cases in South Africa has
risen to 1 127 579 cases and 30 976 deaths have been
reported, and the “second wave”
was then still on its
way. The daily death toll at the time of the launch of
the first application was 17 per day and
at the launch of the second
application 513 per day. The maximum daily Covid-19
related deaths reported at the twin
peaks of the virus waves were 584
and 839 respectively.
1.6
The deaths resultant
from the pandemic, irrespective of any view any of the parties may
hold, are tragic and evoke a deep sense
of compassion. These
deaths have insinuated themselves into every level of society and
every walk of life. Those who serve
the most vulnerable in society
and those being most in need of care, being educators and members of
all branches of the health
profession, have also not been spared.
As dispassionate as the judiciary must interpret and apply the law,
with equal measure
its members are compassionate regarding every
adversity faced by subjects of the law, be it the effects of the
pandemic or the
effects of measures to curb it. This compassion
is poignantly illustrated in Justice Sach’s seminal work
The
Strange Alchemy of Life and Law
Oxford University Press, 2011 in the chapter “The judge who
cried” when proceedings before the Constitutional Court
in its
“early days” are described. The title of the
chapter says it all.
1.7
The factual landscape
in which we live, has also dramatically been affected by both the
pandemic and the measures introduced as
a response thereto.
Movement of persons, crossing of borders and the whole way in which
people and businesses conduct themselves
have all become more
restricted. Economic devastation has ruined many sectors,
particularly the entertainment, tourism and
informal sectors and
every other sector which is dependent on human interaction.
Reports of losses of literally millions
of jobs, revenue and income
abound. Added to this mix must still be the tobacco and liquor
industry debates and the criminality
which followed on the heels of
personal protection equipment distribution.
1.8
Even our language has
evolved. Concepts such as “social distancing”,
“hot-spots” and “superspreader
events” are
now common parlance.
1.9
The change in the legal
landscape came in the form of numerous legal challenges brought to
the High Courts across the country, but
particularly in the Western
Cape (the seat of Parliament) and in Gauteng (the seat of
Government). The judicial database,
SAFLII, lists no less than
367 COVID-19 related judgments, many of them precedent-setting, often
by way of full court decisions
and no less than four by the Supreme
Court of Appeal. I shall refer to some of them hereinlater.
1.10
Another change in the
regulatory environment in which we find ourselves in terms of the
provisions of the Disaster Management Act,
57 of 2002 (the DMA), is
the “adjusted” levels of control imposed from time to
time. The Alert Level 3 regulations
promulgated on 29 December
2020 form the regulatory restrictions in place at the time that this
application was heard. In
similar fashion as with previous
applications, the “moving target” of the regulations,
were “adjusted”
shortly after the hearing, by the lifting
of some of the restrictions. This adjustment took place on 1
February 2021 by way
of Government Notice R69 in Government Gazette
44130 of even date.
1.11
It is against this
background that the applicants’ application and their attack
against the regulations must be judged.
In many ways, the
applicants’ application and the assertions mentioned therein,
represent the voices of large sections of
the community. This
much is clear from the multitude of media reportage referred to by
the applicants and, on one of the
topics resulting from the multitude
of ever- changing rules, the standing ovation received by Mr De Beer
when, during oral argument,
he simply exclaimed: “my Lord, we
are confused!”
[2]
The current legal
landscape
2.1
Before dealing with the
relief now claimed by the applicants it is necessary to be alive to
the fact that a court does not have
an unfettered power to intervene
in the exercise of executive authority. The exercise of a
court’s powers is subject
to the rule of law (See:
S
v Mabena and Another
2007 (1) SACR 482
(SCA) at paragraph [2]) which includes the doctrine
of the separation of powers. This separation of powers,
provided for
in the Constitution, applied to the facts of this case
imply that the legislature has made the law (the DMA), the executive
(the
Minister) implements the law, inter alia by making regulations,
and it is up to the courts to interpret the law and to determine
whether the implementation thereof exceeded the bounds of the law.
See:
Doctors for
Life International v Speaker of the Nation Assembly
2006 (SA) 416 (CC) at paras [37] and 3[8]. In the present
context, this means that the implementation must be “legally”
exercised, that is, within legal bounds. This “legality
test”, does not involve an examination by a court of
the
“correctness” of a decision, but a determination whether
its exercise was lawful. The means to determine
this lawfulness
involves determination whether the actual “content” of
the exercise was rationally connected to the
purpose prescribed by
the enabling provision. This is also referred to as the
“rationality test”. In explaining
the rationality
test, a judgment of a full court of this Division, in
Fair
Trade Tobacco Association v President of the RSA
2020 (6) SA 513
(GP) (the
Fita
-case),
held that “
the
Minister only needs to show that the means chosen to achieve the
intended objective were reasonably capable of achieving it
”.
2.2
When the exercise of
executive authority is held up to the light of the Constitution, for
it to pass muster, it must therefore be
related to the purpose for
which the power was conferred and rationally “connected”
to the object which such exercise
seeks to achieve. See:
DA
v President of the RSA
2013 (1) SA 248
(CC) at para [27]. In
Pharmaceutical
Manufacturers Association of SA: In re: Ex parte President of the RSA
and Others
[2000] ZACC 1
;
2000 (2)
SA 674
(CC) these principles have been explained as follows at para
[85]:
“
It is a requirement of the
rule of law that the exercise of public power by the Executive and
other functionaries should not be
arbitrary. Decisions must be
rationally related to the purpose for which the power was given,
otherwise they are in effect
arbitrary and inconsistent with this
requirement. It follows that in order to pass constitutional
scrutiny the exercise of
public power by the Executive and other
functionaries must, at least, comply with this requirement. If
it does not, it falls
short of the standards demanded by our
Constitution for such action
”.
2.3
In the recent judgment
of the Supreme Court of Appeal, dealing with an attack on the
decisions taken and regulations promulgated
in terms of the DMA,
Esau
& Others v Minister of Cooperative Governance and Traditional
Affairs
(611/2020)
[2021] ZASAC 9 (28 January 2021) (the
Esau
-case)
the court said the following in its judgment in respect of an appeal
which served before it on 2 November 2020, at paragraph
[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
”.
2.4
The same court referred
to the following cynical comment of Schreiner JA in this regard in
Sinovich v Hercules
Municipal Council
1946
AD 783
at 802 – 803 “
the
law does not protect the subject against the foolish exercise of a
discretion by an official, however much the subject suffers
thereby
”.
2.5
What a court is also
however, further entitled and obliged to do, is to evaluate whether
the “proportionality test”
has been met, that is to gauge
whether, in exercising executive authority, the decision-maker has
properly weighed up the competing
interests where Constitutionally
protected rights are infringed or limited. The Supreme Court of
Appeal summarized the test
in this regard as follows in the
Esau
-case
at [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 respondent to justify the
infringement or infringements in terms of section 36(1)
if the
Constitution
”.
2.6
Where there are
competing rights and the safeguarding or promotion of one of the
rights, infringes or limits other rights, the Constitutional
Court
has expressed the position as follows in
National
Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others
1999 (1) SA 6
(CC) at paragraphs 34 – 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
”.
[3]
Relief claimed
3.1
It is against this
ever-mutating factual and legal backdrop imposed by the COVID-19
pandemic that the relief claimed by the applicants
must be
adjudicated. The relief is far and wide-ranging and, in order
to properly adjudicate the various aspects thereof,
it is necessary
that it be quoted in full. If is the following:
“
1.
That the non-compliance to the Uniform Court Rules and Practice
Directives regarding forms, service and
time periods be condoned and
that this application is being heard as urgent in terms of Rule 6
(12) of the Uniform Rules of the
Court; and
2. That the
Respondent is held in Contempt of Court for violating the Court
Order, or part thereof,
granted by Judge Davis under the
above-mentioned case number dated 2 June 2020; and
3. That the
Respondent is imprisoned for a period of 6 months, or for a period as
determined
by the Court; and/or
4. To impose such
additional or alternative penalty on the Respondent as the Court
deems appropriate
under the circumstances; and
5. That the
extension of the National State Disaster (hereafter referred to as
the “NSD”)
to 15 January 2021 in terms of section
27(5)(c) of the Disaster Management Act, 2002 (Act No. 57 of 2000) –
hereinafter referred
to as the “DMA” – promulgated
and gazetted in GN 1341 GG 43993 dated 11 December 2020, be declared
as unconditional
and invalid; and
6. That no
further or subsequent extension of the NSD are allowed which flow
from the original
NSD declared and gazette in GN 313 GG 43096 dated
15 March 2020; and
7. That the
regulations issued in terms of Section 27(2) of the DMA promulgated
and gazette
in GN 1423 GG 44044 dated 29 December 2020 be declared as
unconditional and invalid; and
8. That the
regulations issued in terms of Section 27(2) of the DMA promulgated
and gazette
in GN 1346 GG 43997 dated 15 December 2020, GN 1370 GG
44009 dated 17 December 2020 and GN 1421 GG 44042 dated 24 December
2020
declared as unconstitutional and invalid; and
9. That the
Respondent is barred form promulgated any further regulations on
terms of either
Section 27(2) or Section 59 of the DMA pending the
final outcome of the appeal before the Supreme Court of Appeal in the
matter
between the Respondent (as the Appellant therein) and the
Applicants (as the Respondent therein) under case number 538/2020;
and
10. That the compulsory
wearing of a mask or other facial covering by a member of the public,
other than
for reasonable safety purposes by any healthcare or
emergency worker, be declared as unconstitutional and invalid; and
11. That the compulsory
closure of churches, mosques, synagogues and other faith or religious
based institutions
be declared as unconstitutional and invalid; and
12. That the declarations of
unconditionally and invalidity contained herein refers to the content
of the
regulations, and not only the number of the regulation, and
apply to any other further regulations considered or promulgated by
the Respondent in terms of the DMA or by any other member of Cabinet
in any form of substituted regulations; and
13. That any application for
leave to appeal, or appeal process, will not automatically suspend
the execution
and operation of the Court Order: provided that any
interested party may approach this Court on application, after proper
service
on all parties herein, for an order to determine otherwise in
the Court’s sole discretion which deems fit;
14. That the Respondent
published the Court Order in the Government Gazette on the first
business day following
the day on which the order was granted, as
well as within three (3) business days after granting of the order in
at least 5 other
national printed newspapers; and
15. In the event of the
Respondent’s violation of paragraphs 9, 12 and 14 supra, the
National Commissioner
of the South African Police Services, or his
duly authorized representative, be authorized to arrest the
Respondent and keep her
in a police custody until the first business
day when she must be brought before this Court to provide reasons why
she should not
be held in, or further, Contempt of Court and for the
Court to make any order or direction at such hearing how to further
deal
with such a matter in its sole discretion as it deems fit; and
16. The
Respondents to pay the costs of this application on a scale as
between attorneys and client
”
.
3.2
Adv Trengove SC, who
appeared for the Minister, in written heads of argument, thematically
arranged the relief claimed under the
following headings (which Mr De
Beer readily accepted as a practical manner in which to deal with the
application):
-
The contempt relief.
-
The national state of
disaster relief.
-
The regulations relief.
-
The mask relief.
-
The places of worship
relief.
-
The further relief.
-
The issue of costs
[4]
The contempt relief
4.1
In the judgment in
respect of the application referred to in paragraph 1.2 above, on 2
June 2020, this court ordered the Minister
to “
review,
amend and republish
”
the Alert Level 3 regulations then in force, after consultation with
the relevant other cabinet ministers “…
with
due consideration to the limitations each regulation has on the
rights guaranteed in the Bill of Rights contained in the
Constitution
”.
4.2
The above order was
part of a suspension order of this court’s declaration of
Constitutional invalidity of the regulations
then published by the
Minister. The Minster had 14 days to comply with the order.
4.3
Before the 14 days had
elapsed, the Minister applied for leave to appeal. This
suspended the operation of the order in terms
of
section 18
(1) of
the
Superior Courts Act, 10 of 2013
.
4.4
Leave to appeal was
granted in respect of the “blanket” declaration of
unconstitutionality of the regulations, but was
refused in respect of
the remainder, the “specified” regulations. This
was on 30 June 2020.
4.5
The abovementioned
refusal meant that the unexpired period of the 14 days mentioned in
the initial order was no longer suspended
and continued running.
The Minister, however, applied to the Supreme Court of Appeal for the
requisite leave to also appeal
the declaration of invalidity in
respect of the “specified” regulations. This
application again suspended and
interrupted the running of the
remainder of the 14 day period. The Supreme Court of Appeal
granted the requisite leave to
appeal on 11 September 2020. The
result was that the whole of this court’s order became
suspended
pending
the appeal.
4.6
After leave to appeal
has been granted, an appealing party must prosecute such an appeal by
lodging a formal notice of appeal at
the court to which the appeal
lies, in this case, the Supreme Court of Appeal. Such a notice
of appeal has to be delivered
within strict time-frames. This,
the Minister has done in respect of the portion of this court’s
order in respect of
which itself has granted leave to appeal.
The Minister has, however, failed to timeously deliver a notice of
appeal in respect
of the portion of this court’s order
pertaining to the declaration of invalidity of the “specified”
regulations
(in respect of which leave to appeal had been granted by
the Supreme Court of Appeal). This lastmentioned notice had to
have
been delivered on 12 October 2020. This was only done 23
December 2020.
4.7
The late filing of a
notice to appeal has the result that such an appeal lapses. It
can only be revived by way of a successful
condonation application.
In the meantime, the suspension brought about by the initial appeal
processes also lapses with the
appeal. See:
Panayiotou
v Shoprite Checkers (Pty) Ltd and Others
2016 (3) SA 110
(GJ) per Sutherland J and
Schmidt
v Theron and Another
1991 (3) SA 126
(C) at 129 H – 130 G.
4.8
Mr De Beer argued that,
since the date of the lapsing of the appeal and the expiry of
whatever portion of the initial 14 days period
may have been left,
the Minister was, and remained in non-compliance with an order of
court. This, so the applicants aver
in their papers, amounts to
contempt of court. The subsequent re-instatement of Alert Level
3 by way of promulgation of “new”
regulations,
which
the applicants say,
amounts to
a circumvention of the Court’s order constituting a separate
perpetration of contempt of court. The Minister
is being
accused of attempting to “regulate herself out of a court
order”. There is also a huge debate on the
papers as to
whether the lapsing of the appeal was a mere oversight in the offices
of the State Attorney or not, as Mr De Beer
had by letter alerted the
Minister of this “oversight” without it being addressed
or remedied. This, yet again,
is branded as contemptuous
conduct.
4.9
Contempt of court is a
serious matter. It offends the need to preserve the rule of law
and to protect the moral authority
of the Judiciary. See:
S
v
Mamabolo
(etv and others intervening)
2001 (1) SACR 686
(CC) per Kriegler J at [19]. It is an offence
which carries as its sanction the risk of incarceration for a period
determined
by the court. It is for this reason, in many
instances, analogous to a criminal trial. See:
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) and
Matjabeng
Local Municipality v Eskom holdings Ltd
2018 (1) SA 1
(CC).
4.10
The current application
was launched on 5 January 2021, requiring the Minister to deliver her
answering affidavits by 7 January
2021, that is within less than two
full days.
4.11
The rules and practice
directives applicable to urgent applications whereby the customary
time-periods prescribed for delivery of
notices of intention to
oppose (5 court days) and delivery of answering affidavits (15 court
days) can be curtailed, are both trite
and strict. These have
been explained in various practice directives and in
Republikeinse
Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bp
k
1972 (1) SA 773
(A) at 728A – G and
Luna
Meubel-vervaardigers (Edms) Bpk v Makin and Another (t/a Makin’s
Furniture Manufactures)
1977 (4) SA 135
(W) at 136 C – 137G. In the lastmentioned
matter, the court set out important aspects of urgency which may
allow a
party to depart from the normal time-periods or curtail them:
“
The question
is whether there must be a departure at all from the times prescribed
… practitioners should carefully analyse
the facts of each
case to determine, for purposes of setting the case down for hearing,
whether a greater or lesser degree of relaxation
of the Rules and of
the ordinary practice of the Court is required. The degree of
relaxation should not be more than the
exigency of the case demands.
It must be commensurate therewith
”.
4.12
It almost beggars
belief that anyone can seriously contend that a person accused of an
offence which carries a possible jail term
must be ready to defend
herself or himself within 48 hours (despite any prior knowledge of
all or some of the relevant facts).
Whilst there may be a sense
of urgency experienced by the applicants and the persons they
represent in attacking the regulations
and the consequences brought
about thereby and whilst a great many of the COVID-19 related
litigation have been conducted in urgent
courts, the same cannot be
said for the “contempt relief”. While it may be
true that oftentimes a sentence imposed
in contempt proceedings is
suspended on certain coersive conditions, those possible conditions
cannot by themselves dictate the
urgency of such a matter. The
extremely abbreviated time periods afforded the Minister as an
accused person, are not justified
in this case. The perceived
perception of the applicants that, should they on an urgent basis
have the Minister declared
to be in contempt of court, this would
result in the regulations being amended or uplifted overnight, is not
a justifiable perception.
4.13
Having found that the
truncated time-periods afforded the Minster by the applicants in
respect of the contempt of court relief are
unjustifiably short, then
prayer 1 of the applicant’s notice of motion cannot succeed in
respect of the relief claimed in
prayers 2 - 4 of the said notice.
4.14
When a court reaches a
decision as aforesaid, the customary order is that the matter will be
struck off the urgent court’s
roll. This means that the
applicants, should they seek to pursue the relief, will have to set
the matter down on the ordinary
opposed motion court roll. I
will make an appropriate order in this regard at the conclusion of
this judgment.
[5]
The national state
of disaster relief
5.1
The Minister criticized
the applicants for launching their urgent applications only on 5
January 2021 whilst the extension of the
state of disaster has
already been announced on 11 December 2020 and would expire on 15
January 2021. In my view this criticism
is misplaced: after the
expiry of the first three month period contemplated in
Section 27
of
the DMA, the Minister may (and has) extended the declaration of the
national state of disaster from time to time on a monthly
basis.
Any attack on such an extension by way of a court application will of
necessity be made shortly after the commencement
of any such
extension and less than a month before its expiry. These
consequences would occur in any such application and
would not be of
any applicants’ doing. However, having regard to the
nature of the subject matter of the remainder
of the application,
being the restrictions placed on various aspects of people’s
lives, I find, in similar fashion as the
numerous other judgments,
sufficient urgency to hear the matter.
5.2
As to the merits of the
declaration of the national state of disaster itself, this court has
already, in the initial judgment, and
following on the classification
of the pandemic as a national disaster by Dr Tau in his capacity as
the head of the National Disaster
Management Centre on 15 March 2020,
determined that the subsequent declaration by the Minster was
rational. That determination
still stands and is not a subject
matter in the pending appeals.
5.3
Similar conclusions
have since been reached in the
Fita
-case
(above) and by the Supreme Court of Appeal in the
Esau
-case
(also above). In
One
South Africa Movement and Another v President of the RSA
2020 (5) SA 576
(GP), the applicants therein contended (in the
context of schooling) that the lifting of restrictions and a move
from Alert Level
4 to Alert Level 3, should have been prevented,
inter alia, as being unconstitutional. In the consideration of
that relief,
the full court of this Division without any demur
accepted the declaration of a national disaster as a fact and a valid
exercise
of executive authority.
5.4
At one stage during the
argument of the present matter, the applicants appeared to deny the
existence of the pandemic. Adv
Trengove SC responded that the
rest of the world disagreed. From the statistics quoted at the
inception of this judgment,
there appears to be a lack of a factual
foundation sufficiently supporting this contention of Mr De Beer.
5.5
Mr De Beer’s
argument that there are alternative solutions to the declaration of a
state of national disaster, is not only
res
iudicata
as between
the existing parties, but has already been laid to rest in yet
another full court decision of this court in
Freedom
Front Plus v President of the RSA
[2020] 3 All SA 762
(GP). This court is not only bound by that
decision, but respectfully agrees with the findings made therein.
There
is no evidence upon which to find that the same would not apply
to the maintenance of the declaration and the extension thereof
on a
month to month basis, at last until there are no more “waves”
on the horizon or until the threat posed by the
pandemic has been
contained or eradicated.
5.6
It follows that the
relief claimed in prayer 5 of the applicants’ Notice of Motion
cannot be granted.
5.7
In prayer 6 of the
Notice of Motion, the applicants seek an order that “no further
or subsequent extensions of the National
State of Disaster are
allowed”. In addition to the decisions referred to above
and the conclusion reached in paragraph
5.5, the insurmountable
hurdle which the relief sought in this prayer faces, it that it
requires the court to peer into the future
and accurately predict the
path of the pandemic as well as its lifetime. Clearly this is
impossible. Furthermore,
the exercise of executive
authority in response to the pandemic is “
pre-eminently
polycentric and policy-laden
”
and is a “
multi-faceted
decision
”
(
One South African
Movement
-case
(above) at paragraph [87]). There is, in this context, no basis
upon which a court can prevent the exercise of executive
authority.
A court’s powers can only extend as far as “vetting”
such exercise, once it has occurred.
This relief can therefore
also not be granted.
[6]
The regulations
relief
6.1
The applicants, in
their founding affidavit, allege that the failure to furnish
information or reasons for the Minister’s
decisions, renders
them irrational. They also aver that this failure implies the
absence of a proper constitutional analysis
regarding the
infringement of constitutional rights occasioned by the regulations.
They further voice their frustration in
this regard thus: “
these
latest regulations are tainted with exactly the same confusions as
those considered … before. It simply does
not make any
sense, for example, that one may not attend a place of worship with
friends (church, synagogue, mosque or temple)
but the same friends
may walk around the church (to) go inside a restaurant. More
absurd, a minibus taxi may be filled to
100% capacity with funeral
goers but at the funeral, the very funeral goers who have spent two
hours directly next to each other
may not comfort one another at the
funeral but must keep social distancing between them
”.
A further aspect of the applicants’ “confusion”
related to the closure of beaches. After
having identified
these aspects of perceived irrationality, the applicants proceeded to
ask for a finding that “
all
of the regulations are irrational in their entirety
”.
6.2
The Minister’s
response to the claim for a “blanket” finding of
irrationality is to stress that the correct approach
is to assess
each impugned regulation against its purpose and to determine whether
there was a rational link between that regulation
and the stated
purpose of curbing the spread of COVID-19, so as to save lives.
The Minister further equates the applicant’s
claims in this
regard with the “blanket” declaration of invalidity
contained in this court’s order of 2 June
2020. What
distinguishes that application from the present, however, is that in
that application the Minister had declined
to depose to an
affidavit. The affidavit relied on by the Minister in that
application and deposed to on her behalf, failed
to address the
disputes regarding the decision-making process and the purposes of
the regulations in any meaningful manner.
The regulations
therefore appeared to be irrational and, in some instances clearly
arbitrary. As that issue is currently
the subject-matter of a
pending appeal, it need not be discussed any further, save to note
that in subsequent litigation, such
as in the
Fita-case
(above) the Minister has furnished extensive detail about the
decision-making processes, the composition and working of the
National
Coronavirus Command Council and the stated purposes of the
various regulations and alert levels. Apart from the changed
circumstances
set out at the inception of this judgment, the
evidentiary material available are no longer the same as in the
initial application.
In addition hereto, save for the
identified instances of “confusion”, the regulations have
become more nuanced and
focused than before. The claim for a
“blanket” declaration can therefore not be approached as
before.
6.3
One of the aspects
raised by the applicants, being the closure of beaches, elicited a
strange response from the Minister.
While there can be little
argument against the rationality of closure of congested beaches or
beach areas, particularly at the
height of the festive season over
the December holidays and for those periods only, the closure of long
empty stretches of beaches
or the closure and policing of scarcely
populated areas appear to have no rational connection to the stated
purpose of preventing
the spread of infection. The absurdity or
arbitrariness of such blanket closures were illustrated by the
extreme measures
taken in enforcing compliance. The South
African National Defence Force was deployed in some areas, even
arriving on virtually
deserted beaches with machine guns and rocket
launchers. Stun-grenades were utilized in dispersing solitary
surfers or in
assisting in their arrest.
6.4
To continue with the
Minister’s curious response, apparently the closure of the
beaches was not directed at the happenings
at individual beaches
themselves. The reasoning was as follows:
“
67.7.1
Beachgoers do not usually attend beaches alone, it is often a group
activity.
67.7.2 Some beachgoers may
travel in their own vehicles, whilst most people may have to utilize
public or
communal transport. An increased usage of public or
communal transport for non-essential purposes increases the risk of
infection.
67.7.3 Being at the beach
does or necessarily entail swimming and sunbathing, it also entails
increased
foot-traffic in surrounding areas which again increases the
rate of infections.
67.7.4 Being at the beach by
its nature, is a social activity that increases human interaction,
which in
turn increases the possibility of transmission.
67.7.5 Various popular beach
area had already been declared hotspots.
67.7.6 Not only do people
often gather in large groups at beaches over me holiday season
(making requirements
such as much wearing and social distancing
difficult to enforce) but they also travel from around the country to
do so. These
increased numbers potentially place strain on the
already constrained public health resources in the relevant areas.
67.8
Closing the beaches temporarily thus served not only to reduce the
potential of unsafe
interactions on the beaches themselves but also
to decrease the strain on hospitals in the affected areas
”
.
6.5
If the stated objective
had been to reduce “unsafe interactions”, there can be no
justification for criminalizing safe
or individual use of open
stretches of a beach. There can also not be a rational
connection between the prohibiting of a
family group who live in
close proximity with each other all year from being in the same (or
probably less proximity) on a beach.
No justification or
“rational connection” was displayed for prohibiting local
residents (which already live at the
coast and therefore pose no
increase in travel or additional burden on health resources) from
venturing onto a beach. No
attempt had been made to make any
distinction between populated or popular beach areas and “hotspots”
and any other
stretch of beach.
6.6
I also questioned Adv
Trengove SC why no express mention had been made by the Minister in
her answering affidavit of the balancing
exercise to be performed
between competing constitutional rights as referred to above.
The response was that that was not
the case the Minister had been
called upon to meet, in this application she simply had to deal with
a rationality attack on the
regulations and not a proportionality
attack. Be that as it may, in view of the fact that the “beach
ban” has
since been lifted and the issue having become moot, no
order of this court is needed on an urgent basis in this regard.
6.7
Regarding the other two
“confusions” cited by the applicants referred to in
paragraph 6.1 above, the Minister responded
as follows:
“
They cite two examples: one
cannot attend a place of worship but can attend a restaurant with
church friends; and funeral-goers
may travel in a full taxi but must
distance once they arrive at the funeral.
69.1 The applicants’’
approach-comparing individual regulations to one another-is not the
proper approach
to a rationality assessment.
69.2 The question is whether each
regulation is nationally connected to its purpose. The question
is answered
by comparing the regulation to its purpose-not by
comparing it to another regulation.
69.3 The restrictions
to which the applicants refer plainly have a national basis.
Covid-19 thrives on the physical
connection between people and
contamination of surfaces. The only way to limit the
devastating impact of the virus is to
restrict the congregation of
people, whether at funerals, religious gatherings, sporting or
recreational gatherings …
”
6.8
While the Minister’s response may justify
the imposed restrictions, it certainly does not remove the confusion:
if the stated
object is to limit the spread by limiting social
contact, why then limit it in a place of worship and not in a
restaurant?
6.9
This unanswered anomaly
has, yet again, been overtaken by events as on 1 February 2021, by
way of the “adjusted” Alert
Level 3 regulations referred
to in paragraph 1.9 above, gatherings at faith-based institutions
were again permitted, with certain
restrictions and protocols
prescribed. The issue has therefore again become moot.
6.10
In respect of the other
two examples referred to by the applicants, it is useful to refer to
the following dicta in the
Esau
-case
(above) by the Supreme Court of Appeal (although pronounced after the
date of the applicants’ affidavits): “
[125]
Ultimately, the decision to permit some activities and not permit
others involved what the COGTA Minister described as unavoidable
trade-offs between reducing the infection rate on the one hand, and
the obligations of the State to respect, protect and promote
and
fulfill 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”
and
[132]
At its most basic, the purpose of the limitation of the fundamental
right to freedom of movement, and of trade and profession
was the
protection of the health and lives of the entire populace in the face
of the pandemic that has cost thousands of lives
and had infected
hundreds of thousands of people. In a sense, there has been
something akin to a trade-off: the rights of
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
”.
6.11
Again,
this issue has become moot by way of the “adjusted” Alert
Level 3 regulations of 1 February 2021
as
the “confusion” appear to have been cleared by the
Minister by the removal of the two cited anomalous restrictions.
An order of
this court is therefore no longer required as has been in respect of
the declarations pertaining to the “exercise
regulation”
and the “hot food regulation” previously contained in
regulations 16(2)(f)
and items 1 and 2 of Part E of Table 1 read with
regulation 28(3)
of the Alert Level 4 regulations, respectively,
which have been made in the
Esau
-case.
6.12
In
similar fashion as with the relief claimed against future extensions
of the state of disaster, prayer 9 envisages the barring
of the
Minister from issuing further regulations in future. This
relief loses sight of the ever-changing nature of the threat
posed by
the pandemic and the response thereto. It also loses sight of
the fact that “…
as
soon as regulations no longer served a legitimate purpose, they had
to be repealed or amended as quickly as reasonable
”
(
Esau
-case
at [98]). A blanket barring or restriction of the Minister’s
powers to promulgate under the DMA, may therefore
limit
her ability to adjust or ameliorate the extent of limitations of
rights brought about by existing regulations. For all
these
reasons, this relief can also not be granted.
[7]
The mask relief
7.1
The
applicants object to the wearing of masks as prescribed by the
regulations. They aver that it is their right to choose
to wear
a mask or not. They further rely on a public survey conducted
by them on social media groups over three days which
indicated that
98,6% of the participants were against the wearing of masks and did
so only because of the criminal sanction attached
to non-compliance.
The applicants further referred to research documentation attached to
their previous application in terms
of
section 18
(3) of the
Superior
Courts Act whereby
they had sought execution of the orders which are
currently the subject of the pending appeal in the Supreme Court of
Appeal (the
section 18
(3) application had been refused on 23 October
2020). They lastly aver that the requirement for the wearing of
masks had
not been “thought through” and offended against
the October 2005 Unesco Universal Declaration on Bioethics and Human
Rights.
7.2
Without
have been called upon to expressly decide this issue, the Supreme
Court of Appeal has in the
Esau
-case
(above) at [126] accepted measures such as the wearing of masks,
social distancing and the observance of health protocols,
such as
hand-sanitizing, as the minimum or basic measures to combat the
spread of the coronavirus whereafter the court proceeded
to concern
itself with the imposition of regulations in addition to those
whereby these basic measures have been introduced.
7.3
In
oral argument, Mr De Beer also questioned why South Africa follows
the stance of the World Health Organisation (WHO) on the wearing
of
masks.
7.4
Firstly,
without sufficient evidence of the statistical norms and standards
regarding representivity and methodology applied, the
private social
media survey conducted by the applicants cannot be accepted as
reliable evidence on which a court should rely for
deciding an issue
as important and far-reaching as the efficacy of a possible measure
to prevent the spread of the disease.
7.5
Secondly,
the Unesco declaration, not only pre-dates the current pandemic, but
does not appear to have contemplated the current
threat that the
world (and signatories to the declaration) faces, or, at least, not
the extent thereof. Insofar as the applicants
(and the amicus
curiae) relied on selected pronouncements made on the measures
imposed in certain foreign jurisdictions, those
are firstly
country-specific, both with regard to the applicable law and the
specific regulations and secondly, are not representative.
I
find that little weight can be attached thereto.
At
the conclusion of the urgent court roll for the week during which
this application had been heard, a well-known journalist, in
summing
up instances like these pointed out that it is not a uniquely South
African phenomenon. Under the heading “Endlessly
bloviating while people suffer” he wrote: “
We
are not the only country battling this monster [Covid-19] and
everywhere the virus makes fools of politicians and scientists
as
governments lock down and ease up and lock down again in a
never-ending cycle of panic, negligence and incompetence
”
(
The
Sunday Times
,
17 January 2021 page 16).
7.6
Thirdly,
the WHO had repeatedly given guidance to a number countries on
presentative measures to combat the spread of the virus.
These
include the wearing of masks. The Minister also referred to a
recent WHO guidance document on mask use published on
1 December 2020
which relies on considerable underlying scientific evidence for its
stance in favour of wearing masks.
7.7
Fourthly,
the “right to choose” has not been formulated by the
applicants with reference to a specific right in the
Bill of Rights.
The applicants’ arguments also do not address the right of the
remainder of the mask-wearing public
to an environment which is not
harmful to their health or well-being as enshrined in Section 24(a)
of the Constitution. It
is all very well for the applicants to
want to choose not to wear masks, but they do not have the right to
exercise their choice
if they thereby increase the risk of the spread
of the droplet-borne virus to others, particularly those who choose
to take steps
to prevent such spread. One needs also only to
contemplate the increased risk imposed by this choice on health-care
workers
who may have to treat or come into contact with non-mask
wears, to appreciate that this is not a right which a court should
sanction.
The exercise of such right clearly has the potential to
harm others. I agree with the Minister’s position that “
wearing
a mask is not about one’s personal choice or one’s own
appetite for risk, it is about protecting others
”.
7.8
I
therefore find no basis to declare the compulsory wearing of masks
unconstitutional or invalid.
[8]
The places of
worship relief
This issue has already been dealt with above in
paragraph 6.9 above.
[9]
The further relief
9.1
In the remainder of the
applicant’s notice of motion they claim:
9.1.1
In prayer 12 that “any
further” regulations should be declared unconstitutional and
invalid. Insofar as the claim
for this relief may be based on
an erroneous perception that this court has, by the order of 2 June
2020, declared it as a general
proposition, that the promulgation of
regulations in terms of the DMA by the Minister, is unconstitutional,
it is misplaced, as
already explained earlier. In each
promulgation of regulations, the rationality and proportionality of
individual regulations
would have to be considered. This must
also be done against the factual backdrop then in existence.
It is impossible
to predict these permutations and this relief aimed
at future circumstances and whatever regulations may then be in force
is, at
best, premature and cannot be granted in this application.
9.1.2
In prayer 13 an order
is claimed declaring that any application for leave to appeal or
appeal process will not automatically suspend
the execution and
operation of any order granted. This relief is equally
incompetent: Section 18(1) of the Superior
Court Act prescribes
that, upon the lodging of appeal processes, execution of the order
appealed against is suspended. Section
18 (3) provides for the
mechanisms and considerations to apply should a party wish to have an
order implemented despite pending
appeal processes. The claim
for the relief sought in this prayer amounts to relief similar to
that envisaged in said section
18 (3) but without having addressed
the issues prescribed in that section. Furthermore, the
jurisdictional requirement, namely
an existing appeal process, has
not yet been initiated. Again, this relief is, at best,
premature.
9.1.3
In prayer 14 a
direction is sought that this court’s order be published in the
Government Gazette. I find no need for
this extraordinary
relief. Court orders are generally only published in the
Government Gazette when required in terms of
statutory provisions,
such as in insolvency and status matters, but not as a general matter
of course.
9.1.4
In prayer 15 the
immediate arrest of the Minister is sought upon contravention of
prayers 9, 12 and 14. Not only is this relief
moot in
circumstances where no relief is to be ordered in terms of these
prayers, but non-compliance with a court order in a civil
matter
generally results in contempt of court proceedings, not in summary
arrest. There is no legal basis for an order in
the terms
claimed.
9.1.5
In prayer 16, costs are
claimed on punitive scale. I shall deal with this aspect
separately later.
[10]
The amicus curiae
10.1
In similar fashion as
in the previous applications and, having regard to the nature of the
subject matter of these applications,
the amicus curiae had been
allowed to address the court.
10.2
The amicus had filed
written heads of agreement. These were, however, not strictly
speaking, argument but rather an attempted
introduction of evidence
by way of argument. Statistical data relating to natural and
non-natural causes of death released
by Stats SA were referred to,
supported by an example of a certain named individual.
10.3
What I gleaned from the
amicus’ very spirited and emotive argument was that it
highlighted the burden and exposure of the
poorest of our society and
how the pandemic and the restrictions imposed have in a great many
instances, exacerbated their plight.
This argument is further
illustrated by a list of general complaints, identified as “key
challenges” by the National
Planning Commission in a document
dated as long ago as 2012 to which the amicus has referred as
follows:
“
1.# Too few
people work;
2.# The
quality of school education for black people is poor;
3.#
Infrastructure is poorly located, inadequate and under-
Maintained;
4.# Spatial divides hobble
inclusive development;
5.# The economy is
unsustainably resource intensive;
6.# The public health system
cannot meet demand or sustain quality;
7.# Public services are
uneven and often of poor quality;
8.# Corruption levels are
high; and
9.# South
Africa remains a divided country
”
.
10.4
The amicus made the
point that, despite the passage of time since the Planning
Commission’s report, there challenges “have
become the
norm”.
10.5
The submissions of the
amicus, although they may voice the plight of those in the grip of
the pandemic and under the burden of the
regulations, despite
benefitting from the preventative health benefits stemming therefrom,
do not advance the legal arguments much
further save to highlight the
practicalities associated with the evaluation of the issues of
rational connectivity and, in particular,
proportionality.
[11]
Costs
11.1
The
general rule is that cost should follow the event and that the
successful party should be entitled to recover its costs from
the
unsuccessful party or parties.
11.2
The
further rule of general application is that formulated in the
decision in
Biowatch
Trust v Registrar Genetic Resources and Others
2009 (6) SA 232
(CC) (the Biowatch-principle) namely that in
constitutional litigation, unsuccessful litigants in proceedings
against the State
generally ought not to be ordered to pay the
State’s costs.
11.3
The
third and overarching rule is that the award of costs is
intrinsically linked to the exercise of the court’s discretion
and is a matter of ensuring fairness to both sides. See:
Erasmus, Superior
Court Practice
at
D5-6 and the cases listed in footnote 1.
11.4
In
respect of the contempt relief, although the applicants have brought
their claim for this relief on an impermissibly short notice,
there
was already the preceding default by the Minister in the lapsing of a
part of the appeal. This lapse prompted the claim
for the
relief. Both sets of parties were therefore at fault.
11.5
Having
regard to the remainder of the relief, although the applicants were
unsuccessful, they were in part either acting in person
or indigent.
Their applications voice frustrations experienced by common folk, lay
persons and those “confused”
by a multitude of
restrictions which are both novel and invasive. In part, at
least, they also sought to rely on or invoke
constitutional issues.
In view hereof, I am not prepared to find that their application was
an abuse of process as argued
on behalf of the Minister.
11.6
In
my view and, in the exercise of my discretion, there should be no
order as to costs, resulting in each party bearing its own
costs.
[12]
Order:
1.
The
claims for the relief sought in prayers 2-4 of the Notice of Motion
(the contempt relief) are struck from the urgent roll.
2.
The
remainder of the relief claimed in other prayers are refused.
3.
No
order is made as to costs.
N
DAVIS
Judge of the High Court
Gauteng Division, Pretoria
Date of
Hearing: 12 January 2021
Judgment
delivered: 19 February 2021
APPEARANCES:
For
the First Applicant:
In person
For
the Second Applicant:
Mr De Beer, with leave of the court
For
the Amicus Curiae:
Mr B P Mothopeng
For
the Respondent:
Adv W Trengove SC together with
Adv A Hassim and Adv
I S Cloete
Attorney
for Respondent
:
The State
Attorney, Pretoria