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[2021] ZAGPPHC 549
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De Beer and Another v Minister of Cooperative Governance and Traditional Affairs (21542/2020) [2021] ZAGPPHC 549 (19 February 2021)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 21542/2020
NOT REPORTABLE
OF INTEREST TO OTHER
JUDGES
REVISED
19 FEBRUARY 2021
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
JUDGMENT
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