Minister of Cooperative Governance and Traditional Affairs v De Beer and Another (538/2020) [2021] ZASCA 95; [2021] 3 All SA 723 (SCA) (1 July 2021)

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[2021] ZASCA 95
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Minister of Cooperative Governance and Traditional Affairs v De Beer and Another (538/2020) [2021] ZASCA 95; [2021] 3 All SA 723 (SCA) (1 July 2021)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 538/2020
In
the matter between:
MINISTER
OF CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL AFFAIRS

APPELLANT
and
REYNO
DAWID DE BEER
FIRST

RESPONDENT
LIBERTY
FIGHTERS NETWORK

SECOND

RESPONDENT
COUNCIL
FOR THE ADVANCEMENT OF
THE
SOUTH AFRICAN CONSTITUTION
FIRST

AMICUS CURIAE
HOLA
BON RENAISSANCE FOUNDATION

SECOND AMICUS CURIAE
Neutral citation:
Minister of Cooperative Governance and Traditional Affairs v
De Beer and Another
(Case no 538/2020)
[2021] ZASCA 95
(1 July
2021)
Coram:
NAVSA, PONNAN AND MBATHA JJA AND ROGERS AND UNTERHALTER
AJJA
Heard:
26
May 2021
Delivered:
This judgment was handed down electronically by circulation to the
parties’
legal representatives by email. It has been published
on the Supreme Court of Appeal website and released to SAFLII. The
date and
time for hand-down is deemed to be 09h45 on 1 July 2021.
Summary:
Regulations promulgated under
s 27(2)
of the
Disaster Management
Act 57 of 2002
– regulations challenged as unconstitutional and
irrational – virtual hearing challenged as contrary to open
justice
– need to plead a constitutional challenge with
specificity and clarity – rationality, arbitrariness and
equality challenges
distinguished – rationality review must be
circumscribed – high court order vague and unenforceable
–unfounded
and scandalous attacks on courts unacceptable.
ORDER
On
appeal from:
Gauteng Division of the High Court, Pretoria (Davis
J sitting as court of first instance):
1
The appeal is upheld.
2
The high court’s orders are set aside and replaced with the
following order:
‘
The
application is dismissed.’
JUDGMENT
THE
COURT
:
Navsa, Ponnan and Mbatha JJA
and Rogers and Unterhalter AJJA
Background
[1]
This is an appeal against an order of the Gauteng Division of the
High
Court, Pretoria (Davis J), declaring almost all of the
regulations that the appellant, the Minister of Cooperative
Governance and
Traditional Affairs (the Minister), promulgated under
s 27(2) of the
Disaster Management
Act 57 of 2002 (the Act), unconstitutional and
invalid. The first respondent is Mr Dawid de Beer, who is a member
and president
of the second respondent, Liberty Fighters Network (the
LFN), a non-governmental organisation, which acts primarily as a
tenants’
association. Mr de Beer and the LFN engaged in the
litigation culminating in the present appeal in their own interests
as well
as in the interests of members of the LFN and, purportedly,
in the public interest.
The Hola Bon Renaissance
Foundation (HBF) participated as an amicus curiae in the court below.
The Council for the Advancement of the South African
Constitution (CASAC) was admitted to this appeal as amicus curiae.
[2]
This case, as we will show, is an object lesson as to how a
constitutional
challenge to promulgated regulations should not be
brought. It also serves to demonstrate that there should be a
disciplined and
cautious curial response, lest diffuse,
rhetoric-laden, emotive and jurisprudentially unfocused litigation is
encouraged. All the
more so in this case, as it raises issues of
national and international importance. Before exploring the
background to the appeal
in detail, it is necessary to set out the
material parts of the order sought by the respondents in their notice
of motion:
‘
3.
An order that the national state of disaster proclaimed by the
[Minister] in GN No. 313 GG No.
43096 dated 15 March 2020 in terms of
Section 27(1) of the Disaster Management Act, 2002 (Act No. 57 of
2002) - hereafter referred
to as the “DMA” - is declared
as unconstitutional, unlawful and invalid; and
4.
That
all
the DMA Regulations
promulgated by the [Minister] in terms of Section 27(2) of the DMA
since 18 March 2020, be declared as unconstitutional,
unlawful and
invalid; and
5.
In the alternative to paragraphs 3 and
4
supra
, ordering that all gatherings as defined in the
Regulation of Gatherings Act, 1993 (Act No. 205 of 1993), are lawful
and ordering
that the processes as set out in that Act, if complied
with, would render any gathering lawful.
6.
In the alternative to paragraphs 3 and
4, and in addition to paragraph 5
supra
, that all businesses,
services and shops be allowed to operate further, having regard to
the reasonable  precautionary measures
of utilising masks,
gloves and hand sanitizers, until the Respondent has consulted with
the Essential Services Committee (ESC)
as intended in Section 70 of
the Labour Relations Act, 1995 (Act No. 66 of 1995) and the ESC has
legally declared any one or more
service as an essential service to
be included in any valid DMA Regulations further; and/or
7.
In the alternative to paragraphs 3 and 4 and in addition to
paragraphs 4, 5 and 6
supra
, all other gatherings be allowed,
observing the reasonable precautionary measures of utilising masks,
gloves and hand sanitisers.’
(Our emphasis.)
[3]
For reasons that will become apparent, and
for a better appreciation of the
issues, it is necessary to have
regard to the totality of the order made by the high court, which is
the subject of the present
appeal:
‘
1.
The regulations promulgated by the [Minister] in terms of section
27(2) of the [Act] are declared
unconstitutional and invalid.
2.
The declaration of invalidity is suspended until such time as the
Minister, after consultation
with the relevant cabinet minister/s,
review, amend and republish the regulations mentioned above (save for
regulations 36, 38,
39(2)(d) and (e) and 41 of the regulations
promulgated in respect of Alert Level 3) with due consideration to
the limitation each
regulation has on the rights guaranteed in the
Bill of Rights contained in the Constitution.
3.
The Minister is [d]irected to comply with the process ordered in
paragraph 2 above within
14 ([f]ourteen) business days from date of
this order, or such longer time as this court may, on good grounds
shown, allow and
to report such compliance to this court.
4.
During the period of suspension, the regulations published in
Government Gazette No 43364
of 28 May 2020 as Chapter 4 of the
regulations designated as: “Alert Level 3”, shall apply.
5.
The regulations pertaining to the prohibition on the sale of tobacco
and related products
is excluded from this order and is postponed
sine die, pending the finalisation of case no 21688/2020 in this
court.’
The
Minister was, additionally, ordered to pay the respondents’
costs.
[4]
The present litigation, as presaged above, has its genesis in
regulations
promulgated by the Minister under the Act. The
regulations challenged in the notice of motion were all the
regulations promulgated
by the Minister under s 27(2) of the Act
since 18 March 2020. The regulations so promulgated at the time the
application was launched
were those promulgated on 29 April 2020,
which repealed the regulations of 18 March 2020 and,
inter
alia
, regulated Alert
Level 4 (the Level 4 regulations). On the day the case was argued in
the high court, 28 May 2020, the Level 4
regulations were amended to
cater for a new Alert Level 3 (the Level 3 regulations), though those
regulations were not yet to hand
at the time of argument. The
regulations of April and May 2020 have in turn been amended or
superseded by others. The Act, as noted
by the high court, provides
for an integrated and co-ordinated disaster management policy that
focuses on preventing or reducing
the risk of disasters and/or
mitigating their severity. It also caters for emergency preparedness,
rapid and effective responses
to disasters and post-disaster
recovery. It accordingly provides for the establishment of national,
provincial and municipal disaster
management centres.
[1]
[5]
The regulations referred to in the preceding paragraph were published
in response
to the threat to national health and safety presented by
the global outbreak and transmission of a novel contagious virus,
which
can lead to the disease known as COVID-19, and is the biggest
health threat faced by the world in the past century. It has since

resulted in millions of deaths globally.
[6]
The respondents launched proceedings in the high court in May 2020,
in response to
the regulations and amendments thereto, published by
the Minister since March 2020. The bases of the respondents’
challenge,
set out in their founding affidavit, described as a
‘Summary of raised constitutional and other issues’, are
as follows:
(i)
The Minister, acting in terms of s 27(2) of the Act, was exercising
delegated power.
[2]
Those powers unreasonably ‘[violate]
almost
every section
contained in the Bill of Rights in the Constitution, but specifically
regulating matters which are within the exclusive legislative

competence of the National or Provincial Legislatures as intended in
Schedule 5 of the Constitution’, such as, amongst others,
the
control of businesses, persons, liquor establishments, cemeteries,
funeral parlours and crematoria, beaches and amusement facilities,

licensing and control of undertakings that sell food to the public;
(ii)
The regulations, ‘
by far
, exceed the purpose and
objective of s 27(2) of the Act’;
(iii)
The regulations failed to comply with s 146(6) of the Constitution,
read with s 59 of the Act, which provides
that a law made by an Act
of Parliament or a provincial Act can only prevail if that law has
been passed by the National Council
of Provinces (NCOP);
(iv)
The National State of Disaster, ‘known generally as the
Lockdown’, was ‘irrational and
based on incorrect advice
and/or reaction to unconfirmed and/or otherwise unreliable
international and national medical and health
results; not taking our
country’s unique socio-economic conditions into consideration’;
(v)
The prohibition of gatherings provided for in terms of the Level 4
regulations is invalid, as it is
in direct violation of the
‘absolute-limitation’ contained in s 14(1) of the
Regulation of Gatherings Act 205 of 1993
(the Gatherings Act) –
irrespective of the limitation of rights set out in s 36 of the
Constitution. The result of which,
it is argued, is that any protest
against government action in relation to the National State of
Disaster is unlawfully prohibited,
and the regulations thus conflict
with legislation that permits the gathering of people;
(vi)
The utilisation of the Act is only authorised in the event that
existing legislation (such as the International
Health Regulations
Act 28 of 1974 (IHRA), which regulates a range of infectious
diseases) or other ‘contingency arrangements’
do not
cater adequately for dealing with a threatening disaster or there are
special circumstances warranting the declaration of
a state of
disaster;
(vii)
The regulations are unlawful in that s 37 of the Constitution only
allows a restriction of the Bill of Rights
when there is a State of
Emergency in the country, which is currently not the case;
[3]
(viii)
The regulations are irrational in that they contain a reference to
essential services when the determination of essential
services falls
within the exclusive competence of the Essential Services Committee
(ESC) established in terms of s 70 of the Labour
Relations Act 66 of
1995 (LRA), and the LRA provides that, in the case of a conflict with
another law, the LRA shall prevail;
(ix)
The regulations permitted mineworkers to operate as an essential
service when it has not been declared as
such by the ESC, thus being
‘hypocritical, unreasonable and irrational as this decision has
put mineworkers [at risk in a
high-risk environment], as recognised
by the National Institute for Communicable Diseases (NICD) of South
Africa’;
(x)
The regulations have ‘violated
almost all clauses in the
Bill of Rights
of
most
of our citizens’ and the
Minister ‘has especially humiliated and trampled upon the
dignity of mostly the vulnerable
low-to-medium income earners of our
country and our foreign guests, who rely on informal trade, tips,
commissions, day wages, ad
hoc labour, and begging to survive’.
(Our emphasis.)
[7]
Following immediately thereafter, under the heading ‘Essential
Facts’
in the founding affidavit, ostensibly to indicate that
these facts are in substantiation of its challenge, the LFN stated
that
it had been inundated with complaints from its members in
relation to the financial hardships they have had to endure,
including
the inability to pay rentals, resulting in landlords
throughout the country resorting to illegal measures, such as cutting
off
electricity and water supplies, locking tenants out of their
homes and evicting them. The LFN claimed that since the lockdown had

started, they have dealt with 2000 such complaints and that the
failure by the Minister to have regard to such hardships proves
the
irrationality of the decision to enact the regulations.
[8]
The next part
of the founding affidavit, under the same heading, has
to be quoted,
since we are uncertain as to what precisely it means or was intended
to convey.                  Of

particular concern is whether, on its own or with other parts of the
founding affidavit, it provides an intelligible or cognisable
basis
of challenge to the regulations. Paragraph 4.2 of the founding
affidavit reads as follows:
‘
Notwithstanding
that the Constitutional Court already ruled that inter alia the
disconnection of electricity and water constitutes
an eviction, and
the Old and New Regulations making evictions without Court Orders
also illegal and criminal, the law is increasingly
disregarded in
this context. In addition, LFN and I myself have experienced a
massive lack of assistance and compassion from the
side of the Police
to come to the assistance of all the affected people leaving many of
them without the use of electricity and
water or evicted. It appears
to us that the Police are primarily occupied with the duties imposed
upon them under these DMA Regulations
and that only very limited
contingency provisions are in place to accommodate for other duties.
These artificially created shortcomings
we view as a further sign of
the [Minister] having acted irrationally by imposing the
[regulations]. Kindly find attached as Annexure
“B” only
a tiny number of these complaints.’
[9]
Further, under ‘Essential
Facts’, the LFN complained that it and like organisations

received no funding or assistance during this time. The LFN asserted
that its social media platforms, which advise tenants of their

rights, were overwhelmed and that it was no longer able to cover its
expenses in attempting to respond to affected persons. Mr
de Beer
complained that his salary could not be paid and that he was unable
to buy sufficient food to feed his family.
[10]
Mr de Beer also brought to the court’s attention that the LFN
represented a
group of 90 out of a total of 347 employees of hair and
beauty salons known as ‘Bob Cuts’, which refused to pay
salaries
for March 2020. This employer and others, according to the
LFN, had failed to submit Unemployment Insurance Fund (UIF)
contributions,
leaving workers without an income, whilst complaints
to the Commission for Conciliation, Mediation and Arbitration (CCMA)
and Department
of Labour could not be processed, as they were not
operational during lockdown and it could take months before they are
fully functional.
[11]
A further ‘essential fact’ asserted was that parents were
expected to home-school
their children, using data for which they
have no money, over and above the fact that they have no money for
food. The LFN considered
it lamentable that people were expected by
Government to purchase data to keep up with legislative changes in
the lockdown regime.
Mr de Beer complained that the R350 per month
promised as COVID-19 relief funding by the Government was difficult
to access.
[12]
As part of this litany of complaints under the rubric of essential
facts, the LFN went on to
accuse the Minister of mismanagement in the
distribution of food parcels, and stated that the ruling party’s
branches had
hijacked the distribution of essential aid.
In
support of this
latter accusation, Mr de Beer attached an article
that appeared in the publication,
Daily Maverick
. The LFN was
adamant that its members were, as a result of the regulations,
treated unfairly and discriminated against. Mr de Beer
complained
that his personal circumstances were such that his two daughters
were, as a result of the regulations, losing out on
proper schooling.
In addition, their school’s governing body had put him on terms
to pay outstanding school fees.
[13]
Still under the heading ‘Essential Facts’, the LFN,
albeit repeating,
in essence, some of the earlier allegations,
commented that the ‘property industry’ has been ‘hit
hard’,
and that there was a war between landlords and tenants,
and that tenants were compelled to secure microloans and sacrifice
some
of their belongings in order to survive financially. The
following part of Mr de Beer’s narrative bears repeating:
‘
Based
on the aforegoing and as
an
expert
in my field I
am highly concerned that if the Lockdown does not urgently come to an
end, it is inevitable that the already tight
tensions between tenants
and landlords will spark into a [fully-fledged] conflict. Even the
already volatile land distribution
issue in our country could become
entangled in the current crisis. There is a potential loss of lives,
injury to people and other
damages that could by far outnumber all
negative effects the
COVID-19 disease is claimed to have
.’
(Our emphasis.)
That
concluded the narration by Mr de Beer and the LFN of essential facts
underlying the legal challenge.
[14]
Proceeding from the ‘essential facts’, the LFN then
contended that it
was clear from the long title
[4]
of the Act that it was not intended to make severe inroads into
personal freedoms. Mr de Beer and the LFN complained that the
regulations were overbroad, but without providing a proper factual
foundation for that conclusion, and without specifying why that
was
so. What follows is a six-page invective, in generalised and
dispersed terms, against the Government’s COVID-19 response.
It
defies a concise summary. In this regard, it is important to have
regard to the following relevant parts of the founding affidavit:
‘
6.2
The virus leading to the COVID-19 disease, SARS-Cov-2,
was only recognised as a newly
identified
novel virus by the International Committee on Taxonomy of Viruses
(ICTV) when it was formally named on/or around 11 February
2020 (3
months ago) and subsequently the World Health Organisation (WHO)
named the associated disease caused by this virus as COVID-19
on that
same day. I attach and refer to the official announcement of this by
WHO on their official website as Annexure “F”.
6.3
The problem created by this new naming of the
virus and disease, confirming irrationality in the decision
to
declare a National State of Disaster due to COVID-19, is the fact
that the WHO did not have a separate ICD-10 coding for this
new
disease at that stage and announced during March 2020 that member
states like South Africa, should use the ICD-10 codes for
Influenza
and Pneumonia (J12 in particular) for the interim. Find attached the
published notices and explanatory notes as Annexures
“G”
to “J”.
6.4
On 20 April 2020 (some three weeks ago), the WHO
published a guide on how COVID-19 death cases should be
reported and
proposed that COVID-19 should be recorded on the medical certificate
of primary cause of death for ALL deceased regardless
of whether the
disease indeed caused, or was simply assumed to have caused, or just
contributed to the death
. This implies
inter alia
that
even if a person would have the SARS-Cov-2 but it did not turn into
COVID-19 and in fact died of another cause like heart
failure or
cancer, WHO advised that such a death should also be reported as a
COVID-19 case. This document by WHO is attached as
Annexure “K”.
6.5
As per the latest available “
Mortality
and causes of death in South Africa: Findings from death notification
2017”
, which was embargoed by Statistics SA (Stats SA) for
release until 26 March 2020, it is interesting to note that while
COVID-19
was not yet known, that the ICD coding and specifically code
J12, for Influenza and Pneumonia (which were also shared for a while

by COVID-19 until 1 April 2020), resulted in underlying, immediate or
contributed to the death of 42385 people during 2017 implying
that on
an average 3532 people died every month in South Africa due to the
underlying, immediate or contributing of Influenza and
Pneumonia of
which statistics from previous years were similar. Extracts of this
Stats SA statistical report of some relevant parts
are attached as
Annexure “L” where the full report will be provided to
the Court at the hearing.
6.6
Without the availability of the full historic
number of deaths for the ICD-10 codes J12 to J18 in comparison
to the
so called reported COVID-19 cases, it is simply not possible to have
made an informed decision and any decision not taking
into
consideration the already known diseases which normally are reported
under those same ICD-10 codes, the decision of the COGTA
Minister to
have declared a National State of Disaster was therefore respectfully
irrational and timed incorrectly.
6.7
Taking into further consideration that a recently
published research report by the Center for Disease Control
and
Prevention (CDC), amongst others, established that the SARS-Cov-2 and
Influenza A viruses can co-infect the same patient which
is also
possible within the science of virology where trillions of viruses
and other microbes are already living inside every human
body. It is
interesting to note that in practice few people were historically
tested for the Influenza viruses. Now, everyone is
basically only
tested for the SARS-Cov-2 virus and not the Influenza viruses which
seem to have miraculously disappeared with the
recent discovery of
the SARS-Cov-2 virus. We can see no indication of how many of the
cases are simply Influenza and how many are
COVID-19. Logically, one
will only establish the SARS-Cov-2 virus if the tests only target
that virus and not the Influenza viruses.
Extract of this report is
attached as Annexure “M”.
6.8
It needs to be mentioned that WHO reported on 11
March 2019 (one year ago) that the Influenza viruses are
a threat to
the world health and result in approximately 1 billion cases
annually; 5 billion among them being severe and causing
650,000
deaths annually. Had this been the criteria for a Lockdown
requirement, we would need a Lockdown every year for Influenza
alone,
pre SARS CoV-2. Yet, this was never enacted even though the
statistics for Influenza appear much worse than the COVID-19.

Further: Merely having an infection of the SARS-Cov-2 virus without
leading to COVID-19 is also very possible. Find attached the
WHO
report as Annexure “N”.
6.9
Only a few days after the Lockdown started, namely
on 2 April 2020, the NICD in South Africa which is responsible
for
monitoring disease outbreaks, reported in its Influenza
recommendations for the diagnosis, prevention, management and public

health response, that it is estimated that approximately 11,800
seasonal influenza-associated deaths occur annually (which is based

on 2013 results and not the latest figures available, namely 18,837
only for underlying deaths – with 42,385 combined cases).
In
addition, an estimated 47,000 episodes of influenza-associated severe
acute respiratory illnesses occur annually of which 22,481
(at an
average of 1,873 per month) result in hospitalization. The aforegoing
compares to the current total of just 411 reported
COVID-19 cases
which deserved to have been hospitalized. I refer to the NICD report
as Annexure “O” as well as the
official report of the
Health Minister on 4 May 2020 attached as Annexure “P”.
6.10
Notwithstanding various reports relating to the allegation that
SARS-Cov-2 was a newly created virus, it is unfounded
and baseless to
assume that this new virus was not already in existence for many
Influenza seasons over many years and therefore
might already have
been included in ICD-10 code reporting under respiratory illnesses
under the J grouping. In history, the Influenza
virus which was
responsible for the 1918 Spanish Flu pandemic was not known at that
stage and only discovered during 1930’s.
The CoGTA Minister is
relying on unconfirmed and incomplete data to try and justify the
Lockdown. In this context I attach an article
by the Medscape Online
Magazine as Annexure “Q”.
6.11
It is important to note that the NICD has declared that for the 2020
Influenza Season which we have entered now
– that,
notwithstanding the computed 3,532 deaths per month due to Influenza,
that they do not propose any public health
response to that threat.
This compares to the current COVID-19 combined underlying immediate
or contributing 138 deaths since 26
March 2020, i.e. less than 70
deaths per month. The suspicion that COVID-19 as a newly discovered
disease with almost identical
symptoms as Flu and clearly less
devastating results compared to actual WHO statistics relating to
Influenza and Pneumonia (ICD-10
Code J) could evolve in the mass
extermination of the people is simply irrational and based on
absolutely no scientific proof.
Therefore, the continuation of the
Lockdown for that reason is, respectfully, unwarranted and
irrational.’
[15]
There are major problems with these passages. First, Mr de Beer is
not a qualified
virologist, pathologist, immunologist, medical
doctor, laboratory analyst, or indeed any kind of scientist. He does
not attempt
to qualify himself as an expert so as to analyse the many
reports to which he refers.
Mr de Beer does not
claim any professional qualification.
It will be recalled that
the only expertise claimed by Mr de Beer is in relation to the
conflict between landlords and tenants.
Further,
none of the reports
referenced are confirmed by anyone
qualified to do so.
Thus, their
authenticity
and reliability is not proven.
[16]
The underlying theme of the founding affidavit is one of COVID-19
denialism.       In
para 6.14 Mr de
Beer makes
the following
statement:
‘
Knowing
that the symptoms of COVID-19 and the Flu are similar I would like to
remain in control of my own health and body and wish
to rely on my
natural immune system to again protect me just like it has been doing
for the past 43 years, saving me from trillions
of invasive viruses
and microbes. I believe further that it is the constitutional right
of both our members and myself to choose
whether we wish Government
to make decisions on our behalf about our own bodies and health’.
Mr
de Beer’s real complaint is that a National State of Disaster
is unconstitutional, and he has the right to rely on his
immune
system, without Government interference.
[17]
Mr de Beer and the LFN also contended that South Africa should have
followed the example of Sweden,
which, rather than engage in a
lockdown as was done in our country, concentrated on protecting the
elderly and left ‘nature
to run its course by way of natural
immunization’. The unconfirmed report relied upon in this
regard provides no basis as
to how the experience of Sweden may be
compared to South Africa.
[18]
In relation to the mandatory wearing of masks, the following is said:
‘
I
have also noted, that in a country like South Africa where the crime
rate is one of the highest in the world that the requirement
that
everyone must wear masks of sorts, covering both mouth and nose
(which in itself has not been proven to prevent people from
becoming
infected or to prevent infection of others) might become a further
crisis where criminals will walk our streets with their
faces covered
and the possibility of identifying them would be reduced to almost
zero.’
This
assertion is to be compared with the alternative relief sought by Mr
de Beer and the LFN in paras 6 and 7 of their notice of
motion, set
out in para 2 above, in which they accept masks as a precautionary
measure.
[19]
We now turn to deal with the basis of opposition on behalf of the
Minister. Reliance was placed
on the provisions of s 27(1) of the
Act, which permits the Minister to declare a national state of
disaster, if existing legislation
and contingency arrangements do not
adequately provide for the Executive to deal with a disaster, or
where special circumstances
warrant such a declaration. The
declaration of a national state of disaster, it was pointed out,
permitted the promulgation of
regulations concerning matters
contemplated in s 27(2)
(a)
to
(o)
.
[20]
The deponent on behalf of the Minister, the Director-General of the
Department of
Cooperative Governance (the Director-General),
proceeded to set out ‘Notorious Facts about COVID-19’,
based, in large
part, on information sourced from UNICEF and the
World Health Organisation.
[5]
The following are the relevant parts of the answering affidavit:
‘
26.
The COVID-19 is a respiratory disease caused by a novel strain of the
coronavirus. Its symptoms include, amongst
others, fever, coughing
and shortness of breath. It has virulent effects if left untreated,
as it can cause pneumonia or breathing
difficulties in fatal cases.
In some cases, it can be asymptomatic (showing no signs of fever,
coughing or shortness of breath)
in the early days of infection, and
thus, a person may be infected but not show any physical signs of
infection, resulting in the
spread of the virus to other people
without knowing.
27.
COVID-19 is easily transmissible from people who are asymptomatic,
pre-symptomatic or mildly symptomatic.
It can be transmitted from one
person to the other through fluids droplets excreted from the mouth,
nose or eyes of an infected
person. As it is an airborne disease, it
can [stay] in the air and on a surface for hours or days where the
fluids droplets of
the infected person have been transferred through
touch, coughing or sneezing. This disease posed a unique challenge in
that the
carrier of this disease may not be aware that he or she is
infected.
28.
Due to its virulent nature, it has the potential
to infect a large number of people in a short space of time
and
therefore, its rate of infection is exponential. Currently, there is
no known and approved vaccine available, efficacious treatment
or
cure.
29.
COVID-19 affects all regardless of race, age,
religion, qualification, background and standing in the society.
The
elderly and people with pre-existing health conditions are the most
vulnerable.
30.
On the 30th of January 2020, the [WHO] declared
the outbreak of the disease a public health emergency of

international concern. On 11th of March 2020, the WHO declared the
COVID-19 a pandemic.
31.
As the infection rates rose exponentially,
countries around the world saw their healthcare systems overwhelmed

by infected people overnight in need of hospitalisation, intensive
care and respiratory support for prolonged periods of time.
The death
toll in some of the countries rose significantly, for example, in
Italy and Spain.
32.
In early March 2020, when the first COVID-19 case
was confirmed in the Republic of South Africa, it became
clear that
the South African population would be affected. There was a high
probability that some individuals would be infected
by the
coronavirus as evidenced by the events in China and other countries.
Given South Africa's unique challenges relating to
the provision of
public healthcare,
inter alia
socio-economic challenges, we
feared the worst and the government had to be proactive in putting
plans in motion to manage the
COVID-19.
33.
The government sought medical advice from medical
and scientific experts (National Coronavirus Task Team)
to prepare in
order to manage and minimise the risk of infection and slow the rate
of infection to prevent the overwhelming of
the public healthcare
facilities. There is no existing legislation and contingency
arrangements to adequately manage COVID-19.
34.
The WHO also issued guidelines as to how counties
can slow the rate of infection and prevent many deaths.
The
government also learnt from other countries which were already
grappling with the measures to contain the disease.
35.
An effective means to slow the rate of infection
and “flatten the curve” was to employ measures
to manage
the COVID-19 by ensuring a coordinated response and putting the South
African national resources of the national government
together to
deal with this pandemic.
36.
There were no effective measures to manage the
risk of infection or prevent infection and to ensure that
the
government was prepared to deal with [the] COVID-19 pandemic. The
government had to consider placing measures to deal with
the
outbreak, considering the consequences of those measures on the South
African population and economy.
37.
The purpose of curbing the spread of the COVID-19
disease was to save lives. After consultation with the
Minister of
Health and Cabinet, it was agreed that the most effective measures to
manage COVID-19 and the consequences of this
disease on the society
and the economy, was to declare a national state of disaster in terms
of section 27(1) of the DMA. Thus,
on the 15th March 2020, the
Minister declared a national state of disaster.’
It
is to be noted that according to the Director-General, the Government
took advice from medical and scientific experts on the
ministerial
task team which had been established locally to advise government on
its response to the pandemic, the National Coronavirus
Task Team. The
statement that medical and scientific experts were consulted and had
been advising government is not disputed. Unlike
the unsupported
opinions offered by Mr de Beer and the LFN as to how COVID-19 should
be understood and dealt with, the position
of the Government and its
response to COVID-19 are based on the advice it sought from the
medical and scientific experts, including
the National Coronavirus
Task Team.
[21]
Based on what is set out above, it was contended on behalf of the
Minister that the jurisdictional
facts for the declaration of a
national state of disaster contemplated in s 27(1)
(a)
and
(b)
were met. The declaration, so it was submitted, was entirely rational
and in line with what had been done in other countries such
as Italy,
Spain and France.
[22]
The Minister was emphatic that the IHRA was inadequate to deal with
COVID-19, especially since
it was enacted more than four decades ago
in 1974, and had been overtaken by technological, scientific and
biological developments.
If this were not so, it was submitted on
behalf of the Minister, the WHO would have advised countries to make
use of the IHRA.
The Minister stated that the declaration of a
national state of disaster was an appropriate measure to deal with
COVID-19, because
there was no other available legislative measure or
other contingency measure that could be
invoked
to deal with the threat posed to national health and safety.
[23]
The Director-General said the following:
‘
The
conditions posed by the COVID-19 warranted the decision to declare a
national state of disaster because the human and financial
cost
associated with the management of the disease was expected to be
overwhelming. The state had to release the national government

resources to coordinate the response in order to slow down the rate
of infection in order to prepare to deal [with] an increase
of
infections.’
She
denied that the decision to declare a national state of disaster was
based on unconfirmed, unverified and incorrect medical
advice. She
pointed out that at the time that the national state of disaster was
declared, major European countries were already
struggling to contain
the virus, which was evident from the statistics and data collated
and disseminated by the WHO. That carriers
of the virus are
oftentimes asymptomatic made it all the more difficult to detect and
contain the virus.
[24]
In relation to the substance of the regulations, the Minister’s
view was that
she was careful to have regard to the limitations
placed on her power by ss 27(2) and (3) of the Act and she insisted
that she
kept within the bounds of her power. The Minister noted that
s 27(2) required her to consult with the relevant Cabinet Minister,

and she did. She asserted that in compliance with that subsection,
she consulted with the Minister of Health, the entire Cabinet
and the
National Coronavirus Command Council (the NCCC).
[25]
In relation to the contention by the LFN that she was required to
consult with the NCOP, the
Minister took the view that this was not
so. In this regard, she indicated that regulations that required
approval by the NCOP
were those made under s 59(1) of the Act.
Section 59(1) provides that NCOP approvals were those which resort
under s 146 of the
Constitution. Section 146(6) of the Constitution
provides:
‘
A
law made in terms of an Act of Parliament or a provincial Act can
prevail only if that law has been approved by the National Council
of
Provinces.’
According
to the Minister, there is no conflict between the regulations and
provincial legislation.
[26]
The Minister also took issue with the contention of the LFN that the
regulations were in conflict
with the Gatherings Act. That
legislation, like the regulations, she pointed out, regulate
s
the holding of public gatherings and demonstrations. The right
to assemble, demonstrate, picket and petition is guaranteed by s 17

of the Constitution. The Minister contended that what was required
was to test the regulations against s 36 of the Constitution
to see
if they pass muster. The Minister insisted that the limitation
imposed on fundamental freedoms by the regulations was justifiable,

when viewed against the provisions of s 36 of the Constitution.
[27]
The following factors were relied on as justification:
‘
66.
The purpose of the limitation is to save lives. It is a notorious
fact that the COVID-19 disease is spreading
rapidly, and it is
transmissible from one person to another. It was, therefore,
imperative to limit the freedom of movement of
people to reduce the
rate of infection. I have mentioned in this affidavit that if the
rate of infection increased exponentially,
public healthcare
facilities would be overwhelmed and it would lead to a collapse of
the system and both COVID 19 patients and
other ordinary patients who
suffered from other types of maladies will not receive medical
attention or adequate medical attention.
Consequently, deaths will be
inevitable.
67.
I have to interpose and state that the Constitution enjoins the State
to respect, protect, promote and
to fulfil the rights in the
Constitution. The right to life, the right to have access to health
care and [an] environment that
is not harmful, are implicated.
68.
The consequence of the lockdown is that people are restricted to
their places of residence, and they
can leave their residence only if
it is necessary for example to seek medical attention or to purchase
food or perform essential
service[s], the lockdown measures are
reasonable and justifiable to protect public good[s] and services.
Thus the extent of the
limitation is necessary to reduce the rate of
infection and protect [people’s] lives.
69.
Without the restricting or prohibiting of public gatherings, it would
have been virtually impossible
to reduce the rate of infection
because it is conceivable that in large public gatherings for example
soccer or rugby matches it
would be impossible for the spectators to
maintain a recommended social distancing of 1 and half metre[s]. As
COVID-19 can be transmitted
through passing fluids droplets by
coughing, sneezing or touching, it will be challenging [to] maintain
the recommended distance.
70.
There is a close connection between the limitation and its purpose.
If free movement and congregations
[are] minimised, the rate of
infection will be reduced. If people keep social distancing, the rate
of infection will be slower.
If people are confined to their homes,
the risk of infection is reduced. I have said in the paragraph
supra,
people may carry this virus without showing any symptoms. The
scientific evidence locally and abroad indicates that one infected

person may infect two or three people. The purpose of the limitation
cannot be over emphasised. It is to save lives. Saving lives
takes
precedence over freedom of movement and the right to assemble or
demonstrate.
71.
It is evident from other counties such as the United Kingdom, United
States of America, Russia, Italy
just to mention a few, that it
became practically difficult to reduce the rate of infection without
implementing the lockdown.
The lockdown measures employed were the
less restrictive measures to achieve the governmental purpose of
saving lives of the South
African population and use state resources
where most needed.’
Reliance
was also placed on the decision in
Mohamed
and Others v President of the Republic of South Africa and Others
,
[6]
where the court accepted that the government consulted extensively
and that it could not find that the restrictions imposed were
either
unreasonable or unjustifiable.
[28]
It is to the high court’s reasoning and the resultant order
that we now turn.
On 2 June 2020, the high court
declared all the regulations irrational, unconstitutional, unlawful
and invalid in their entirety,
with the seeming exception of the
prohibition on tobacco and related products. This broad formulation
included and was intended
to include, within its scope, the Level 3
regulations, even though they were not dealt with in the affidavits
and were not before
the court when the case was argued. It did so
essentially on the grounds that they are irrational and constitute an
unjustifiable
limitation of rights in the Bill of Rights. In that
regard, the high court held:
‘
[7]
Applying the
rationality test
:
It
is now necessary to test the rationality of s
ome
of the regulations and their "connectivity" to the stated
objectives of preventing the spread of infection:
7.1
When a person, young or old, is in the grip of a terminal disease
(other than COVID 19) and is slowly
leaving this life, to ease that
suffering and the passing, it is part of the nature of humanity for
family and loved ones to support
the sufferer. Moreover, there are
moral, religious and Ubuntu imperatives demanding this. One might
understand the reluctance to
have an influx of visitors should the
person at death's door be inside the doors of a medical facility for
fear of the spread of
COVID 19, but what if the person is in his or
her own home or at the home of a family member or friend? Loved ones
are by the lockdown
regulations prohibited from leaving their home to
visit if they are not the care-givers of the patient, despite being
prepared
to limit their numbers and take any prescribed precautions.
But once the person has passed away, up to 50 people armed with
certified
copies of death certificates may even cross provincial
borders to attend the funeral of one who has departed and is no
longer in
need of support. The disparity of the situations are not
only distressing but irrational (Regulation 35).
7.2
There are numerous, thousands, no, millions of South Africans who
operate in the informal sector. There
are traders, fisheries,
shore-foragers, construction workers, street-vendors, waste-pickers,
hairdressers and the like who have
lost their livelihood and the
right to “eke out a livelihood” as the President referred
to it as a result of the regulations.
Their contact with other people
are less on a daily basis than for example the attendance of a single
funeral. The blanket ban
imposed on them as opposed to the imposition
of limitations and precautions appear to be irrational.
7.3
To illustrate this irrationality further in the case of hairdressers:
a single mother and sole provider
for her family may have been
prepared to comply with all the preventative measures proposed in the
draft Alert Level 3 regulations
but must now watch her children go
hungry while witnessing minicab taxis pass with passengers in closer
proximity to each other
than they would have been in her salon. She
is stripped of her rights of dignity, equality, to earn a living and
to provide for
the best interests of her children. (Table 2 item 7).
7.4
There were also numerous complaints referred to in [the] papers about
Regulation 34 placing irrational
obstacles in the way of those
responsible for children or in the position of care-givers of
children to see that their best interests
are catered for.
7.5
Random other regulations regarding funerals and the passing of
persons also lack rationality. If one
wants to prevent the spreading
of the virus through close proximity, why ban night vigils totally?
Why not impose time, distance
and closed casket prohibitions? Why not
allow a vigil without the body of the deceased? Such a limitation on
a cultural practice
would be a lesser limitation than an absolute
prohibition. If long-distance travel is allowed, albeit under strict
limitations,
a vigil by a limited number of grieving family members
under similar limitations can hardly pose a larger threat. And should
grieving
family members breach this prohibition, their grief is even
criminalized (Regulations 35(3) and 48(2)).
7.6
There is also no rational connection to the stated objectives for the
limitation on the degree of the
familial relationship to a deceased
in order to permissibly attend his or her funeral. What if the
deceased is a clan elder or
the leader of a community or the
traditional head of a small village? Rather than limit the number of
funeral attendees with preference
to family members, exclusions are
now regulated, arbitrarily ignoring the facts of each case
(Regulation 35(1)).
7.7
The limitations on exercise are equally perplexing: If the laudable
objective is not to have large groups
of people exercising in close
proximity to each other, the regulations should say so rather than
prohibit the organizing of exercise
in an arbitrary fashion
(Regulation 33[(1)](e)).
7.8
Restricting the right to freedom of movement in order to limit
contact with others in order to curtail
the risks of spreading the
virus is rational, but to restrict the hours of exercise to
arbitrarily determined time periods is completely
irrational (also
Regulation 33(1)(e)).
7.9
Similarly, to put it bluntly, it can hardly be argued that it is
rational to allow scores of people
to run on the promenade but were
one to step a foot on the beach, it will lead to rampant infection
(Regulation 39(2)(m)).
7.10
And what about the poor gogo who had to look after four youngsters in
a single room shack during the whole lockdown
period? She may still
not take them to the park, even if they all wear masks and avoid
other people altogether (also Regulation
39(2)(e)).
.
. .
7.16
I debated with counsel for the Minister the fact that I failed to
find any evidence on the papers that the Minister
has at any time
considered the limitations occasioned by each [of] the regulations as
they were promulgated,
on
the Constitutional rights of people. The Director General's affidavit
contains mere platitudes in a generalized fashion in this
regard, but
nothing of substance.
7.17
The clear inference I draw from the evidence is that once the
Minister had declared a national state of disaster
and once the goal
was to “flatten the curve” by way of retarding or
limiting the spread of the virus (all very commendable
and necessary
objectives), little or in fact no regard was given to the extent of
the impact of individual regulations on the constitutional
rights of
people and whether the extent of the limitation of their rights was
justifiable or not. The starting point was not “how
can we as
government limit Constitutional rights in the least possible fashion
whilst still protecting the inhabitants of South
Africa?” but
rather “we will seek to achieve our goal by whatever means,
irrespective of the costs and we will determine,
albeit
incrementally, which Constitutional rights you as the people of South
Africa, may exercise”. The affidavit put up
on behalf of the
Minister confirms that the factual position was the latter. One
should also remind oneself that the enabling section
of the DMA
sought to augment existing measures, not replace them entirely.
7.18
This paternalistic approach, rather than a Constitutionally
justifiable approach is illustrated further by the
following
statement by the Director General: “
The powers exercised
under lockdown regulations are for public good. Therefore the
standard is not breached”.
7.19
The dangers of not following a Constitutional approach in dealing
with the COVID 19 pandemic have been highlighted
in the judgment of
Fabricius, J referred to in paragraph 4.3 above. In his judgment, the
learned judge, amongst other things, raised
the following question:
“
The
virus may well be contained – but not defeated until a vaccine
is found – but what is the point if the result of
harsh
enforcement measures is a famine, an economic wasteland and the total
loss of freedom, the right to dignity and the security
of the person
and, overall, the maintenance of the rule of law?”
7.20
In a recent article by Calitz in De Rebus 2020 (June) DR 9 entitled
“Government's response to COVID 19: has
the Bill of Rights been
given effect to?” the following apposite views are expressed:
“
COVID-19
is a fierce pandemic with numerous deaths across the world and
unfortunately there is no date on our calendar, which we
can circle,
to indicate when the storm will finally pass. Yes, there are
unprecedented hardships on social, political, health,
and economic
sectors, but even more so on basic human rights. These distresses are
felt more harshly by the least protected in
society who do not have
access to adequate housing, clean running water, healthcare, food, or
social security, which are all guaranteed
basic human rights.
The
protection of inherent human dignity is another constitutional right
guaranteed in
s 10
of the Constitution.
While it goes without saying that the loss of employment or
livelihood impact on one's dignity, the rapidly
increased rate of
gender-based violence during lockdown raises concern and alarm. Women
and men are beaten and abused by their
partners while being compelled
by law to stay inside their homes. They cannot run or escape and are
left helpless.
During
a pandemic, government should never lose sight of basic human rights.
In fact, it should prioritise their realization and
protection of
human rights in such a time even more so. In my view, the Bill of
Rights has not been given effect to. A pro-human
rights lockdown
would have perhaps looked much different –
-
Military officials would have acted more humanely;
-
Lockdown regulations would have not been equally strict over
different parts of the country and would have taken
into account
personal living conditions of the poor; and
-
The fulfilment of human rights would have been the most important
priority to attain.”
I
agree with these sentiments.
7.21
I find that, in an overwhelming number of instances the Minister
[has] not demonstrated that the limitation of
the Constitutional
rights already mentioned, [has] been justified in the context of
section 36 of the Constitution.’
[29]
The high court rejected the submission on behalf of the present
respondents concerning the approval
of the NCOP. It reasoned as
follows:
‘
Many
of the functional areas referred to in Section 27(2) of the DMA fall,
in terms of Schedule 5 of the Constitution, within the
areas of
provincial legislative competence, such as liquor licenses,
provincial sport, provincial roads and traffic, beaches and
amusement
facilities, cemeteries, funeral parlours and crematoria, markets,
public places and the like (subject to certain monitoring
and control
aspects by local spheres of government which are not relevant to the
current issues). In order to avoid conflict between
national and
provincial legislation, section 146(6) of the Constitution requires
laws made by an Act of Parliament to prevail only
after approval by
the National Council of Provinces (“NCP”). Section 59(4)
of the DMA provides that regulations made
by the Minister should also
be referred to the NCOP for approval first. This proviso, however,
only refers to regulations promulgated
in the ordinary course of
business in terms of section 59(1) of the DMA. It does not apply to
all regulations under the Act. Upon
a reading of sections 27(2) and
27(5) of the DMA it is also clear that the regulations (and
directions) provided for therein, are
of an urgent or emergency
nature and clearly intended to be for a temporary period only. They
are distinguishable from those mentioned
in sections 5(1) and 59(4)
of the DMA and to equate the two types of regulation with each other
and require consideration, debate
and approval by the NCOP for
Section 27(2) regulations might frustrate or negate the whole purpose
of urgent action and augmentation
of otherwise insufficient disaster
management provisions.’
[30]
On 30 June 2020, the high court granted leave to the Minister to
appeal against the declaration
of invalidity of those regulations
that were not expressly identified in its judgment (ie those
discussed in paras 7.1-7.10 of
the judgment, which we quoted
earlier). The high court refused leave to appeal against the
regulations specifically addressed in
its judgment, namely,
regulations 33(1)
(e)
, 34, 35 and 39(2)
(m)
and the
exceptions to regulations 46(1) and 48(2), all as contained in the
Level 3 regulations (the six Level 3 provisions). This
Court granted
leave to the Minister to appeal in respect of the six Level 3
provisions on 22 September 2020. Accordingly, the appeal
before this
Court is against the high court’s order in its entirety.
[31]
We must note that the high court declined to grant the relief sought
by the present respondents
in para 3 of their notice of motion,
namely, an order that the proclamation of the national state of
disaster was unconstitutional,
unlawful and invalid. The high court
refused leave to the present respondents to cross-appeal. They
thereafter brought an application
for such leave to this Court. The
said application was refused on 22 January 2021 on the basis that it
enjoyed no reasonable prospects
of success and that there was no
other compelling reason for the cross-appeal to be heard. It needs to
be mentioned that the HBF
had sought direct access to the
Constitutional Court on an urgent basis, which was refused on 30
March 2020.
The
virtual hearing and recusal
[32]
Before turning our attention to the merits of the appeal, it is
necessary to deal with what transpired
in the period after the
judgment of the high court was delivered and the petition to this
Court to extend the scope of the appeal
succeeded. The events
described relate, in the main, to the objection by the present
respondents to the hearing of the appeal by
this Court on a virtual
platform (a digital videoconferencing facility) and to an associated
attempt to secure the recusal of the
judges assigned to hear the
matter. The objection raised by the respondents has to be seen in the
context of measures taken by
the Office of the Chief Justice (OCJ)
and by this Court to deal with the threat posed by COVID-19. That
requires a historical excursus
before dealing with the stance adopted
by the respondents and the exchange of correspondence involving the
Court, the parties,
CASAC and the HBF.
[33]
On 17 March 2020, the OCJ issued a media statement entitled ‘Measures
adopted by the heads
of court to curb the spread of COVID-19 in all
courts’. The media statement commenced with the recognition
that the Cabinet,
on 15 March 2020, had decided that gatherings of
more than 100 people were prohibited and where gatherings of smaller
groups were
unavoidable, organisers would have to put in place
‘stringent measures of prevention and control, in order to curb
the spread
of COVID-19 in South Africa’.
[34]
The media statement then went on to set out measures that would be
taken by courts to counter
the threat posed by COVID-19 and to curb
its spread. These included decontamination measures, temperature
checks on people seeking
entry, personal protective equipment for
court personnel and social distancing measures. In line with
s
165 of the
Constitution
[7]
and the provisions of the Superior Courts Act 10 of 2013 (the SC
Act), so the statement proceeded, the heads of court may make

proposals to the Executive to issue regulations impacting on the
operations of courts. The statement ends with an exhortation to
all
to comply with the directives and guidelines when dealing with
confirmed or suspected cases of COVID-19.
[35]
On 20 March 2020, acting in terms of s 165 of the Constitution and s
8(3) of the SC Act,
[8]
the Chief Justice issued a directive pursuant to which access to
courts was restricted to people with a material interest in a
case.
Non-essential visitors were allowed entry only with the permission of
the head of court. On 17 April 2020, the Chief Justice
issued a
further directive. He also delegated to heads of court the authority
to take such action and issue such directions as
may be necessary to
give effect to ‘these Directives’. Parties to litigation
were, in terms of the directive, given
the option to agree to have
matters that were set down during the lockdown, removed from the
roll.
[36]
The directive provided that only urgent applications and ‘urgent
matters arising
from the activities associated with disaster
management may be heard in open Court during the lockdown period,
provided that the
Judge or Magistrate . . . hearing the matter may,
if he or she deems it necessary, having regard to the exigencies of
each case,
hear any such matter through videoconferencing or other
electronic means which are appropriate in the circumstances, after
consultation
with the parties concerned’.
[37]
The directive also dealt with opposed applications. Heads of argument
were required to be filed
electronically, save where a litigant was
unrepresented and did not have access to email. Parties were required
to endeavour to
reach agreement on dispensing with oral argument. In
the absence of agreement being reached, the judicial officer
concerned may
direct that the matter be heard by way of
videoconferencing or other appropriate electronic means.
[38]
In relation to appeals, the directive dictated that appropriate
measures ‘shall
be taken to eliminate the need for
practitioners to attend court, and the presiding Judge may direct
that the hearing be by video
conference or other electronic means
which are appropriate . . . and on such terms as she or he may
determine’.
[39]
The directive ended by stating that the heads of court shall, during
lockdown, issue such Directions
as may be necessary to manage
particular circumstances and that the measures set out in the
directive issued on 17 March 2020 shall
remain in force during the
lockdown period.
[40]
On 21 April 2020, the President of this Court addressed a letter to
attorneys, the General Council
of the Bar, Law Societies and the
Legal Practice Council pointing out that courts, throughout the
world, have found it necessary
to direct that hearings should
‘proceed remotely’. The profession was notified that this
Court had resolved not to
conduct physical in-person hearings during
May 2020 – the first term after lockdown measures were put in
place. Parties were
given a choice to agree to dispense with oral
argument in terms of s 19
(a)
of the SC Act. Lawyers were
notified that hearings would proceed via web-based videoconferencing.
Parties who took the view that
a physical hearing could not be
dispensed with were required to communicate that view to the
Registrar and to say why a physical
hearing was imperative,
whereafter the presiding judge would issue an appropriate directive,
including, if necessary and where
appropriate, an order that the
matter be adjourned
sine die
.
[41]
On 29 April 2020, the President of this
Court issued a practice directive in relation
to appeal video or
audio hearings during the COVID-19 pandemic
[9]
.
The directive stated that ‘[v]irtual hearings are the default
position until further direction’. The primary aim was
to
‘ensure ongoing access to justice by all parties to cases
before the court and safety from infection whilst facilitating

hearings that allow parties to participate as fully as possible’.
The directive also dealt with the variety of available
options for
the conduct of web-based hearings and set out hearing protocols in
respect of the digital videoconferencing platforms.
[42]
On 2 May 2020, a further directive was issued by the Chief Justice.
Parties were once again informed
that matters set down during the
lockdown may be removed by agreement. It went further and stated that
matters not removed from
the roll would be dealt with in accordance
with a procedure determined by the head of court. In relation to
opposed applications,
the directive was that in the event that
parties failed to reach agreement dispensing with oral argument, a
judicial officer may
direct that the matter be heard electronically.
In relation to appeals, the following is stated:
‘
15.
Barring changes and adaptations in relation to process and hearings
necessitated by the period of the national
state of disaster, the
Constitutional Court shall process and dispose of all matters in line
with its Rules and the Constitution.
16.
The Presiding Judge shall solicit the views of the parties prior to
the appeal panel making a determination
in terms of
section 19
(a)
of the
Superior Courts Act.
17.
In
the event of the appeal panel determining that oral submissions
are to be made, appropriate measures shall be taken to eliminate
the
need for practitioners to attend court, and the presiding Judge may
direct that the hearing be by video conference or other
electronic
means which are appropriate . . . on such terms as she or he may
determine.’
[43]
The directive ended by stating that the Directives issued on 20 March
2020 shall remain in force during
the period of the national state of
disaster, but that the measures issued on 17 April 2020 were
repealed.
[44]
On 1 August 2020, the President of this Court issued a practice
protocol.             The

purpose is stated right at the outset:
‘
The
purpose of this protocol is to prescribe the manner in which the
virtual hearing is to be conducted. Insofar as possible given
the
nature of the technology being used for the hearing it will be
conducted in the same manner as a conventional hearing in the
Supreme
Court of Appeal. It is essential that ordinary conventions are
followed in regard to dress, mode of address and the like
in order to
maintain proper decorum in the court.’
The
directive announced that the preferred videoconferencing platform was
Microsoft Teams. The protocols for the hearing were then
spelt out.
[45]
Those then were the directives, which it will be seen were consistent
in relation to hearings
during the lockdown period. This Court
applied them and conducted hearings in accordance with the
directives.
[46]
On 18 March 2021, the parties, CASAC, as well as the HBF were sent a
notice of set-down
of this appeal by this Court’s Registrar.
They were informed that the appeal would be heard on Wednesday 26 May
2021. Paragraph
3.2 of the notice contained the following customary
paragraph, in line with the directives set out above:
‘
If
any party is of the view that an in-person oral hearing cannot be
dispensed with, such party will be directed to make representations

in writing to the registrar as to why the appeal requires an
in-person oral argument and the presiding judge will issue an
appropriate
directive, including, if necessary, an order that the
matter be adjourned
sine
die
.’
It
is necessary to note that the present respondents had, in
anticipation of the appeal being heard, filed heads of argument that

are 38 pages long.
[47]
On 30 March 2021, the state attorney, on behalf of the Minister,
responded to the notice of set-down,
by stating that CASAC and the
Minister were both of the view that the matter should be disposed of
by way of a remote virtual hearing.
The state attorney ended that
written communication as follows:
‘
We
understand that the respondents seek an in-person hearing . . . We
attach the letter we sent to them, requesting their consent
to a
virtual hearing . . .’
On
30 March 2021, the LFN and Mr de Beer responded to that request as
follows:
‘
1.
Writer refers to the Notice of Set Down in the Supreme Court of
Appeal for 26 May 2021.
2.
The Respondents
will
be attending Court at 09h45 on 26 May 2021 for a physical hearing
in
line with their rights in terms of Section 34 of the Constitution of
the Republic of South Africa, 1996 read with Section 32
of the
Superior Courts Act, 2013 (Act No. 10 of 2013).’
[10]
(Our emphasis.)
[48]
On 31 March 2021, the respondents addressed an email to the
Registrar’s office,
apparently in relation to a communication
from CASAC in respect of its stated preference for a virtual hearing,
which, from its
perspective, included a cost saving. The respondents
reiterated their uncompromising stance, namely that they would
tolerate nothing
other than an in-person hearing. As will also be
seen, the respondents asserted quite emphatically that in the event
that they
are forced by a court directive to participate in a virtual
hearing, they ‘will respond by bringing an application to
challenge
the constitutionality and validity of virtual Court
hearings in South Africa’. It is insinuated that if the court
persisted
with a virtual hearing it would effectively be prejudging
the case against the respondents. Since the letter accords with the
tone
and tenor of the founding affidavit in the matter and is not
entirely intelligible, it is best that it be reproduced in its
entirety:
‘
1
Writer refers to the letter addressed to you by the attorneys of the
admitted
Amicus
Curiae
,
Council for the Advancement of the SA Constitution (CASAC), dated
30
th
instant.
2
The Respondents do not wish to litigate by letter, but as an actual
party to the dispute
itself writer wishes to clarify certain points
raised in the letter under response.
3
The
Amicus Curiae
, respectfully, is not in any position to
dictate which process might be most suited to be followed by the
actual litigants in this
matter.
4
Like any
amicus curiae
, CASAC became part of these proceedings
out of [its] own free will. With quite a number of senior advocates
on its advisory council
the issue of costs and expenses relating to
litigation simply cannot come as surprising as it is made out to be.
Further, writer
finds it preposterous for an organisation of CASAC’s
stature to even insinuate financial hardship. According to CASAC’s

published Statement of Comprehensive Income contained in [its]
2018/2019 Annual Report, its operating expenses amount to in excess

of R23 million. Under the circumstance, writer is quite certain that
some additional fuel and travel expense from Cape Town to

Bloemfontein should not be too problematic.
5
Further, the very COVID-19 measures referenced are also the
interventions by the Appellant
which are under dispute in this
matter; at this point, adjudication by the SCA is outstanding.
6
The Respondents do not believe that there is any special circumstance
present preventing
a hearing on 26 May 2021 in open Court; as a Court
should be. In this context, writer reminds the
Amicus Curiae
that the Criminal Procedure Act, 1977 (Act No. 51 of 1977) had to be
amended to specifically make provision for virtual hearings.
7
Regretfully the parties are not in agreement on this issue, thus the
hearing should
proceed in an open court, at the SCA’s Building,
Bloemfontein, on 26 May 2021 at 09h45.
8
In the event that the Judge would direct that the Respondents must
attend a virtual
hearing against their constitutional rights, this
Court would then find itself in the position to openly favour the
arguments of
the Appellant even before the commencement of the
hearing.
9
In this context, the Respondents are humbly submitting that the Court
order in question
in any event already came into operation and effect
on 24 June 2020, resulting in the COVID-19 measures prescribed by the
Appellant
to be of no effect and to be discarded by this Court.
10
The Respondents have taken a non-negotiable position that in the
event that they are forced by
a directive of the Judge into a virtual
hearing violating their constitutional right to have an open Court
hearing, they will respond
by bringing an application to challenge
the constitutionality and validity of virtual Court hearings in South
Africa.
11
Resultantly, the Respondents will appear in person before the open
Court on 26 May 2021 as per
the Notice of Set Down.
12
If this standpoint by the Respondents, which is to ensure the
protection of the authorities of
our Constitution and Courts, are in
any way regarded as contempt of this Court, the Respondents are
prepared to accept the associated
punishments.
13
Our rights remain reserved
in
toto
.’
[49]
On 8 April 2021, the Registrar was directed by the judges assigned to
hear this appeal to address
the following note to the parties:
‘
Since
the second quarter of last year the Supreme Court of Appeal has
successfully conducted its entire roll each term by way of
remote
hearings on Microsoft Teams. At the end of each session legal
representatives of the parties acknowledged that they had
a full and
satisfactory hearing. Appeal hearings have the added advantage that
there is a full record before the court and a hearing
is preceded by
heads of argument. Appellate courts in other comparable jurisdictions
have successfully conducted web-based appeal
hearings.
In
many of the matters that have been successfully finalised by this
court thus far, the records have been as substantial and the
issues
as complex (if not more so than this). The health and safety concerns
that prompted the SCA to opt for virtual – in
preference to
in-person – hearings still obtain. It is still unclear when the
SCA will be able to safely resume in-person
hearings. It bears
mentioning that the Supreme Court of Appeal has on a number of
occasions been subjected to a sanitisation program
which necessitated
the court building having to be vacated temporarily after support
staff tested positive.
In
the circumstances, the appeal scheduled for Wednesday 26 May 2021
will, subject to what appears below, proceed by way of remote
hearing
on Microsoft Teams. If the respondents persist in their objection to
a virtual hearing, it may, at the hearing of the matter,
address full
argument on the prejudice, if any, that it will suffer. To that end:
(i) the respondent may file supplementary heads
of argument by 20
April 2021, in which this aspect is addressed; and, (ii) the
appellant and the amicus may, if so advised, file
heads of argument
in response by 3 May 2021. This notwithstanding, the parties must
nonetheless be prepared, if called upon to
do so, to address the
substantive merits of the appeal on 26 May 2021.’
[50]
On 10 April 2021, the respondents wrote in response as follows:
‘
1.
Writer refers to your letter dated 8
th
instant.
2.
Where writer does not respond to any specific matter raised therein,
it should not be construed
as if the Respondents are in agreement
with same and that such will be addressed at the relevant forum, if
required.
3.
Kindly note that the very measures which had instigated the SCA and
other Superior Courts
to move to the controversial virtual “Court”
hearing system are the actual subject which is under this appeal by
the
Appellant. The Respondents have already been successful in having
same declared as unconstitutional and invalid. The fact that the

Court order of 2 June 2020 (held in the open) came into operation on
24 June 2020 need not be confirmed by the SCA as the authority
in
support of this argument stems directly from the Constitutional
Court. This is addressed in our Heads of Argument.
4.
As stated prior in the letter to the Registrar, Mr Paul Myburgh,
dated 30
th
last instant, the right of the Respondents to
have an open Court hearing is not negotiable. It is an enshrined
right in the Bill
of Rights. Should the SCA [try] to push the
Respondents into any type of virtual hearing in this matter same
shall be accepted
as a confirmation that the SCA has become a mere
extension of the Appellant’s argument and that, consequently,
the SCA is
no longer independent.
5.
As stated prior, the Respondents will attend the open court hearing
in Bloemfontein on 26
May 2021 as per Notice of Set Down. In the
alternative, and if instructed to do so by the Court, the Respondents
will attend the
hearing in this matter to be set down for hearing at
a date after the Appellant has eventually uplifted the National State
of Disaster.
Kindly note that a postponement of the hearing will not
alter the Respondents argument.
6.
Our rights remain reserved
in toto
.’
As
can be seen, the respondents adopted an uncompromising position. In
this response the respondents make what can only be described
as a
scandalous accusation: that in the event that the Court proceeds with
a virtual hearing, this Court will have become a mere
‘extension
of the Appellant’s argument and that consequently the SCA is no
longer independent’.
[51]
On 5 May 2021, the Registrar, as instructed by the judges appointed
to hear the appeal this Court,
sent the following note to the
parties:
‘
This
Court’s previous directive, dated 8 April 2021, refers. The
matter has been set down for hearing on 26 May 2021. As stated

earlier, the appeal is scheduled to proceed on that date by way of a
virtual hearing on a Microsoft Teams platform. A link will
be
provided to the parties and the amicus for participation in a virtual
hearing. The grounds for objection to the appeal not being
heard in
person may be raised during the first part of the virtual hearing.
That will include the question of whether there is
any prejudice to
the respondents and whether or to what extent any of their rights
have been attenuated. As stated in the prior
directive, heads of
argument on this preliminary aspect may be filed in advance of the 26
May 2021.
The
judges adjudicating the matter will, on the 26 May 2021 log in from
locations remote from Bloemfontein.
The
media and members of the public may, as always, approach the
Registrar to provide the link for access to the virtual hearing.
The
registrar’s office requires the respondents’ last written
communication, in response to the directive, which indicated
that it
was “sent electronically without a signature”, to be
verified by way of a signed hard copy being sent to the
court in
Bloemfontein.’
[52]
The appellant and CASAC were of the view, expressed in writing to the
Registrar, that the respondents’
stance on the appropriateness
of a virtual hearing was without merit and expressed their regret at
the remarks made concerning
this Court. The communication on behalf
of the Minister pointed to decisions of our courts confirming the
legality of virtual hearings.
[53]
On 18 May 2021, the Respondents wrote to the Registrar as follows:
‘
1.
Writer refers to your letter dated 5
th
instant and apologises for the delayed response. Writer was in the
field and had no access to a computer.
2.
Where writer does not respond to any specific matter raised therein,
it should not be construed
as if the Respondents are in agreement
with same and that such will be addressed at the relevant forum, if
required.
3.
Writer notes that the Appellant misdirects the Court in respect of
her claims in relation
to the declaration of unconstitutionality and
invalidity of the DMA Regulations.
4.
The Appellant appears to have overlooked the fact that both Chapters
1 and 2 of the 29 April
2020 set of DMA Regulations, applicable
during
all
levels, were before the Court
a quo
which
specifically dealt with all the COVID-19 measures. Relying on the
previously cited
New Clicks
Constitutional Court case where
Adv. Trengove SC, here appearing for the Appellant, led the argument
and should thus be very well
aware of the fact that the DMA
Regulations have become null and void since 24 June 2020. Without the
DMA regulations in place,
however, which question is before this
Court here, this Court has no basis to even consider so-called
virtual “court”
hearings.
5.
If, nevertheless, the Appellant wished to rely on her argument that
the 2 June 2020 Court
order was suspended pending the outcome of the
appeal, in contradiction to the
New Clicks
judgment, she would
have been obliged to approach the Court for a declaratory order in
that respect. In absence of such order,
the Respondents are well
within their rights to rely on the full extent of the 2 June 2020
Court order.
6.
The inference to be drawn is that the Appellant has been, either way,
enforcing unlawful
regulations as of 24 June 2020.
7.
Further, if this Court should continue trying to enforce a virtual
“Court” hearing
onto the Respondents, in the clear
absence of any lawful measure in place which could justify such a
special deviation, same would
confirm that this Court has become a
body, dependent on legislative and executive powers and decisions.
This would not only be
a grave violation of the Doctrine of
Separation of Powers, it would further, by the same token, confirm
that this Court lacks the
jurisdiction to adjudicate this matter any
further.
8.
In light of the above, the Respondents herewith request the Court to
proceed hearing the
appeal as set down for an open hearing in Court A
on Wednesday, 26 May 2021.
9.
Respectfully, please be reminded, Madam, that in letters addressed to
SCA Madam Justice President
Maya, dated 4 November 2020 and again 13
November 2020, the Respondents clearly outlined that, in their view,
a need existed to
urgently address the points
in limine
which
have at present become a burning issue. Both letters did not receive
any response from Maya P. On the eve of the hearing,
the parties are
now forced to attend to matters which could have been adjudicated
several months ago – if the Respondents
had been respected
enough to have received any form of response. For your convenience,
these letters together with the letter by
the State Attorney for the
Appellant in connection thereto, are transmitted with this letter.
(See Annexures “A” to
“C”).
10.
From your letter under response it further does not appear who
directed the virtual “Court”
hearing. It does, however,
appear as if such a directive was given by you, as the Chief
Registrar. If that was indeed the case
the Respondents would like to
respectfully further remind you, Madam, that
Section 32
of the
Superior Courts Act, specifically
states that all hearings must take
place in open court unless the Court (sitting with the appropriate
presiding officers) and in
special cases only, directs otherwise.
11.
The letter under reference also indicates that the judges are
supposed to log in from
remote
locations, in plural. The
immediate question is what would be those various venues and
locations of the Court and which of them
is going to hear the matter?
Will it still be regarded as the SCA seated at Bloemfontein or may it
be a new cybernetic SCA practically
seated at one or more simulated
Courthouses in various simulated Bloemfonteins? In absence of either
a venue or location, the Respondents
contest that the “remote”
judges have the required authority to, for example, hold anyone of
the parties in contempt
of court if such need arises. Unless, of
course, such holding would be as virtual as the contempt itself and
the convicted party
would receive a virtual sentence, to be served in
either some form of virtual confinement or be paid by virtual money.
Which would,
in actual fact, not even reach the level of trying to
settle by, say, toy money, as same at least does physically exist.
For your
convenience and purely demonstrative purposes, the
Respondents have attached a copy of a 100 Monopoly-Dollar note as
Annexure “
D
”. In difference to a virtual fine, a
virtual court or even a virtual judge, same can be actually looked
at, can physically
be touched and examined and can, for instance, be
turned around as, in reality, it actually does exist; albeit without
much real
value.
On a personal level, the Respondents invite you,
Madam, to try to switch on a real virtual Court room. You are welcome
to report
the results to the Respondents, if you wish; in particular
if the light went on in reality, on imaginary level or not at all.
12.
Virtual “court” hearings, in fact, have made a mockery of
our judiciary while the Appellant
knowingly had been enforcing
invalid COVID-19 measures against our people, and even our Court, for
the past 11 months.
13.
The Respondents are not aware of any existing law or regulation which
would force them into accepting
a virtual “Court”
hearing, neither by the Appellant herself nor the Rules Board in
terms of Section 30 of the Act.
It appears as if virtual “Court”
hearings have merely been made as a tool of authoritarian
convenience, for reasons
possibly known to the legal fraternity as,
in the view of the Respondents, virtual “Courts”
emphasize a monopoly by
some – privileged – over our
Courts, at the cost of the unprivileged masses of our people.
14.
The decision to have a virtual “Court” hearing under
these very unique circumstances applicable
in this matter, is not
just a simple procedural dispute which could perhaps be addressed in
an informal way. If the Court and other
parties are adamant to
proceed virtually, in deviating from the prescribed laws and against
the consent of the Respondents, such
would require a proper
application supported by affidavits to be lodged by the Appellant and
Amicus Curiae
. The Respondents are in support of the neutral
position – which is an open court hearing, as prescribed. This
Court is obliged
to accept this norm in absence of the other parties
formally lodging such an application in terms of Rule 12 read with
Rule 11(1)(b)
of the Rules.
15.
The Appellant has made extensive reference to the High Court cases
where those judges concerned ruled
in support of holding virtual
hearings. However, in none of those, the Courts considered that the
order in case number 21542/2020
had come into operation on 24 June
2020, making all those rigid measures obsolete.
16.
In the event that the directive was made by you Madam, in terms of
Rule 4(4) of the SCA Rules the Respondents
kindly request you to
urgently refer your decision to a judge as prescribed.
17.
If such claimed directive by the SCA was given by one or more SCA
judges, the Respondents would further
kindly require the names of
those judges and when, where and how such directive was made as a
matter of urgency
.
18.
The Respondents will remain with their commitment and right to
appeal in an open hearing in Court A on Wednesday, 26 May 2021
without
having to comply with any of the Chapter 2 declared
unconstitutional and invalid measures.
19.
Our rights remain reserved
in toto
. (Italicised for emphasis.
The parts in bold were in that form in the original.)
This
communication from the Respondents is quite extraordinary, most
especially         para
11
and the attachment of a copy of ‘Monopoly money’. It is
crass, insulting to the Registrar, disrespectful towards
the Court
and inexcusable. The issue of the enduring validity of the order of
the high court will be dealt with in due course.
For now, it needs to
be stated, as shall presently become clear, that the issue of the
declaration of a national state of disaster
was not before us on
appeal. There could thus be no question of us having prejudged that
issue. Although premised on the existence
of the national state of
disaster, the directives issued by the OCJ and the President of this
Court, to which reference has been
made, were founded on the powers
vested in the judicial authority by virtue of ss 165 and 173 of the
Constitution and ss 8(3) and
8(4) of the SC Act.
[54]
The reference in para 6 of the letter from Mr de Beer and the LFN,
set out in the preceding paragraph,
refers to correspondence sent by
them to the Registrar for the attention of President Maya. The
correspondence was sent electronically.
Hard copies were not
subsequently filed by them,
[11]
and the Registrar’s office, in accordance with Rule 4(1)
(b)
of the Rules of this Court,
[12]
and in terms of the Court’s standard practice, did not
therefore place the correspondence before her. Shortly after the
present appeal was heard, and the abovementioned correspondence was
made public, President Maya made enquiries of the Registrar,
who
provided the reason for not placing the correspondence before her.
That notwithstanding, the Deputy Registrar, without there
being a
need for it, wrote to Mr de Beer and the LFN on 2 June 2021,
tendering an apology for not following-up on the need for
a hard copy
to be filed. This elicited an uncouth, scandalous and totally
unacceptable written response from Mr de Beer and the
LFN, which we
will deal with towards the end of this judgment.
[55]
On the day before the scheduled hearing of the appeal, the
respondents caused to
be filed with the Registrar an application for
the recusal of all the judges assigned to hear the appeal. Paragraph
3.2 of the
founding affidavit bears repeating:
‘
What
this application is not about, is a challenge in relation to the
holding of virtual hearings by this Court and therefore it
is not the
case of the Applicants that the decision by the allocated judges were
wrong, but rather that the issuing of the Directive
by them shows
signs of bias. The Applicants, thus, fear that they will not receive
a fair adjudication of the appeal.’
Making
sense of that, in light of the repeated strenuous objection to a
virtual hearing and as will be described later, the refusal
to
participate in a virtual hearing, is an impossible task.
[56]
The founding affidavit in support of the application for recusal then
proceeded to set out the
exchanges with the Registrar’s office
outlined above. It repeated what had already been indicated in prior
communications
by the respondents that this appeal was unique, in
that COVID-19 measures were at the heart of it, and because the Court
had issued
the directives in question and insisted on hearing the
argument on whether the hearing should proceed virtually, the
respondents
were compelled to bring the application for our recusal.
[57]
The respondents adopted the position that they were well within their
rights to assume that the
impugned regulations, to which COVID-19
measures owed their existence, no longer existed. The founding
affidavit castigated this
Court for seeking the views of CASAC in
relation to both virtual hearings and the application for recusal,
and for treating it
as an ‘actual litigant’. Paragraph
5.8 of the founding affidavit is quoted, because it is an example of
the unbridled
criticisms of the respondents:
‘
It
further appears to the Applicants that the judicial act of directing
the format (method) by which to proceed with the hearing
had been
“outsourced” by the judges, for lack of the better word.
This inference is drawn from the fact that the Chief
Registrar
informed the Applicants on 20 May 2021 that the Directive to proceed
virtually was made “
under
the
authority
of the judges
allocated to the matter.”
In
terms of Section 168(2) of the Constitution “[a] matter before
the Supreme Court of Appeal
must
be decided
by the number of judges determined in terms of an Act of Parliament.”
This
judicial task cannot be allocated to an administrative officer of the
Court.’
[58]
For the same reason, it is necessary to set out the concluding parts
of the founding affidavit:
‘
The
Applicants’ decision for filing this Application has not been
made lightly. However, as set out above in detail, the Applicants

have indeed, in their view reasonable, the apprehension that the
judges allocated to this matter might not bring their impartial
minds
“
to
bear on the adjudication of this case”,
as
set out in the Constitutional Court
SARFU
case,
which judges might therefore be biased. The reasons for saying so are
as follows:
6.1
Following the clear expressions of the Applicants’ absolute
request to be heard in open court,
the judges still attempted to
accommodate the Appellant’s desire to argue not in open Court,
paragraphs 4.7 and 4.11
supra.
In doing so, the judges failed
to observe Article 13 of the
Code of Judicial Conduct
and
thereby casted doubt over their ability to impartially adjudicate the
matter.
6.2
The directive to proceed by virtual hearing was made before the
dispute over the continued existence
of the DMA Regulations had been
adjudicated. It is the reasonable suspicion of the Applicants that,
by doing so, the continued
existence of the Regulations had, in the
minds of the judges, already been accepted. In consequence, the
requirement that the minds
of impartial judges must be open to
arguments and presentations where at a later stage the dispute over
the Regulations would be
adjudicated, has in the view of the
Applicants not been fulfilled.
6.3
This apprehension by the Applicants is further exacerbated by the
Directive cited
supra
in which the Applicants would be
“permitted” to argue their constitutionally enshrined
right to have an open court
hearing, and were requested to do so by
way of a virtual hearing, planned by the Court to immediately precede
the one in which
to argue the appeal. For the Applicants to presume
the Court’s impartiality, they are in clear doubt as to how the
Court
would, even in the event of the judges suddenly being open to
the Applicants’ arguments, practically be able to abandon their

view point. If the judges had intended to adjudicate the matter with
an open mind they would have, in the least, set aside a separate,

earlier day for that virtual hearing in order to allow for the
litigants and themselves to potentially travel to the Court house
in
Bloemfontein.
6.4
Further to the above, from the letter by the Chief Registrar dated 20
May 2021 (Annexure “REC13”),
the Applicants reasonably
understand that the allocated judges have delegated their authority
to have made the Directive in question
or parts thereof to, possibly,
the Chief Registrar or other unknown third entity. Neither the
Constitution nor any other law the
Applicants are aware of, allow for
presiding officers, and here specifically judges of the Supreme Court
of Appeal, to make a decision
in any matter, inclusive of Directives,
by way of proxy. However, in terms of the judges’
Constitutional oath, all judges
are bound to “
uphold and
protect the Constitution and the human rights entrenched in it
”
and to “
administer justice to all persons alike without
fear, favour or prejudice.
” The Applicants, in finality,
humbly reaffirm that judges who are not impartial enough to at least
follow their own affirmation,
in their view might well lack the
impartiality to adjudicate this matter in an unbiased manner.’
[59]
The night before the appeal was due to be
heard, the HBF, which was represented in the
high court by an office
bearer, forwarded a set of heads of argument to the Registrar
electronically, to be brought to our attention.
On the morning before
the appeal was heard, we directed the Registrar to notify the HBF
that we would not receive the heads of
argument until we had an
explanation for their late filing. Important in this regard, the high
court in its judgment recorded that
‘in view of the lateness of
its attempted joinder to the applications and the fact that it
ultimately sought to enroll its
own application way out of time’,
the HBF should bear its own costs. It is necessary to record that in
the high court Mr
de Beer represented himself, and the LFN was
represented by an attorney, who has since withdrawn. Mr de Beer
obtained permission
from the President of this Court to represent the
LFN in the appeal. He also continued to represent himself.
[60]
When the Court convened on the morning of 26 May 2021, Mr de Beer, in
his personal
capacity and representing the LFN, joined the virtual
hearing using the Microsoft Teams platform. Mr Mothopeng, from the
HBF, also
appeared. We enquired from Mr de Beer whether he was
willing to make submissions concerning the propriety of a virtual
hearing
and whether he intended to move the application for our
recusal. After a fairly lengthy exchange with the Court, Mr de Beer
elected
not to participate in the virtual hearing. He repeatedly
stated that he would be shooting himself in the foot by doing so and
subverting
his argument about the unique nature of this case. Mr de
Beer and the LFN were offered the opportunity to advance argument on
the
propriety of virtual hearings, the recusal application and the
merits of this appeal whilst reserving their rights to later argue

that the entire process was irregular, but this offer was spurned.
[61]
Mr Mothopeng echoed Mr de Beer, and if what
the high court recorded concerning his foundation’s
submissions
on the merits is anything to go by, he once again aligned himself
with the respondents. Both were excused and counsel
for the Minister
and CASAC indicated that they were ready to advance submissions in
support of the appeal.
[62]
The recusal application was not formally
moved. Each member of the Court recorded that
they could conceive of
no reason
mero motu
to recuse him or herself.
[63]
Mr de Beer, the LFN and the HBF insisted
that this Court was required to conduct the oral
hearing in person,
and in a court in Bloemfontein, failing which we would not be acting
in accordance with our judicial duties.
Indeed, we would be making
manifest our disposition to prejudge the merits of the appeal before
us. If we did not accede to a hearing,
as required by Mr de Beer and
the LFN, then the appeal should, it was submitted, be postponed,
until such time as the court was
convened in accordance with their
stipulations.
[64]
Litigants may not specify the conditions
under which they are willing to have a matter
heard and adjudicated.
The Constitution, in terms of s 34, gives everyone the right to have
any dispute, that can be resolved by
the application of law, decided
in a fair public hearing before a court. Section 9(1)
(a)
of
the SC Act requires that all superior courts must be open to the
public. Mr de Beer and the LFN did not provide a basis as to
why the
convening of the oral hearing in this appeal, on a virtual platform,
to which the public enjoyed access, was not a fair
public hearing. No
one who sought access to the virtual platform was denied it. No
evidence was placed before us to suggest that
anyone who might have
wished to attend the hearing could not do so on the virtual platform.
The parties and their representatives
did appear on the virtual
platform, without evident detriment to the value of a public and open
hearing. In the prevailing circumstances,
as long as the parties,
their representatives, the public and the media enjoyed proper access
to the proceedings, the requirement
of s 32 of the SC Act, requiring
hearings in open court, are substantially satisfied. For similar
reasons, the fact that article
9 of the Judicial Code of Conduct
states that, unless special circumstances require otherwise, a judge
must conduct judicial proceedings
in open court, is not a stipulation
traduced by open proceedings conducted on a virtual platform. Absent
special circumstances,
proceedings are no less open because they take
place on a virtual platform. Indeed, such proceedings may be more
accessible to
the public, and no less open to the parties. As
indicated above, the directives issued by the Chief Justice and the
President of
this Court, having been agreed by the heads of court,
although premised on the national state of disaster, were founded on
the
power of the judicial authority provided for in ss 165 and 173 of
the Constitution and ss 8(3) and 8(4) of the SC Act. This was
done to
deal with prevailing circumstances and to preserve and advance open
justice. The alternative would be for the administration
of justice
to grind to a halt, thus negating open justice.
[65]
That being so, it does appear that Mr de Beer and the LFN took up
their position
simply because they object to any revision as to how
oral hearings are to be conducted that is responsive to COVID-19.
That, however,
is not a relevant consideration in determining whether
a hearing should take place on a virtual platform. If the virtual
hearing
proposed to the parties gave rise to no infringement of their
right to a fair, open and public hearing, then it was open to this

Court to regulate its own process. A party cannot dictate how the
proceedings will be conducted. That is a matter for the court
to
determine. Nor may a party use its failure to secure the form of
proceedings it
favours
as a tendentious
basis for claiming that the court may not adjudicate the merits of
the matter, much less to level the unwarranted
accusation that the
court is biased. Yet this is what Mr de Beer, the LFN, and belatedly,
the HBF (which had not actively participated
in the appeal until the
day of the hearing) sought to do. These efforts to frustrate the
proceedings cannot be countenanced.
[66]
This Court, as indicated in the note to the
parties, has for longer than a year successfully
conducted virtual
hearings. Parties have consistently been engaged on whether they
objected to a virtual hearing and were required
to indicate the basis
of their objection and to set out the prejudice they considered might
attach to a virtual hearing. The respondents
were afforded that
opportunity and were required to indicate which of their rights would
be attenuated. The respondents were adamant,
emphatic and
uncompromising. They insisted that they would attend physically at
court and indicated that they would not adhere
to safety protocols in
the event that these protocols were enforced. Save for repeating that
this case was unique, we were offered
nothing by the respondents in
writing prior to the hearing, nor during Mr de Beer’s
appearance on the virtual platform, indicating
what prejudice they
would suffer in the event of a virtual hearing. No argument was
presented on the attenuation of rights, if
any.
[67]
This Court acted in accordance with the
practice directives of the Chief Justice and in
line with the
practice directives of the President of this Court. In seeking to
engage with the respondents, we were met with obstinacy,
and
unfounded and contemptuous accusations. Our hearings on a virtual
platform are open to the public and the media. Our experience
is that
more people ‘attend’ virtual hearings than they do when
the court is in session in Bloemfontein. On the day
of the hearing of
this appeal, the national broadcaster, the South Africa Broadcasting
Corporation, obtained permission to record
and livestream the
hearing. Other media outlets attended the virtual hearing. Judgments
are handed down electronically by circulation
to the parties’
legal representatives by email. It is then published on this Court’s
website and released to SAFLII.
In short, this is a wider
distribution and publication than is conventionally the case when a
judgment is handed down in court
in Bloemfontein, typically with only
junior counsel in attendance to note it. In addition, a media summary
is published on the
website.
[68]
As indicated in the note to the parties,
this was an appeal with a full record and the
heads of argument were
available to the judges hearing the appeal. It is in this context
that prejudice, if asserted, has to be
measured. No prejudice was
claimed. More significantly, the directives referred to above were
premised on the provisions of ss
165 and 173 of the Constitution and
the applicable provisions of the SC Act. They were agreed to by the
heads of court and adhered
to by judges. The measures set out in the
directives were to ensure the safety of the public, legal
representatives, judges and
support staff. They have not been
challenged and set aside.
[69]
The high court has on at least two occasions
pronounced on the legality of virtual hearings.
In
De Villiers v
De Villiers
, the court said the following:
‘
One
of the methods to contain the spread of the virus is conducting court
proceedings on a virtual platform. This method has the
obvious
benefit of limiting the chances of exposing oneself (that is all
persons whose appearance/presence is pertinent to said
court
proceedings, be it Judges, court staff, legal fraternity, witnesses,
interested parties, media, etc.) unnecessarily to contracting
the
virus.’
[13]
In
that case, a litigant insisted on an ‘open court’
hearing, but could not show why a virtual hearing would not result
in
a fair hearing.
[70]
In the present circumstances, we can discern
no reason why a virtual hearing for the purposes
of hearing oral
argument on any aspect of this appeal would attenuate the open
justice principle. Neither the respondents nor the
HBF referenced any
prejudice they would suffer. No basis was offered as to why a
deviation from the directives issued by the Chief
Justice and the
President of this Court was warranted. Virtual hearings have been
utilised by this Court for more than a year to
hear oral argument,
without any discernable detriment to fairness or open justice. We
decided in consequence to proceed with the
oral hearing on the
virtual platform.
[71]
The respondents and the HBF having been
excused, since they declined to address this Court
on any issue, even
under reservation of their rights, the Minister and CASAC were ready
to make submissions and we conducted the
appeal virtually and
received their oral submissions.
Points
in limine
[72]
Before turning to the substantive merits of
the appeal, it is necessary first to turn
to a consideration of four
points
in limine
raised by the respondents in their heads of argument. First, it will
be recalled that the Minister obtained limited leave to appeal
from
the high court. The scope of the appeal was expanded by the granting
of leave by this Court on petition to it. It is contended
that,
having obtained leave to appeal from this Court on 11 September 2020,
the Minister failed to timeously file her amended notice
of appeal by
11 October 2020, in terms of rule 7(1)
(b)
of this Court’s rules. Accordingly, so the contention
proceeded, the appeal against those parts of the order had lapsed.
To
cure the failure, the Minister sought condonation.
It was
submitted on her behalf that the oversight was fully cured on
4 November 2020 by the filing of heads of argument that
covered
the entirety of the orders granted by the high court. The respondents
could thus not have been under any illusion as to
the full extent of
the appeal. In any event, they responded thereto.
[73]
In the exercise of this Court’s
discretion, consideration has been given to all
the relevant factors,
including the degree of non-compliance with the rules, the
explanation for the failure to comply with the
rules, the prospects
of success on appeal, prejudice to the respondent and the importance
of the case.
[14]
Upon consideration of the relevant factors, condonation is granted.
[74]
The respondents’ second point
in
limine
was cast as follows. The high court declared the
regulations unconstitutional and invalid. The high court suspended
its declaration
of invalidity until such time as the Minister
reviewed, amended and republished the regulations, ‘with due
consideration
to the limitation each regulation has on the rights
guaranteed in the Bill of Rights contained in the Constitution’.
The
Minister was afforded 14 business days from the date of the high
court’s order to comply with the direction to review, amend
and
republish the regulations. The respondents contended that the
Minister’s application for leave to appeal and the grant
of
that application did not suspend the order of invalidity made by the
high court. Proceeding from this premise, the 14-business-day
period
permitted by the high court having run out, the suspension of the
order of invalidity came to an end. Consequently, by reason
of the
doctrine of objective constitutional invalidity, the regulations are
invalid and must be taken to be a nullity. Without
regulations, the
order appealed against has no content, and the appeal is rendered
moot.
[75]
The place of the doctrine of objective
constitutional invalidity in our law does not admit
of simple
application, because the Constitutional Court has recognised that
what is done before a law or an executive or administrative
action is
set aside exists and cannot be ignored on the basis of its
invalidity.
[15]
These complexities do not require further consideration in this
matter. Whether the application for leave to appeal and its grant

suspended the declaration of invalidity, pending the determination of
the appeal, is not a matter we need to decide. Even if the

respondents were correct,
arguendo,
that once the Minister
failed to take advantage of the suspension granted under the order of
the high court, the declaration of
invalidity stood, that does not
vacate the Minister’s right to have the question of validity
decided by this Court on appeal.
It is the outcome of the appeal
before this Court that will ultimately determine the validity of the
regulations. If we should
find that the high court’s order of
invalidity was granted in error, then the effect of our order will be
to recognise the
validity of the regulations
ex
tunc
. The effect of
such an order by this Court will not thereby resuscitate regulations
that were, since the declaration of the high
court, invalid. Such an
order will determine that the regulations have always been valid. The
issue as to the validity of the regulations
thus remains very much a
live issue before this Court. The appeal before us is not moot.
[76]
The respondents’ third point
in
limine
was that the Minister could not appeal the high court’s
order, because it is an interim order, and hence it is not
appealable.
The
declaration of invalidity was conjoined,
so it was argued, to an
order that the Minister review and amend the regulations, and then
report upon her compliance to the high
court. Until such time as the
court had discharged its supervisory competence as to compliance, so
it was contended, the high court’s
order is not final, cannot
be appealed and the Minister’s appeal is thus premature.
[77]
The order of the high court cannot be interpreted as an
interim order.                    The

declaration of invalidity is final. The effect of the order is to
strike down the regulations. The declaratory order of invalidity
was
not framed so as to render it subject to reconsideration by the high
court. What the high court endeavoured to do was to regulate
the
consequence of its final declaration of invalidity. This it did by
combining a regime of suspension with an obligation upon
the Minister
to review, amend and publish the regulations anew within 14 business
days, and then report upon her compliance to
the high court. The
coherence and validity of such a regime is doubtful, even under the
wide remit of s 172(1)
(b)
of the Constitution. But nothing of
that regime renders the declaration of invalidity an interim order.
It is a final order that
was permissibly appealed to this Court. The
orders requiring the Minister to review the regulations and to report
thereon to the
high court were premised on the invalidity of the
impugned regulations.      A successful
appeal against
the order of invalidity would necessarily lead to a
setting aside of the order as a whole.
[78]
The respondents’ fourth point
in
limine
was that the Minister acquiesced in the high court’s
order and her appeal, as a result, is subject to pre-emption. The
respondents
rely upon submissions in the Minister’s heads of
argument before this Court that the regulations, that were the
subject of
the high court’s order, have since been revised and
amended. It is explained in the Minister’s heads of argument
that
the effect of the most recent amendments was to place the
country on Alert Level 1, and the majority of the regulations that
the
high court declared invalid are no longer in force.
[79]
In
Avusa
Publishing,
[16]
this Court reiterated the well-established principle that a party who
unequivocally conveys an intention to be bound by a judgment
abandons
their right to appeal. The Minister however did no such thing. The
amendment of the regulations was motivated by the changes
required in
response to the COVID-19 pandemic in the country. The amendments did
not take place in compliance with the high court’s
order. It
follows that there was no acquiescence on the part of the Minister,
and hence no pre-emption of the appeal.
[80]
The respondents’ points
in limine
therefore
cannot be sustained. We proceed to consider the merits of the appeal.
The
merits
[81]
On appeal, the Minister contended that: first, the high
court strayed beyond the pleadings; alternatively,
second, the
respondents had not properly pleaded the constitutional attack, which
was upheld by the high court and the attack based
on the Bill of
Rights was too vague for the Minister to answer; third, the
respondents had not raised a proper rationality attack
and, in any
event, the high court’s application of the rationality test was
fundamentally flawed; and, fourth, the high court’s
orders were
impermissibly vague.
As
to the first
[82]
In the notice of motion, a prayer was sought that the proclamation of
the national state of disaster
was unconstitutional, unlawful and
invalid. The high court dismissed that challenge. The respondents
were refused leave to cross-appeal
against the high court’s
decision in this respect. They were thus confined to the submissions
made in their heads of argument
concerning the validity of the
regulations that followed. It is to the appeal of the high court’s
order in that regard that
we now turn. Although the Minister first
issued regulations on 18 March 2020, those were amended a number of
times and were then
repealed on 29 April 2020, when the Minister
published the Level 4 regulations. On 28 May 2020, the very day on
which the matter
was argued before the high court, the Minister once
again amended the regulations to include a new chapter 4 to govern
Alert Level
3 (the Level 3 regulations). When the application was
launched, the Level 3 regulations had not yet been promulgated.
Unsurprisingly
therefore, the founding affidavit made no reference
whatsoever to them. On the contrary, the founding affidavit referred
to the
Level 4 regulations as the ‘new regulations’.
Accordingly, it was impermissible for the high court to have
considered
and made a determination in respect of the Level 3
regulations, which were not properly before the high court. What is
more, it
arrived at its conclusion without affording the Minister an
opportunity to be heard. The breach by the high court of something so

fundamental as the right to be heard taints the high court’s
judgment.
[83]
The high court specifically considered the six Level 3 provisions
mentioned earlier
in this judgment. It held that those six provisions
were unconstitutional and invalid on the grounds that they were
irrational
and unjustifiably limited fundamental rights. On the basis
of these findings in respect of the six specific regulations, the
high
court declared invalid, not only those six regulations, but all
the regulations promulgated until the date of judgment (save for

certain specified exceptions). Extrapolating from its conclusion that
the six specific provisions did not survive scrutiny, the
high court
proceeded to hold that all the regulations, including all of the
Level 3 regulations (save for the specified exceptions),
fell to be
struck down. But, the Level 3 regulations were not before the court
at all. The application was confined to the regulations
that were
current when it was launched; namely, all of the regulations up to
and including the Level 4 regulations promulgated
on 29 April 2020.
Those are the regulations that the Minister was called upon to
defend. The Minister’s answering affidavit
was filed on 26 May
2020, before the promulgation of the Level 3 regulations. The
Minister was accordingly never called upon to
defend the Level 3
regulations. The Minister was not afforded an opportunity to do so.
Nor was it permissible for the high court
to strike down regulations
which it had not examined for want of legality. Extrapolation may
take place in drawing factual conclusions
on the basis of inference.
The legal invalidity of a body of regulations cannot be determined on
the basis that since certain specific
regulations are found wanting,
all such regulations stand condemned.
[84]
At the hearing of the matter, neither the high court nor the parties
had even so
much as seen the Level 3 regulations. Indeed, the high
court had observed that the Level 3 regulations ‘have neither
been
placed before me nor have the parties addressed me on them’.
That notwithstanding, the high court appropriated to itself the
right
to consider and make a determination on the six Level 3 provisions.
The judgment thus went beyond the respondent’s
pleaded case. It
goes without saying that
any
judgment should be the product of thorough consideration of,
inter
alia
, forensically
tested argument from both sides on issues that are necessary for the
decision of the case.
[17]
It
ought to follow that on the strength of this fundamental error alone,
the high court’s orders fall to be set aside.
[85]
What is more, even a superficial comparison reveals that the order
which ultimately issued differed
markedly from the compendious relief
sought. First, the declaration of the national state of disaster was
not set aside. Second,
regulations which had not been dealt with in
the affidavits and had not yet come into force were set aside. In
truth, the respondents
obtained very little by way of relief of what
had initially been sought and a great deal more than had actually
been sought. The
high court ranged beyond what had been sought by the
respondents. Thus, not only was the Minister denied a proper hearing,
but
the respondents were granted relief that had never been sought.
In that sense, not only did the judgment suffer a failure of proper

judicial reasoning, but it also failed to
recognise
and
respect – as it was constitutionally obliged to do – the
limits of the judicial function, and hence the separation
of
powers.
[18]
[86]
As it was put in
National Director of Public Prosecutions v
Zuma
:
‘
It
is crucial to provide an exposition of the functions of a judicial
officer because, for reasons that are impossible to fathom,
the court
below failed to adhere to some basic tenets, in particular that in
exercising the judicial function judges are themselves
constrained by
the law. The underlying theme of the court’s judgment was that
the judiciary is independent; that judges are
no respecters of
persons; and that they stand between the subject and any attempted
encroachments on liberties by the executive
(para 161-162).
This commendable
approach was unfortunately subverted by a failure to confine the
judgment to the issues before the court; by deciding
matters that
were not germane or relevant; by creating new factual issues; by
making gratuitous findings against persons who were
not called upon
to defend themselves; by failing to distinguish between allegation,
fact and suspicion; and by transgressing the
proper boundaries
between judicial, executive and legislative functions.
Judges
as members of civil society are entitled to hold views about issues
of the day and they may express their views provided
they do not
compromise their judicial office. . ..’
[19]
[87]
Likewise, in
Fischer v Ramahlele,
it was stated:
‘
Turning
then to the nature of civil litigation in our adversarial system it
is for the parties, either in the pleadings or affidavits,
which
serve the function of both pleadings and evidence, to set out
and define the nature of their dispute and it is for the
court to
adjudicate upon those issues. That is so even where the dispute
involves an issue pertaining to the basic human rights
guaranteed by
our Constitution, for “it is impermissible for a party to rely
on a constitutional complaint that was not pleaded.” There

are cases where the parties may expand those issues by the way in
which they conduct the proceedings. There may also be instances

where the court may
mero
motu
raise a
question of law that emerges fully from the evidence and is necessary
for the decision of the case. That is subject
to the proviso that no
prejudice will be caused to any party by its being decided. Beyond
that it is for the parties to identify
the dispute and for the court
to determine that dispute and that dispute alone.
It
is not for the court to raise new issues not traversed in the
pleadings or affidavits, however interesting or important they
may
seem to it, and to insist that the parties deal with them. The
parties may have their own reasons for not raising those
issues. A
court may sometimes suggest a line of argument or an approach to a
case that has not previously occurred to the parties. However,

it is then for the parties to determine whether they wish to adopt
the new point. They may choose not to do so because of its
implications for the further conduct of the proceedings, such as an
adjournment or the need to amend pleadings or call additional

evidence. They may feel that their case is sufficiently strong as it
stands to require no supplementation. They may simply wish
the issues
already identified to be determined because they are relevant to
future matters and the relationship between the parties.
That is for
them to decide and not the court. If they wish to stand by the
issues they have formulated, the court may not
raise new ones or
compel them to deal with matters other than those they have
formulated in the pleadings or affidavits.
This
last point is of great importance because it calls for judicial
restraint. . . .’
[20]
[88]
The foundation of the respondents’ case was based upon sweeping
generalisations and broad
conclusions. In the first place, the
respondents did not file any confirmatory affidavits from those
persons who had allegedly
complained to Mr de Beer about the
hardships that they were experiencing. In the second place, Mr de
Beer simply annexed various
reports to his affidavit (the provenance
of which was not always clear), in support of what may somewhat
loosely be described as
COVID-19 denialism. As no affidavits
accompanied these annexures, and Mr de Beer lacked the necessary
expertise to testify to the
truth of their content, the foundational
hypothesis sought to be advanced by the respondents was unsupported.
Regrettably, the
high court simply failed to consider either the
admissibility of the allegations advanced by Mr de Beer or their
evidential weight,
if any. Had it done so it would have arrived at
the conclusion that, even on their own version, no cognisable case
had been made
out by the respondents.
[89]
In the circumstances set out above, no answer, in truth, was called
for by the Minister. That
ought at the outset to have been
appreciated by the high court. It found for the respondents on a case
not made out in the founding
affidavit and based largely on dispersed
and inadmissible assertions and its own speculation as to how the
regulations ought to
have been framed.
[90]
The Minister was compelled to deal, as best she could, with a case
that was framed in almost
unintelligible terms. Her explanations as
to why she was moved to declare a national state of disaster and that
she took scientific
advice before formulating the regulations were
not meaningfully contradicted.
[91]
It is important to emphasise that the respondents had Uniform rule
53, which exists to facilitate
applications for review, at their
disposal.
[21]
It exists to assist an applicant for review and, in the
constitutional era, it serves to advance accountability and
transparency.
As explained in
Jockey
Club of South Africa v Forbes
:
‘
Not
infrequently the private citizen is faced with an administrative or
quasi-judicial decision adversely affecting his rights,
but has no
access to the record of the relevant proceedings nor any knowledge of
the reasons founding such decision. Were it not
for Rule 53 he would
be obliged to launch review proceedings in the dark and, depending on
the answering affidavit(s) of the respondent(s),
he could then apply
to amend his notice of motion and to supplement his founding
affidavit. Manifestly the procedure created by
the Rule is to his
advantage in that it obviates the delay and expense of an application
to amend and provides him with access
to the record. In terms of para
(b)
of subrule (1) the official concerned is obliged to forward the
record to the Registrar and to notify the applicant that he has
done
so. Subrule (3) then affords the applicant access to the record. (It
also obliges him to make certified copies of the relevant
part
thereof available to the Court and his opponents. The Rule thus
confers the benefit that all the parties have identical copies
of the
relevant documents on which to draft their affidavits and that they
and the Court have identical papers before them when
the matter comes
to Court.) More important in the present context is subrule (4),
which enables the applicant, as of right and
without the expense and
delay of an interlocutory application, to “amend, add to or
vary the terms of his notice of motion
and supplement the supporting
affidavit”. Subrule (5) in turn regulates the procedure to be
adopted by prospective opponents
and the succeeding subrules import
the usual procedure under Rule 6 for the filing of the applicant’s
reply and for set down.’
[22]
[92]
Thus, the purpose
of rule 53 is to ‘facilitate and regulate applications for
review’ and to promote constitutional values.
[23]
In
terms of rule 53, t
he
production of the administrative record is usually necessary for a
court to undertake the task of determining the regularity
of the
administrative action sought to be impugned.
[24]
Without the record, a court will often be hampered in its ability to
perform its constitutionally entrenched review function.
[25]
As it was put by the Constitutional Court in
Helen
Suzman Foundation v Judicial Service Commission
:
‘
The
filing of the full record furthers an applicant’s right of
access to court by ensuring both that the court has the relevant

information before it and that there is equality of arms between the
person challenging a decision and the decision-maker. Equality
of
arms requires that parties to the review proceedings must each have a
reasonable opportunity of presenting their case under
conditions that
do not place them at a substantial disadvantage
vis-à-vis
their
opponents. This requires that “all the parties have identical
copies of the relevant documents on which to draft their
affidavits
and that they and the court have identical papers before them when
the matter comes to court”.’
[26]
[93]
When an applicant in review proceedings files its supplementary
affidavit, after having had sight
of the record, it is in effect
fully stating its case for the first time.
[27]
In
eschewing rule 53, the respondents
placed both themselves and the
court at a significant disadvantage. The rule 53 record helps shed
light on what happened,
why
it happened and it may
undermine
ex
post facto
justifications offered by the decision-maker of the decision under
review.
[28]
The respondents launched review proceedings in the dark ‘against
an opponent with perfect night vision’, in that the
Minister
knew exactly what information had been considered.
[29]
The respondents could not contend with much insight that ‘the
decision was irrational; that irrelevant considerations were
taken
into account; or that the decision was taken arbitrarily or
capriciously’.
[30]
There was thus little, if anything, to gainsay the version advanced
on behalf of the Minister. All the more reason why the Minister’s

answer, which elicited no more than a rather elliptical response in
reply, had to carry the day.
[94]
It is so that the application in the high court was brought on an
urgent basis.      This
may impose some
constraints on the production of a full record. But the record is of
importance, not only to the parties, but for
the court that must
exercise its review jurisdiction. Every effort should be made to
secure the record, or at least, in urgent
cases, the most salient
parts of the record. In this the parties have a duty to co-operate.
An

applicant who proceeds without the benefit of the record may well do
so at its own peril. Rule 53 has to be read in conjunction
with
Uniform rule 6, the long form of which can be departed from in cases
of urgency and it does not have to be coupled with a
prayer for
interim relief.
[31]
There appears to have been no informal request by the respondents for
a record of the decision. The replying affidavit was filed
almost a
full two weeks after the application was launched, which would have
left sufficient time for a perusal of the record if
it had either
been sought informally or obtained by way of a preceding urgent
interlocutory in the event that it had been refused.
As
to the second
[95]
The respondents did not plead, or in any event properly plead, the
constitutional
attack that was upheld by the high court.
Constitutional questions ought to be approached by litigants and
courts alike with the
appropriate degree of care. The Constitutional
Court has repeatedly warned that constitutional attacks on the
validity of legislation
must be pleaded explicitly and with
specificity to enable the State to know what case it has to meet and
to adduce the evidence
necessary to do so. Ngcobo J put the
proposition as follows:
‘
Parties
who challenge the constitutionality of a provision in a statute must
raise the constitutionality of the provisions sought
to be challenged
at the time they institute legal proceedings. In addition, a party
must place before the court information relevant
to the determination
of the impugned provisions. Similarly, a party seeking to justify a
limitation of a constitutional right must
place before the court
information relevant to the issue of justification.      I
would emphasise that
all this information must be placed before the
court of first instance. The placing of the relevant information is
necessary to
warn the other party of the case it will have to meet,
so as [to] allow it the opportunity to present factual material and
legal
argument to meet that case. it is not sufficient for a party to
raise the constitutionality of a statute only in the heads of
argument,
without laying a proper foundation for such a challenge in
the papers or the pleadings. The other party must be left in no doubt

as to the nature of the case it has to meet and relief that is
sought.’
[32]
[96]
In
Public Servants Association obo Ubogu v Head of Department of
Health, Gauteng and Others,
the Constitutional Court spoke thus:
‘
In
Garvas
,
Jafta J (albeit the minority) emphasised the importance of accuracy
in the pleadings. He remarked:
“
Orders
of constitutional invalidity have a reach that extends beyond the
parties to a case where a claim for the declaration of
invalidity is
made. But more importantly these orders intrude, albeit in a
constitutionally permissible manner, into the domain
of the
legislature. The granting of these orders is a serious matter and
they should be issued only where the requirements of the
Constitution
for a review of the exercise of legislative powers have been met.
.
. .
Holding
parties to pleadings is not pedantry. It is an integral part of the
principle of legal certainty which is an element of
the rule of law,
one of the values on which our Constitution is founded. Every party
contemplating a constitutional challenge should
know the requirements
it needs to satisfy and every other party likely to be affected by
the relief sought must know precisely
the case it is expected to
meet.”’
[33]
[97]
Before addressing pertinently the question of whether there was a
discernible and appropriate
Bill of Rights challenge, the reader is
asked to pause to consider, after having regard to the relevant parts
of the respondents’
founding affidavit, quoted above, how the
Minister could be expected to respond intelligibly to the case sought
to be advanced
by the respondents. Had a properly pleaded case been
advanced, no doubt, the Minister would have been expected to put up
the necessary
evidence to justify the regulations.
[98]
The respondents made two fleeting references in the founding
affidavit to an attack under the
Bill of Rights. Paragraph 3.11
stated: ‘[i]n general, these regulations violated almost all
clauses in the Bill of Rights
. . .’. Later, para 10 added:
‘
RE
PARAGRAPH
3.11: BILL OF RIGHTS
We
specifically challenged the right of the [Minister] to have
implemented law which had extensively violated our Bill of Rights
in
various ways which we shall argue at the hearing.’
This
constituted the sum total of the Bill of Rights attack and, as should
be evident, was far from the degree of specificity that
is required
when pleading a constitutional attack.
[99]
At the very least it was for the respondents to allege: (a) each
specific regulation sought to
be impugned; (b) which constitutional
right was alleged to be violated by the impugned regulation; and, (c)
how the regulation
allegedly infringed the specific right. Absent
this, it could hardly have been expected of the Minister to
appreciate the scope
of the challenge and put up the necessary
evidence to justify the regulation. It was not for the Minister to
justify each of the
regulations in a vacuum.
[100]
This was not merely a matter of form or ‘elegance’ as the
high court suggested.
The
high court was willing to see a case where there was none and
unjustifiably excused the manner in which it was framed. To sum
up on
this aspect of the case: The case put forward by the respondents was
wholly inadequate. There was no cognisable case to answer.
The
respondents ignored the fundamental principle that an applicant’s
case must be set out with sufficient specificity, clarity
and
supporting admissible evidence so that the functionary or repository
of power knows the case that has to be met. The
dicta
of the
Constitutional Court on how a constitutional challenge should be
couched were ignored. That too ought to have been clear
to the high
court.
As
to the third:
[101]
The exercise of public power, including the decision to promulgate
regulations under s 27(2) of the Act must have
a rational basis. In
Democratic Alliance v
President of South Africa
,
[34]
the Constitutional Court framed rationality review thus:
‘
The
reasoning in these cases shows that rationality review is really
concerned with the evaluation of a relationship between means
and
ends: the relationship, connection or link (as it is variously
referred to) between the means employed to achieve a particular

purpose on the one hand and the purpose or end itself. The aim of the
evaluation of the relationship is not to determine whether
some means
will achieve the purpose better than others but only whether the
means employed are rationally related to the purpose
for which the
power was conferred. Once there is a rational relationship, an
executive decision of the kind with which we are concerned
is
constitutional.’
Rationality
review applies both to the process by which a decision is made and to
the decision itself. But an enquiry into rationality,
as this Court
observed in
Minister of
Home Affairs and Others v Scalabrini Centre, Cape Town and Others
,
‘can be a slippery path that might easily take one
inadvertently into assessing whether the decision was one the court
considers to be reasonable’.
[35]
[102]
Here again, there was no properly pleaded case. There was a complaint
that the proclamation of the national state
of disaster was
irrational and based on incorrect advice and unreliable information.
There is no reference, in the summary set
out in para 3 of the
founding affidavit, to a cause of action based on the alleged
irrationality of the regulations, nor does the
rest of the founding
affidavit raise such an attack in cognisable form.                 A

rationality attack also needs to be properly pleaded so that the
functionary knows what he or she is being called upon to explain.

Despite the fact that no such attack was pleaded, supposed
irrationality was at the heart of the high court’s condemnation

of those particular regulations which it specifically considered.
[103]
However, and even if a rationality attack were to have been open to
the present respondents
in the high court, it had to be approached in
accordance with the Constitutional Court’s rationality
jurisprudence as encapsulated
inter
alia
in the passage
cited above from
Democratic
Alliance
.
[36]
The high court was required to assess each regulation against the
purpose and to determine whether there was a rational link between

that regulation and the stated purpose of curbing the spread of
COVID-19. But, the high court did not do this. Although the high

court correctly stated the rationality test in paras 6.1 to 6.4 of
its judgment, it did not thereafter apply it in para 7 when

subjecting specific measures in the regulations to the rationality
test. First, in each case the high court deduced irrationality
from
the fact that some other conduct, thought by the court to be equally
or more worthy of restriction, had not been restricted.
Second,
instead of limiting itself to an enquiry into the presence or absence
of a rational connection between the measure and
its purpose, the
court strayed into considerations as to whether other (and in the
court’s opinion, evidently better) means
might have been
adopted.
[104]
The first error can be illustrated with reference to the high court’s
first case of supposed
irrationality. Regulation 33(1) of the Level 3
regulations confined people to their homes except for certain
permitted purposes.
This meant
inter alia
that loved ones
could not visit a dying person at home. This was said by the high
court to be irrational on the basis that once
the person died,
regulation 35 permitted up to 50 people to attend the deceased’s
funeral. In terms of the objective rationality
test, the high court
should have asked whether the restrictions on movement contained in
regulation 33(1) were rationally connected
with the purpose for which
the measure was enacted, namely to restrict the spread of the virus.
If the answer to this question
was yes (as we think it should have
been), regulation 33(1) was not deprived of objective rationality
merely because regulation
35 permitted up to 50 people to attend a
funeral. This is so even if there was a case to be made that the
regulations should have
prohibited funerals or restricted attendance
to a smaller number so as to reduce the spread of COVID-19 (we do not
suggest that
the Minister should have done so). That a regulatory
scheme is under-inclusive does not make specific regulations or the
regulatory
scheme as a whole irrational, under the legal test for
irrationality. Such a scheme may be open to challenge on the grounds
of
arbitrariness or unfair discrimination. But that was not the case
brought by the respondents.
[105]
The second error can be illustrated with reference to the high
court’s fifth case of supposed irrationality.
Regulation 35,
while permitting funerals with up to 50 attendees, prohibited night
vigils. The high court asked itself, rhetorically,
why night vigils
were wholly banned if the purpose was to prevent the spread of the
virus through close proximity. Why not rather
impose ‘time,
distance and closed casket prohibitions’? Why not allow a vigil
without the body of the deceased? Here
the high court regarded the
prohibition of night vigils as irrational because, in the court’s
opinion, there were more appropriate
(ie less restrictive) ways of
achieving the lawmaker’s purpose. That is not an application of
the rationality test. It engages
in the very enquiry that the
rationality test precludes, that is, whether the court can craft a
better regulation than the Minister
did. The high court should have
asked itself whether prohibiting night vigils is rationally related
to the purpose of restricting
the spread of the virus, not whether a
more limited restriction might also have achieved that purpose.
[106]
These legal errors permeated the high court’s findings in
respect of the validity of the regulations. In
that, the approach was
also fatally flawed. The high court did not properly apply the
rationality test to each of the impugned
regulations. Instead, it
embarked upon a comparative exercise and for the rest, it relied upon
conjecture and speculation. It lost
from sight that the question is
not whether some other measure might better achieve the purpose or
might be more appropriate, only
whether the measure actually employed
is rationally related to the purpose.
As
to the fourth:
[107]
An order of
court binds all those to whom it applies. It must therefore be
written in a clear and accessible manner. Here, aside
from the first
order striking down the regulations, the remaining orders are vague.
Paragraphs 2 and 3 of the court order require
the Minister to
‘review, amend and republish’ all of the regulations,
save for the five that have been specified. These
orders do not tell
the Minister what is required of her to comply. More particularly,
they do not indicate which regulations in
particular should be
amended, how and in what respects. The Minister is thus left to
speculate as to the respects in which the
regulations are
unconstitutional and how that should be remedied. In the judgment on
the application for leave to appeal, the court
expressed the view
that it is a ‘simple exercise’ to review the regulations
and revise them so as to ‘remove
the irrationalities’.
But that is easier said than done, especially where the Minister has
been left in the dark as to the
basis upon which each of the
regulations have been held to be irrational and, accordingly, what
manner of amendment would cure
the defect.
[108]
As it was put in
Minister of Water and Environmental Affairs v
Kloof Conservancy:
‘
Moreover,
interrogating the suggestion appears to lead one to the conclusion
that the order is indeterminate, open ended and irredeemably
vague.
For, it seems impossible for the Minister to know with any measure of
confidence what she is obliged by the order of court
to do. Here, the
court offers the Minister no guidance as to when she is required to
step in. Litigants who are required to
comply with court orders,
at the risk otherwise of being in contempt if they do not, must know
with clarity what is required of
them . . .  Courts are entitled
to operate on the assumption that government will comply with orders
of court . . . But, in
order to do that, it has to know where its
obligations start and end. It does seem to me to be difficult in the
extreme for the
Minister to know with any measure of confidence
precisely what steps she is required to take to comply with the order
of the high
court.’
[37]
Other
challenges
[109]
Finally, because it was persisted with in the respondents’
heads of argument, we deal with the question
of whether the Minister
was required to obtain approval for the regulations from the NCOP. In
this regard, it is necessary to have
regard first, to s 27(2) of the
Act, which bestows on the Minister very specific regulation-making
powers after declaring a national
state of disaster. These involve,
inter alia
, the employment of resources, the release of
personnel of a national organ of state for rendering emergency
services and regulating
the movement of persons, traffic and goods.
That subsection contains a list of matters that is exclusively within
the Minister’s
remit.
[110]
The provisions of the Act following upon s 27 resort under Chapter 4
entitled ‘Provincial Disaster Management’
and set out a
provincial disaster management framework. It obliges each province to
establish a disaster management centre and
sets out the powers and
duties of such centres. Section 32 of the Act provides that a
provincial disaster management centre must
upon request assist the
National Centre. Section 33 provides that ‘[a] provincial
disaster management centre, to the extent
that it has the capacity,
must give guidance to organs of state, the private sector,
non-governmental organisations, communities
and individuals in the
province to assess and prevent or reduce the risk of disasters’.
Section 33(1)
(a)
sets
out the ways and means of doing so. So too, a provincial disaster
management centre has a duty to monitor, measure performance
and
evaluate disaster management plans and prevention, mitigation and
response initiatives. Part 3 of Chapter 4 of the Act deals
with the
powers and duties of provincial government. Section 40 is
significant. It states that ‘[t]he executive of a province
is
primarily responsible for the co-ordination and management of
provincial disasters that occur in the province . . .’ and
to
that end must employ existing legislation and contingency
arrangements as ‘augmented by regulations or directions made
or
issued in terms of          s
41(2)’.
[38]
In terms of the last-mentioned subsection, the Premier of a Province
may, after a consultation process, declare a provincial state
of
disaster and may then make regulations of the kind that the Minister
may make in terms of s 27.
[111]
Subsections 59(1) and (4), on the other hand, which the respondents
contend should be read with s 146 of the Constitution,
read as
follows:
‘
59.
Regulations.—
(1)
The Minister may make regulations not inconsistent with this Act—
(a)
concerning any matter
that—
(i)
may or must be prescribed in terms of a provision of this Act; or
(ii)
is necessary to prescribe for the effective carrying out of the
objects of this Act;
(b)
providing
for the payment, out of moneys appropriated by Parliament for this
purpose, of compensation to any person, or the dependants
of any
person, whose death, bodily injury or disablement results from any
event occurring in the course of the performance of any
function
entrusted to such person in terms of this Act;
(c)
concerning the focus
areas of the national disaster management education, training and
research frameworks; and
(d)
concerning the
declaration and classification of disasters.
.
. .
(4)
Any regulations made by the Minister in terms of subsection (1) must
be referred to the National Council of Provinces
for purposes of
section 146(6) of the Constitution.’
[112]
Section 59(1), on the face of it, appears to provide for regulations
by the Minister of a kind not specifically
catered for elsewhere in
the Act. It is true that the opening part of s 59(1) is couched in
fairly broad terms. However, as one
proceeds to subsequent
subsections, such as subsecs 59(1)
(b)
,
(c)
and
(d)
,
it is clear that they cater for specific areas not catered for under
s 27. So, for example, s 59(1)
(b)
provides for compensation
for bodily injury, disability or death resulting from the performance
of any function entrusted to any
person in terms of the Act. Section
59(1)
(c)
concerns the focus areas of the national disaster
management education, training and research framework. It is in
relation to these
areas that regulations by the Minister, in terms of
s 59(4), must be referred to the NCOP for purposes of s 146(6) of the
Constitution.
The regulations in issue do not resort under s 59(1).
[113]
Even if we are wrong in that conclusion, the problem for the
respondents is that s 146 of the
Constitution caters for conflicts
between national and provincial legislation, dealing with a
functional area listed in Schedule
4.
[39]
Section 146(6) of the Constitution reads as follows:
‘
A
law made in terms of an Act of Parliament or a provincial Act can
prevail only if that law has been approved by the National Council
of
Provinces.’
The
respondents have not shown that the regulations in question, either
in relation to Schedule 4 or any other provincial area of
competence,
are in conflict with provincial legislation. In that regard, the
conclusion of the court below is correct.
[114]
The respondents made two further submissions in their heads of
argument before this Court that had failed to find
favour in the high
court. First, it was contended that the prohibition upon gatherings
in the regulations is in violation of s
14(1) of the Gatherings Act.
Section 14(1) provides that ‘[i]n the case of a conflict
between the provisions of this Act
and any other law applicable in
the area of jurisdiction of any local authority the provisions of
this Act shall prevail’.
Section 14(1) is not a derogation from
the power of the Minister to make regulations under s 27(2) of the
Act. The Gatherings Act
regulates how and whether gatherings may take
place in consideration of discrete issues, such as traffic
disruption, and the risk
of damage to property and injury to persons.
Its sphere of regulation is entirely distinct from the regulatory
scope of s 27(2)
of the Act, upon the declaration of a national state
of disaster. The primacy accorded to the Gatherings Act by s 14(1)
simply
has no application to the regulatory competence of the
Minister under           s

27(2) of the Act. The high court thus correctly dismissed this
challenge.
[115]
The second submission of the respondents was this. The regulations
made declarations of additional
essential services. The declaration
of essential services, so it was contended, is the exclusive
responsibility of the Essential
Services Committee (ESC) in terms of
s 70 of the LRA. Section 210 of the LRA limits the processes by
recourse to which essential
services may be identified. The
regulations, in consequence, are invalid in so far as they make
declarations of essential services.
This can only be done in
conformity with the requirements of the LRA. This submission cannot
prevail. The ESC is given powers and
functions in terms of s 70B of
the LRA, because of the distinctive treatment given to essential
services under the LRA. For example,
no person may take part in a
strike or lock-out if that person is engaged in an essential service.
Section 210 of the LRA is a
supremacy clause that gives primacy to
the LRA, in the event of a conflict of laws, in the regulatory sphere
to which the LRA has
application. That sphere does not extend to the
regulatory competence of the Minister under s 27(2) of the Act. As a
result, this
submission cannot prevail.
Conclusion
[116]
For these reasons the appeal must succeed. The constitutional
challenge made to the regulations was too diffuse and
inadequately
specified to make out a case for an infringement of the Bill of
Rights. The rationality challenge, which was likewise
not properly
pleaded, failed to observe the tight strictures of means and ends
that founds such a challenge. A generalised disquiet
that the
regulations constrain liberty, lack coherence or may have been less
restrictively formulated does not suffice to secure
a declaration of
invalidity. The high court struck down regulations that had not been
challenged, on a case not properly pleaded,
and on the basis of
reasoning that the invalidity of certain regulations must contaminate
all the regulations. In sum, neither
the challenge brought, nor the
high court’s reasons for sustaining that challenge can be
allowed to stand.
[117]
As indicated earlier, it is now necessary to deal with the response
by Mr de Beer and the LFN to the apology tendered
by the Registrar to
Mr de Beer and the LFN. On      18 June
2021, Mr de Beer wrote to the President of
this Court. Once again, it
is necessary to reproduce the written response in its entirety. It
reads as follows:
‘
1.
The email dated 17
th
instant received from the Chief Registrar, Ms. Van der Merwe, which
carried your answer to our letter dated 10
th
instant, refers.
2.
After careful consideration of your official response, writer has
decided to herewith inform
you that the entire Supreme Court of
Appeal may stick its fictitious “apology” to us in its
arse.
3.
As the leader of the institution, you have allowed the COVID-19
flimflam to take over the
Court’s judicial functionality and
for it to desecrate the institution to the point of pure codswallop
which it is today
– nothing but a mere extension of
Government’s narrative; a Court which has lost its independence
and which has become
incapable of protecting the Constitution of the
Republic of South Africa and of protecting the very rights which
Constitution and
Bill of Rights afford the people.
4.
Let writer remind you, Madam President of the Court, that neither you
nor anyone of your
judicial colleagues are divine and that the Court
still belongs to the people of South Africa, and not the Government,
which acts
merely as their steward.
5.
Even if the judgment in our very matter should be in our favour, LFN
and writer shall appeal
it as, either way, it will have come about by
improper means and your bench will have made a charade of what was
supposed to be
a proper adjudication. Neither LFN nor writer are able
to respect a judgment not rooted in true justice, as would normally
have
been delivered by the Appellate Division, something which the
SCA used to be not too long ago.
6.
Let God’s water run over God’s acre.’
[118]
‘
In
a democratic society, one who assumes to act for the citizens in an
executive, legislative or judicial capacity must expect that
his
official acts will be commented upon and criticised. Such criticism
cannot, in my opinion, be muzzled or deterred by the courts
at the
instance of public officials under the label of libel.’
[40]
Courts
are not above criticism. Legal commentators, the media, academics,
and members of the public criticize judgments and court
rulings on an
almost daily basis. In that sense, courts can rightly claim that they
are constantly held up to public account.    No
judge,
indeed, no person, whatever his or her station is above scrutiny. Our
concern in this case, however, is to draw a judicial
line in the
sand. We have set out in some detail the criticisms levelled against
us. Our primary concern however, is the baseless
criticism levelled,
in the last communication of Mr de Beer and the LFN, against the
President of this Court, the deplorable denigration
of the Court, and
the generalised contempt displayed towards all our colleagues,
unconnected though they are to this case. We are
concerned too about
the scurrilous insults, set out in the communications referred to
above, directed at those who serve in the
Registrar’s office.
[119]
The last written communication from Mr de Beer and the LFN is crude,
gratuitously insulting,
clearly contemptuous and intended to
denigrate this court. The Constitutional Court has most recently
warned that unjustifiable
defamatory and scurrilous utterances
against judicial officers will not be tolerated.
[41]
In the present circumstances there seems to us to be no alternative
but to refer this judgment to the National Director of Public

Prosecutions (the NDPP) for her attention. In doing so we are mindful
that Mr de Beer is a layperson. However, even for a layperson
the
statements are beyond the pale and there is no excuse for his conduct
or that of the LFN.
[42]
The Registrar is thus directed to take the necessary steps to ensure
that this judgment is brought to the attention of the NDPP.
[120]
In the result:
1
The appeal is upheld.
2
The high court’s orders are set aside and replaced with the
following order:
‘
The
application is dismissed.’
M
S NAVSA
JUDGE
OF APPEAL
V
N PONNAN
JUDGE
OF APPEAL
Y
T MBATHA
JUDGE
OF APPEAL
O
ROGERS
ACTING
JUDGE OF APPEAL
D
N UNTERHALTER
ACTING
JUDGE OF APPEAL
APPEARANCES
For
appellant:

W
Trengove SC, with him M Phaswane, A Hassim
and I
Cloete
Instructed
by:

State
Attorney, Pretoria
State Attorney, Bloemfontein
For
respondents:

Reyno Dawid de Beer (in person)
For
second amicus curiae:               G
Budlender SC, with
him N Nyembe
Instructed
by:

Norton Rose Fulbright South Africa Inc, Johannesburg
Lovius Block, Bloemfontein
[1]
The objectives of the Act are set out in s 9. Section 6 provides for
the establishment of a National Disaster Management Centre.
Section
29, for Provincial Disaster Management Centres and s 43, for
Municipal Disaster Management Centres.
[2]
Section
27(1) of the Act provides for the declaration of a national state of
disaster by the Minister, if existing legislation
and contingency
arrangements do not adequately provide for the national executive to
deal effectively with the disaster, or other
special circumstances
warrant the declaration of a national state of disaster. Pursuant
thereto, s 27(2), subject to subsection
3, bestows wide powers on
the Minister, after consulting the responsible Cabinet member, to
make regulations concerning, amongst
others, the movement of people,
the occupation of premises, the sale of alcoholic beverages and the
implementation of the provisions
of a national disaster management
plan.
[3]
Section
37(1) of the Constitution provides:
‘
(1)
A state of emergency may be declared only in terms of an Act of
Parliament, and only when–
(a)
the life of the nation is threatened by war,
invasion, general insurrection, disorder, natural disaster or other
public emergency;
and
(b)
the declaration is necessary to restore peace and
order.’
[4]
The long title of the Act reads:
‘
To
provide for—
•
an
integrated and co-ordinated disaster management policy that focuses
on preventing or reducing the risk of disasters, mitigating
the
severity of disasters, emergency preparedness, rapid and effective
response to disasters and post-disaster recovery and rehabilitation;
•
the
establishment and functioning of national, provincial and municipal
disaster management centres;
•
disaster
management volunteers; and
•
matters
incidental thereto.’
[5]
South Africa is a member of the WHO. Its international health
regulations are binding on members and form part of international

law. Its recommendations are invariably followed by member states.
[6]
Mohamed and Others v
President of the Republic of South Africa and Others
[2020] ZAGPPHC 120;
[2020] 2 All SA 844
;
2020 (7) BCLR 865
;
2020 (5)
SA 553
(GP).
In
Mohamed
,
the question was
whether the refusal to allow an exemption to permit congregational
worship, in terms of regulations issued under
the Act, were
reasonable and justifiable in the circumstances under which the
regulations were promulgated. The court held that
the virulent
nature of the pandemic, the rate of infection, and the high risk of
exponential infection meant that the social
distancing measures put
into place had to be enforced as far as possible.
Granting
relief of the nature sought, would be tantamount to opening the
floodgates. The restrictions imposed were neither unreasonable
nor
unjustifiable. The application thus failed.
[7]
Section
165(4) reads as follows:
‘
Organs
of state, through legislative and other measures, must assist and
protect the courts to ensure the independence, impartiality,

dignity, accessibility and effectiveness of the courts.’
[8]
Section
8(3) reads as follows:
‘
The
Chief Justice may, subject to subsection (5), issue written
protocols or directives, or give guidance or advice, to judicial

officers–
(a)
in respect of norms and standards for
the performance of the judicial functions as contemplated in
subsection (6); and
(b)
regarding any matter affecting the
dignity, accessibility, effectiveness, efficiency or functioning of
the courts.’
Subsection
(5) permits directive only if the majority of the heads of court
agree and makes it obligatory to have it published
in the Government
Gazette. These directives were so published in GN 43117,
GG
187,
20 March 2020.
[9]
The WHO declared COVID-19 outbreak a pandemic on 11 March 2020.
[10]
Section
34 of the Constitution provides:
‘
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.’
Section
32
of the
Superior Courts Act reads
as follows:
‘
Save
as is otherwise provided for in this Act or any other law, all
proceedings in any Superior Court must, except in so far as
any such
court may in special cases otherwise direct, be carried on in open
court.’
[11]
This could be done by dispatching them by post to the local
correspondents or to the court directly.
[12]
‘4. General Powers and Duties of Registrar.
(1)
Filing of documents.
.
. .
(b)
The registrar may provisionally accept, in lieu of the original
document tendered for lodging, a copy (including a facsimile or

other electronic copy) thereof, but the original shall be filed
within 10 days thereafter.’
[13]
De
Villiers v De Villiers
2021
[2021] ZAGPPHC 209; JDR 0596 (GP); paras 5-6. See also
Union-Swiss
(Proprietary) Limited v Govender and Others
[2020]
ZAKZDHC 30;
2021 (1) SA 578
(KZD) para 26.
[14]
Uitenhage Transitional
Local Council v South African Revenue Services
2004 (1) SA 292
(SCA) paras 6 and 11.
[15]
See
the most recent expression of the principle expressed in
Oudekraal
Estates (Pty) Ltd v The City of Cape Town and Others
[2009]
ZASCA 85
(SCA) in
Magnificent
Mile Trading 30 (Pty) Limited v Charmaine Celliers NO and Others
[2019]
ZACC 36; 2020 (1) BCLR 41; 2020 (4) SA 375 (CC).
[16]
Qoboshiyane
NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others
[2012]
ZASCA 166
;
2013
(3) SA 315
(SCA) para 3.
[17]
Western Cape Education
Department & Another
v
George
[1998] ZASCA
26
;
[1998] 2 All SA 623
;
1998 (3) SA 77
(SCA) at 84E.
[18]
See
inter alia
Ex Parte Chairperson
of the Constitutional Assembly: In Re Certification of the
Constitution of the Republic of South Africa
[1996]
ZACC 26
;
1996 (4) SA 744
(CC) paras 110-111;
De
Lange v Smuts NO and Others
[1998]
ZACC 6
;
1998 (3) SA 785
(CC) paras 60-61.
[19]
National Director of
Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
;
2009 (1) SACR 361
;
2009 (4) BCLR
393
;
[2009] 2 All SA 243
(SCA) paras 15 and 16.
[20]
Fischer and Another v
Ramahlele and Others
[2014] ZASCA 88
;
2014 (4) SA 614
;
[2014] 3 All SA 395
(SCA) paras
13-15. In
South
African Police Service v Solidarity obo Barnard
[2014]
ZACC 23
;
2014 (6) SA 123
;
[2014] 11 BLLR 1025
;
2014 (10) BCLR 1195
;
(2014) 35 ILJ 2981 (CC) paras 217-218, the Constitutional Court put
it thus:
‘
The
general principle of our law is that it is the parties themselves
who identify and raise issues to be determined by a court.
The
parties may have their own reasons for not raising an issue which
the court finds interesting or important to determine.
The
scope of what falls to be determined depends on what the pleadings
contain.  In
CUSA
, this Court formulated the
principle in these terms:
“
Subject
to what is stated in the following paragraph, the role of the
reviewing court is limited to deciding issues that are raised
in the
review proceedings.  It may not, on its own, raise issues which
were not raised by the party who seeks to review
an arbitral award.
There is much to be said for the submission by the workers that it
is not for the reviewing court to
tell a litigant what it should
complain about.  In particular, the [Labour Relations Act]
specifies the grounds upon which
arbitral awards may be reviewed.
A party who seeks to review an arbitral award is bound by the
grounds contained in the
review application.  A litigant may
not, on appeal, raise a new ground of review.  To permit a
party to do so may very
well undermine the objective of the [Labour
Relations Act] to have labour disputes resolved as speedily as
possible.”
However,
this principle is subject to one exception.  The point
raised
mero motu
by the Court must be apparent from
the papers in the sense that it was sufficiently canvassed and
established by the facts,
and that its determination must be
necessary for the proper adjudication of the case.  Elaborating
on the exception in
CUSA
, this Court said:
“
Where
a point of law is apparent on the papers, but the common approach of
the parties proceeds on a wrong perception of what
the law is, a
court is not only entitled, but is in fact also obliged,
mero
motu
, to raise the point of law and require the parties to deal
therewith.  Otherwise, the result would be a decision premised

on an incorrect application of the law.  That would infringe
the principle of legality.”’
[21]
Rule 53 provides:
‘
(1) Save where any law
otherwise provides, all proceedings to bring under review the
decision or proceedings of any inferior court
and of any tribunal,
board or officer performing judicial, quasi-judicial or
administrative functions shall be by way of notice
of motion
directed and delivered by the party seeking to review such decision
or proceedings to the magistrate, presiding officer
or chairman of
the court, tribunal or board or to the officer, as the case may be,
and to all other parties affected-
(a)
calling upon such persons to show cause why such decision or
proceedings should not be reviewed and corrected or set aside, and
(b)
calling upon the
magistrate, presiding officer, chairman or officer, as the case may
be, to dispatch, within fifteen days after
receipt of the notice of
motion, to the registrar the record of such proceedings sought to be
corrected or set aside, together
with such reasons as he is by law
required or desires to give or make, and to notify the applicant
that he has done so.
(2) The notice of motion shall
set out the decision or proceedings sought to be reviewed and shall
be supported by affidavit setting
out the grounds and the facts and
circumstances upon which applicant relies to have the decision or
proceedings set aside or
corrected.
(3) The registrar shall make
available to the applicant the record dispatched to him as aforesaid
upon such terms as the registrar
thinks appropriate to ensure its
safety, and the applicant shall thereupon cause copies of such
portions of the record as may
be necessary for the purposes of the
review to be made and shall furnish the registrar with two copies
and each of the other
parties with one copy thereof, in each case
certified by the applicant as true copies. The costs of
transcription, if any, shall
be borne by the applicant and shall be
costs in the cause.
(4) The applicant may within ten
days after the registrar has made the record available to him, by
delivery of a notice and accompanying
affidavit, amend, add to or
vary the terms of his notice of motion and supplement the supporting
affidavit.
(5) Should the presiding
officer, chairman or officer, as the case may be, or any party
affected desire to oppose the granting
of the order prayed in the
notice of motion, he shall-
(a)
within fifteen days
after receipt by him of the notice of motion or any amendment
thereof deliver notice to the applicant that
he intends so to oppose
and shall in such notice appoint an address within eight kilometers
of the office of the registrar at
which he will accept notice and
service of all process in such proceedings; and
(b)
within thirty days
after the expiry of the time referred to in subrule (4) hereof,
deliver any affidavits he may desire in answer
to the allegations
made by the applicant.
(6) The applicant shall have the
rights and obligations in regard to replying affidavits set out in
rule 6.
(7) The provisions of rule 6 as
to set down of applications shall
mutatis mutandis
apply
to the set down of review proceedings.’
[22]
Jockey Club of South
Africa v Forbes
[1992]
ZASCA 237
[1992] ZASCA 237
; ;
[1993] 1 All SA 494
;
1993 (1) SA 649
(A) at
660.
[23]
Ibid at 661.
[24]
City of Cape Town v
South African National Roads Authority Limited and Others
[2015] ZASCA 58
;
2015 (3) SA 386
;
[2015] 2 All SA 517
;
2015 (5) BCLR
560
paras 35-37.
[25]
Democratic Alliance
and Others v Acting National Director of Public Prosecutions and
Others
[2012] ZASCA
15
;
[2012] 2 All SA 345
;
2012 (6) BCLR 613
;
2012 (3) SA
486
(SCA) para 37.
[26]
Helen Suzman
Foundation v Judicial Service Commission
[2018] ZACC 8
;
2018 (4) SA 1
;
2018 (7) BCLR 763
(CC) para 15.
[27]
City of Cape Town v
South African National Roads Authority Limited and Others
fn
23 above.
[28]
Turnbull-Jackson
v Hibiscus Coast Municipality
[2014]
ZACC 24
;
2014
(6) SA 592
;
2014
(11) BCLR 1310
(CC)
para 37.
[29]
Bridon International
GMBH v International Trade Administration Commission
[2012]
ZASCA 82
;
[2012] 4 All SA 121
;
2013 (3) SA 197
(SCA) para
31.
[30]
Ibid.
[31]
Safcor
Forwarding (Pty) Ltd v NTC
1982
(3) SA 654
(A) at 675B-H.
[32]
Prince
v President of the Law Society of the Cape of Good Hope
[2002]
ZACC 1
;
2001 (2) SA 388
(CC) para 22. See also
Shaik
v Minister of Constitutional Development and Others
[2003] ZACC 24
;
2004 (4) BCLR 333
;
2004 (3) SA 599
(CC) paras 24 and
25.
[33]
Public Servants
Association obo Ubogu v Head of Department of Health, Gauteng and
Others
[2017] ZACC
45
;
2018 (2) BCLR 184
;
2018 (2) SA 365
(CC)
para
50.
[34]
Democratic
Alliance v President of South Africa and Others
[2012]
ZACC 24
;
2012 (12) BCLR 1297
;
2013 (1) SA 248
(CC) para 32.
[35]
Minister of Home
Affairs and Others v Scalabrini Centre, Cape Town and Others
[2013] ZASCA 134
;
2013 (6) SA 421
;
[2013] 4 All SA 571
(SCA) paras
65-66.
[36]
See fn 33 above.
[37]
Minister
of Water and Environmental Affairs v Kloof Conservancy
[2015] ZASCA 177; [2016] 1 All SA 676 (SCA)
para13
.
[38]
See s
40(2)
(b)
.
[39]
See s
146(1) of the Constitution.
[40]
New
York Times Co. v Sullivan
[1964] USSC 41
;
376
U.S. 254
(1964) at 299.
[41]
Mkhatshwa and Others v
Mkhatshwa and Others
[2021] ZACC 15
paras 23-27.
[42]
See the latest Constitutional Court Judgment in
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Zuma and Others
[2021]
ZACC 18
at para 136.