Opinionista Professor Balthazar 3 June 2020

A disturbing example of judicial overreach

It simply had to happen. Given the welter of legal challenges to the declaration of the Disaster Management Act, it was always on the cards that one would succeed. And on Tuesday, Judge Norman Davis in the Gauteng High Court set aside the regulations promulgated under the Act, notwithstanding that they are now designed to regulate Level 3 as opposed to Level 4 lockdown.

The application, brought by a Reyno de Beer and the Liberty Fighters Network, a voluntary organisation, sought to set aside the declaration of the National State of Disaster and the regulations that have, effectively, been governing the lives of South Africans since mid-March. The attack against the declaration was based on an argument of an alleged irrational reaction to the coronavirus and the number of deaths caused thereby.

Sensibly, Judge Davis adopted a cautious approach to this frontal attack. It is remarkable that there are thousands of expert epidemiologists in the country, judging by the lawyers, actuaries, economists and sports scientists who opine regularly in the media, but a judge needs to show deference to a decision taken by the executive after due consultation with true experts that it consults.

The judge, again correctly, observed that the Act was not conceived to deal with a disaster in the form of a pandemic. Although it can lawfully be invoked to declare a disaster in this context, the implication is that the powers that flow to ministers from the declaration, and hence the provisions of the Act, require careful judicial examination in that the powers so granted trench upon the most basic rights of the citizenry.

Judge Davis then moved to the test to be applied in assessing the legality of the regulations that have been promulgated. The test is one of rationality: that is it is not for the court to decide whether some means are better than others to deal with Covid-19 and its consequences, but whether the means employed by the minister by way of the regulations so promulgated are rationally connected to the purpose for which the power was conferred.

So far, so good. The problem comes hereafter. Granted that the application was heard on 28 May when Level 4 restrictions were in place; by the time the judgement was delivered the country had moved to Level 3, a fact that had to be common cause when the hearing took place. Hence the practical effect of this judgment was only going to be connected to Level 3 regulations. This is where the judgement plunges into turbulent legal seas. The finding that it is irrational to prevent businesses from opening is, to a very large extent, moot. True, Judge Davis comes to the aid of the hairdressers, but there is not even a word that the close proximity of a customer to a hairdresser may be a rational reason to preclude these businesses from opening at this time. The judge found that this group is being denied the chance to earn money; hence he found the restriction to be irrational – but the same consequence applies to those who work at sports events where large crowds gather, and at cinemas or restaurants. And there are rational reasons to be restrictive in these cases. The complaint about exercise is equally moot given the new Level 3 dispensation.

Reading the judgment, it is impossible to know which regulations are compliant with law and which are not.

When the judge deals with funerals and other gatherings, the slippage between a test of rationality and the judge’s own opinion as to what should be done by the government to deal with the pandemic, blur into one test. There is a passage where the court acknowledges that Level 4 has been replaced by Level 3 regulations, but then says these “have not been placed before me nor have the parties addressed me on them”.

That the government lawyers did not provide the court with the draft of the Level 3 regulations, or submit to the court that it was vital for the regulations that were to displace the impugned regulations on the Monday, some five days later, is inexplicable. But, given the enormity of the problems confronting any government in dealing with so unprecedented a threat to life, it was surely incumbent on the court to refuse to deal with the application until the relevant regulations were placed before the court and properly debated.

Courts are not supine institutions and they have powers to ensure that the best decision viewed, in this case from the vantage point of the public interest, is achieved. If the court felt that the government’s legal team was not doing its job, it could have appointed an amicus to assist. As it stands, the reasoning employed, and the vagueness of the justifications offered in the judgement for its conclusions, and thus the order granted, is at ferocious war with the test for rationality as correctly set out in the judgment.

Reading the judgment, it is impossible to know which regulations are compliant with law and which are not. A capita selecta of a few regulations is surely not sufficient to strike down the entire text.

The upshot is a disturbing example of judicial overreach – the rate of infections is increasing exponentially and the last thing the country needs at the moment is a level of regulatory uncertainty, which is what this judgment will engender. The judge did give the government time to reconfigure the regulations so that they can pass legal muster, but this judgment is unlikely to promote meticulous compliance with the kind of behavior that will prevent a greater spread of infections.

To be fair, the matter came up as one of urgency before a single judge who was clearly provided with sparse assistance from the government, at least judged by the latter’s performance as set out in the judgment. That the government did not provide the court with meticulous justifications for the regulations it promulgated lies at the heart of this outcome.

Is it too much to expect that this will be a wake-up call in respect of the office of the state attorney? DM

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