Two decisions which were handed down late last week, one in Gauteng and another in the Western Cape, confirm how difficult it has proved to successfully litigate against government’s regulation of Covid-19, the outlier of Judge Norman Davis’s judgment striking down the regulations aside.

A full bench in Gauteng dealt with the ban on cigarettes. At present, Regulation 45 of the Level 3 regulations provides that “the sale of tobacco, tobacco products, e-cigarettes and related products is prohibited, except for export”. 

The core of the challenge brought against this regulation was the following: The prohibition is out of step with the vast majority of countries throughout the world. There is also not any rational consideration given to the enormous harm that has been and continues to be occasioned to not only the economy, employment, livelihoods, but also to the health and safety of individuals. It is undeniable that simply and summarily preventing smokers and users of tobacco products from using these products gives rise to very serious physical and emotional adverse consequences. This leads to many users resorting to illicit non-regulated products that pose a significant health hazard.

The key to the finding in favour of the government’s ban is to be found in the following passage of the judgment:

“We hold the view that a vigorous attempt to contain the spread of the virus at all costs had to be made, especially bearing in mind the high Covid-19 mortality rates and the fact that, as a developing country with limited resources as well as an already overwhelmed healthcare system, South Africa is ill-equipped to survive the full brunt of the pandemic at its peak if no concerted efforts are made to contain the virus. In line with its constitutionally mandated duties to preserve life and provide adequate health care, the State was under a duty to adopt measures to ensure that the already fragile healthcare system was not overwhelmed even further.”

The court then examined the justification that the government put up in its answering papers which included detailed evidence from the World Health Organisation and other medical evidence concerning the effect of smoking on the health of smokers and the consequences for the health system of the country. The test of rationality adopted by the court, that is the rational connection between the regulation and the purpose which is to be achieved thereby was therefore met:

“In our view, the medical material and other reports, inclusive from the WHO, considered by the Minister, though still developing and not conclusive regarding a higher Covid-19 virus progression amongst smokers compared to non-smokers, provided the Minister with a firm rational basis to promulgate regulations 27 and 45, outlawing the sale of tobacco products and cigarettes. This in our view is a properly considered rational decision intended to assist the State in complying with its responsibilities of protecting lives and thus curbing the spread of the Covid-19 virus and preventing a strain on the country’s healthcare facilities.”

An issue not adequately examined by the court was the following:

The minister’s powers under section 27(2) of the Disaster Management Act are constrained by the provisions of section 27(3) of the act which states that the minister may exercise those powers “only to the extent that it is necessary for the purpose of” any of the listed outcomes in the section. The question raised but not dealt with in the judgment is the following: is the relatively low standard of rationality the end of the inquiry? In other words, is the cigarette ban necessary for the purposes of the act? Or, is there a difference between a rationality standard and the test of necessity? Unless the words of the statute are ignored, there would appear to be an argument that was not dealt with by the court, that is that the ban is not necessary for the purposes of the act. The court dealt with the word “necessary” as contained in s27(2) but did not appear to grapple with the problem as to whether “necessary” as employed in this section is adequately accommodated by the low bar of a rationality test as employed by it.

From reports, there is another challenge to the cigarette ban to be heard in the Western Cape High Court. While additional evidence may be provided in this case, one wonders about the point of such a hearing when, in all likelihood, the Gauteng decision is likely to progress to either the Supreme Court of Appeal or the Constitutional Court.

That brings us to the judgment of the Western Cape court. Whatever the merits of the approach adopted by the Gauteng court, it is a clear and coherent judgment. Regrettably, the Western Cape judgment is less so and hence it is somewhat difficult to divine some of the reasoning employed.

In fairness, one of the three arguments raised did invite a judicial overreach and was correctly rejected by the court. This concerned whether the employment of a national command council to manage the government response to Covid-19 passed constitutional muster. To find that the government could not set up an executive structure to deal with this unprecedented event would have meant the judiciary instructing the executive as to how to co-ordinate its expertise to handle the pandemic ; hardly an exercise within the scope of the judiciary. The court was correct to firmly show the judicial door to the applicants.

… while Covid-19 has confronted the courts with difficult cases which have required speedy judgments, even taking these problems into account, the results have been disappointing. On the one hand, Judge Norman Davis sets the entire regulatory structure aside, while the Western Cape High Courts adopts the exact opposite position. 

It is with the other legs of the case that the problems with this judgment and its reasoning arise. Whether the Disaster Management Act mandates public participation in the formulation of regulations is of no moment. The facts indicate that the minister invited public participation and the public enthusiastically responded to the call. The problem was that, even though 70,000 representations were made by 27 April, the minister promulgated the regulations within 48 hours of the receipt thereof. If the minister was serious about public participation then, even though there was urgency in promulgating these regulations, the chronology hardly speaks to serious engagement with the public. The court thought otherwise:

“The Minister did not recognise the need for public participation only when she called for it on 25 April 2020. Her modus operandi was to consult with colleagues, NAT JOINTS, the centre, the advisory council, other spheres of government and organs of state and she had regard to inputs from the public that she had access to. To cast her conduct as authoritarian is misleading and patently inappropriate as that assertion is not borne out by objectively determinable facts alleged by her and supported by annexures to her affidavit, that contains schedules to media interviews and briefings held by the Minister of CoGTA and other Ministers. 

“On two occasions in her answering affidavit, the Minister appears to have the dates of consultation incorrect as they are subsequent to the date of publication of regulations. That does not lead to the inference that she made those regulations without any public participation in circumstances where she and/or her Cabinet colleagues had engaged with sectors, labour unions and NGOs. Even if she did make regulations without public participation, the exigencies of the crisis that she sought to regulate is of such a nature, that where the DMA does not prescribe public participation, the public’s check and balance on abuse of power still resides with Parliament to who the Minister is accountable for the exercise of delegated power to make subordinate law. There is no claim that she is in fact not accountable to Parliament.”

This finding hardly meets the core of the applicants’ argument: if public participation is invited, then within the context of the deliberative model of constitutional democracy that is created by the Constitution, some evidence of meaningful engagement with the public is surely required. That the public representations appear, on any reasonable inference, to have been ignored or at least given speedy shrift, the invitation by the minister notwithstanding, is surely a problem. And the unnecessary defence of the minister as not being authoritarian adds only to a sense of excessive deference to the executive in this dispute.

The same deferential approach is evident in the approach adopted by the court to the attack on many of the regulations. For example, there was an attack on the then-regulation 16 which restricted people’s movement through a curfew and limitation on hours of exercise as an impermissible limitation on people’s freedom of movement. The court found that this regulation, as with the others attacked, achieved a balance between the harm sought to be curbed and the inconvenience to the public. Further, these regulations all passed the rationality test; that is the rational link between the content of the regulation and the purpose claimed therefor by the minister. To revert to regulation 16: it trenches upon constitutional rights, in particular s21 of the Constitution – freedom of movement. There is however no analysis of whether this regulation and others can be said to justifiably limit this right, particularly the critical question as to whether less restrictive means could have been employed in a country which is supposed to be, as s36 of the Constitution (the limitation clause) states, an open and democratic society.

In mitigation of the judgment, the court appears not to have been well served by the arguments presented. This the court itself made clear as follows:

“Applicants merely juxtapose one regulation with another, proceed to draw illogical and unsubstantiated conclusions from that comparison and then attribute those conclusions to the means used by the regulation.”

In summary, while Covid-19 has confronted the courts with difficult cases which have required speedy judgments, even taking these problems into account, the results have been disappointing. On the one hand, Judge Norman Davis sets the entire regulatory structure aside, while the Western Cape High Courts adopts the exact opposite position. 

The most important question is whether Covid-19 will mark significant changes in the role of the judiciary as the country moves out of this pandemic. That important question must await another day. DM