The “sheer irrationality” of South Africa’s lockdown regulations

The Gauteng High Court has declared South Africa’s alert level 4 and alert 3 lockdown regulations unconstitutional and invalid.

It gave Minister Nkosazana Dlamini-Zuma fourteen business days to review and republish a new set of regulations.

Judge Norman Davis said that this must be done “with due consideration to the limitation each regulation has on the rights guaranteed in the Bill of Rights contained in the Constitution.”

While the regulations were struck down in their entirety, Davis highlighted a handful of regulations that do not need review.

Davis said that the following alert level 3 regulations do not require review:

  • Prohibition on evictions (Section 36)
  • Prohibition of initiation practices (Section 38)
  • The closure of night clubs and casinos (Section 39(2)(d) and (e))
  • Closure of borders (Section 41)

Davis also said that the cautionary regulations relating to education pass muster and that the declaration of a state of national disaster was legal.

The ruling specifically excluded the ban on the sale of tobacco products, as a separate case will be heard in the High Court on the matter during June.

In addition, Davis noted that the role and existence of the National Coronavirus Command Council did not feature in the case that was brought before him.

Applying the rationality test

Throughout the ruling, Davis gave examples of how the regulations, when considered in context with one another, appear irrational.

Davis mentioned that the regulations ban people from supporting loved ones who may be in the grip of a terminal disease unless they are the designated caregivers of the patient. However, if that person dies then up to 50 people may even cross provincial borders to attend their funeral.

The judge said that one might understand the reluctance to have an influx of visitors for a terminal patient who is inside a medical facility, but what if the person is in their own home or at the home of a family member or friend?

In the context of allowing funerals and religious gatherings of up to 50 people, Davis said that several other regulations also appear to be irrational.

People in the informal sector such as traders, fisheries, shore-foragers, construction workers, street vendors, waste-pickers, and hairdressers all have less contact with other people on a daily basis than the attendance of a single funeral, Davis stated.

“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 [taxis] pass with passengers in closer proximity to each other than they would have been in her salon,” said Davis.

“She is stripped of her rights of dignity, equality, to earn a living and to provide for the best interests of her children.”

The limitations on exercise are just as perplexing, Davis said.

“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.”

Another example of arbitrary restrictions which makes otherwise rational regulations irrational is the restriction on the hours of exercise.

“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,” the judge stated.

Davis said that the impracticalities of distributing food parcels highlight another absurdity. A whole community is now forced to congregate in huge numbers, sometimes for days, to obtain food they would otherwise have prepared or acquired for themselves.

Another example of “sheer irrationality”, Davis said, is being allowed to buy a jersey but not undergarments or open-toed shoes.

Courts can’t fix regulations, the Minister must

Striking down the regulations in their entirety sounds extreme, but Davis explained that it is up to the Minister to review and amend the regulations, not the court.

Davis noted that it is not sufficient for the “ends to justify the means”, but that each encroachment of a Constitutional right must be evaluated and found to be justifiable.

“Without conducting such an enquiry, the enforcement of such means, even in a bona fide attempt to attain a legitimate end, would be arbitrary and unlawful.”

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The “sheer irrationality” of South Africa’s lockdown regulations