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03.06.2020 Article

Court throws South Africa's lockdown exit strategy into disarray. But it got it wrong

By Richard Calland - The Conversation
South Africa's professional surfers have been allowed back in the water.  - Source: Brenton Geach/Gallo Images via Getty ImagesSouth Africa's professional surfers have been allowed back in the water. - Source: Brenton Geach/Gallo Images via Getty Images
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A South African High Court has declared the government's lockdown regulations unconstitutional and, therefore, invalid, driving a coach and horses through its COVID-19 strategy.

Justice Norman Davis found that both the level 3 and level 4 regulations are “irrational”. The government has five COVID-19 alert levels , from level 5 down to level 1, when most normal activity can resume.

After two months of enduring one of the most stringent lockdowns of any country, there have been signs of restlessness in some communities. As the government added greater detail to the regulations, when the country moved from level 5 to level 3, the credibility of restrictions has been stretched.

But the legal and governance impact of this week's judgment is far-reaching. It will heap further unwelcome pressure onto a government that is already under intense pressure as it tries to navigate a complex, wholly unfamiliar and ever-changing decision-making terrain.

The judgment declares that the regulations are invalid. But, with the exception of some, it suspends the declaration of invalidity for 14 days to allow the Minister of Cooperative Governance, Nkosazana Dlamini-Zuma, to

review, amend and republish the regulations (with) due consideration to the limitation each regulation has on the rights guaranteed in the Bill of Rights contained in the constitution.

This requires the government to redo the work that it has done in preparing, and then promulgating, the regulations. It also creates a new layer of uncertainty to an already highly fluid situation.

Read more: Rule of law has moved centre stage in lockdown: what it is and why it matters

During the 14-day period, the newly instituted level 3 regulations , which reopened a large part of the economy and allowed the sale of alcohol, will remain in force. But, the judgment means that it will not be possible for the government to revert to the old level 4 regulations without a substantial rewrite.

An appeal by government to the Constitutional Court is highly likely, and highly desirable. It is hard to think of a more significant judgment in terms of how many people and how wide a sweep of the economy it affects.

But, in my view, the judgment is unconvincing in many respects and has applied the law incorrectly.

Given the stakes, it is important that it is properly understood and held up for public scrutiny.

Rationality test

For a government decision to be held by the court to be “irrational” does not mean that the court finds the decision itself to not be based on logical reasons or clear thinking.

Instead, the rationality test permits the court to review a decision based on an assessment of whether there is a rational connection between the government decision, the process used to reach it, and a legitimate government purpose.

The court notes that the government's affidavit had argued that the “means justify the end” and, therefore, the regulations pass the rationality test. But, Justice Davis then observed that he wondered aloud during argument whether in fact the government actually intended to apply the Machiavellian notion of the “end justifies the means”.

As the judgment unfolds, it becomes increasingly clear that he takes a dim view of the reasonableness (not rationality) of a good deal of the government's decision-making, thereby potentially confusing the law.

He finds, for example, that:

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 period is completely irrational.

The court's responsibility was to see if there was any rational connection between the decision and the purpose, not whether there was a better means of serving the end goal.

Moreover, it requires the court to examine with great precision each and every step of the decision-making process, and to assess the evidence of how the decision was taken and whether, in an objective sense, the decision was correctly deemed to be in service of the purpose.

Justice Davis's judgment fails to do so. Although, if government did an inadequate job at placing sufficient evidence of their reasoning and decision-making process, then they are partly at least the architects of their own misfortune.

Regardless, Justice Davis appears to review both sets of regulations and then pick out the ones that displease him most in terms of whether they “make sense” to him or not, and to declare all of them invalid, and not just those that he has sought to apply the rationality test to.

The reference to evidence is scanty. For example, the court observes – without any citation – that millions of South Africans in the informal sector have less daily contact than people attending a funeral, making the “blanket ban” on them “appear to be irrational”.

Holes in the argument

The court describes the approach of the government as “a paternalistic approach, rather than a constitutionally justifiable approach”.

Paternalism may be politically or ideologically unattractive to some, especially libertarians. But, it is not, per se, a constitutionally impermissible policy or strategic position for the government to adopt, pandemic crisis or not. Waste recyclers queue for food handouts in Johannesburg as the nationwide lockdown left them unable to work. EFE-EPA/Kim Ludbrook

The judgment may also be vulnerable to attack for adopting a simplistic approach to the “legitimate government purpose”, which it finds to be solely to contain the spread of the virus. This is a misunderstanding.

Read more: Numbers can kill: politicians should handle South Africa's coronavirus data with care

The risk-adjusted strategy that creates the framework of different COVID-19 alert levels, under the Disaster Management Act 2002 , seeks to strike a balance at every stage of the unfolding crisis between competing and overlapping priorities.

This includes the public health priority of building capacity in the health system to absorb an inevitable rise in infections, and the duty of the state to protect lives and livelihoods.

The other puzzling aspect of the judgment relates to its approach to the Bill of Rights and possible limitation of the rights enshrined in it.

Clearly, the lockdown involved the limitation of certain “normal” freedoms. The question is whether the limitations are constitutionally permissible, and uphold section 36 of the constitution. This requires that such limitations be proportional . This means that the government may use only the least restrictive measure for achieving its aim.

But, having found the regulations to be irrational and therefore invalid, the court had no need to consider whether they unjustifiably infringed any right protected in the Bill of Rights. Justice Davis bluntly finds that:

…in an overwhelming number of instances the Minister (sic) have not demonstrated that the limitation of the Constitutional rights already mentioned, have been justified in the context of section 36 of the Constitution.

Confusingly, the court order requires the government not to fix the impugned “irrationality” of the regulations, but instead to review them with regard to whether they may infringe the Bill of Rights.

Rule of law

Government lawyers, as well as cabinet ministers and officials, will be scratching their heads over this judgment. Not least because the notion of a “rationally justifiable” infringement of constitutional rights is a novel formulation.

Whether the judgment is overturned on appeal or not, what it shows – once again – is that South Africa's rule of law and its judicial independence are alive and kicking.

At a time of such extreme crisis, courts may be inclined to give the government a little more latitude – such as the decision of the German Supreme Court last month, in finding that its government has a wide scope for the assessment, evaluation and design of its COVID-19 response.

As South Africa's Constitutional Court has found in other cases involving complex public policy and socio-economic rights, the more “polycentric” the governmental decision-making or policy choice, the more careful the court should be not to stray into the executive's lane. Nothing could be as polycentric as COVID-19.

This is not to say that government should be given a free hand or a blank cheque. A state of national disaster cannot permit lawmaking through the back door, nor enable a slippery slope into autocracy. Far from it. As the High Court judgment shows, government will have to work hard to ensure that it is acting within the law, respecting hard won rights every step of the way.

Richard Calland is a Founding Partner in political risk consultancy, The Paternoster Group, and a member of the Advisory Council of the Council for the Advancement of the South African Constitution.

By Richard Calland, Associate Professor in Public Law, University of Cape Town

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