Question

A South African high court has declared governments lockdown regulations for level 4 and 3 unconstitutional, and therefore invalid.
Assess the implication that this judgment cold hold for government?

Answer 1

Answer:

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,

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.

Answer 2

There were signs of an anxiety in certain communities after 2 months of one of the most rigorous lock-outs in any world. When the govt. added more clarity to the rules, the integrity of the restrictions was extended as it went from level 5 to level 3

Explanation:

• However,  this judgment has far-reaching legal & governance impacts. The govt is under great pressure to negotiate a complicated, totally unknown and rapidly shifting decision-making environment. It would bring more unforeseen pressure on the state.
• The declaration of the state of disaster was justified when taking into consideration the rationality test since steps were urgently needed to curb the spread of COVID-19 and to turn an ailing and deteriorating condition of health care system into a situation of preparedness that can cope with the previously unparalleled demand for high & intensive care services.
• The High Court decision that nearly all lock-down laws for disasters are unconstitutional poses critical concerns about the government's duty to behave rationally & transparently and to restrict freedoms as least as practicable.
• Nevertheless, the shallow review of the "specific regulations" by the judge and the general scope of the judicial order undoubtedly would lead to the reversal of the decision on appeal.

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A South African government has declared the government lockdown ...

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