Esau and Others v Minister of Co-operative Governance and Traditional Affairs and Others

Coronavirus (COVID-19) has been a lived reality across the globe for over a year and a half. It has required governments around the world to regulate their citizens’ behaviour in order to curb the spread of the virus.  South Africa implemented its own lockdown regulations in terms of the Disaster Management Act 57 of 2002 (‘the Act’) in March 2020. These regulations have been amended frequently as government has learnt more about the virus, however there are many regulations which were (and some which still are) regarded as arbitrary and ineffective. This has led to legal challenges to the validity of some of these regulations, including those raised in Esau and Others v Minister of Co-operative Governance and Traditional Affairs and Others (5807/2020) [2020] ZAWCHC 56 (“Esau v Minister of COGTA”).

The Applicants in this case were Duwayne Esau and 7 Others, a group of politically motivated individuals who challenged regulations because they believed that the government had erred in its establishment of the National Coronavirus Command Council (“NCCC” or “Command Council”), and that the policy decisions of the NCCC were of no legal force or effect because the NCCC itself was an unconstitutional body. Specifically, the Disaster Regulations issued in terms of section 27(2) of the Act were challenged as unconstitutional and invalid, with an emphasis being placed on the “Directions regarding the sale of clothing, footwear and bedding during alert level 4”.

The Applicants’ allegations were mainly focused on the legality behind the establishment of and the powers given to the NCCC, and the procedural irregularities which took place throughout. They argued that the National Executive had usurped the powers which vest with Parliament when they granted the NCCC the power to implement regulations which affect the rights of South Africans. The Applicants held that the National Disaster Management Centre holds the power to “promote the integrated and co-ordinated system of disaster management, with special emphasis on prevention and mitigation” according to the Act; and that the centre is the primary body established by the Act to manage and coordinate government’s response to disasters. The Applicants reasoning in this allegation is that there already existed a body with the appropriate authority to develop the regulations; and that the establishment of a new body, that lacks legislative framework, renders the existing authority meaningless. This allegation attacked the legality of the NCCC.

They further alleged that the regulations constitute administrative action in terms of the Promotion of Administrative Justice Act, No. 3 of 2000 (“PAJA”) and as such need to be lawful, reasonable and procedurally fair. In this allegation the Applicants focussed on the procedure which was followed in the implementation of the regulations. The Applicants contended that throughout the process, the Minister of COGTA had failed to follow an adequate public participation process. They submitted that the Minister could not have considered all the submissions as there were about 70 000 submissions to be heard in a period of less than two days.

In response to the Applicants’ allegations, the Minister submitted that she did follow adequate public participation processes as she established separate teams to assist her with the processing of the submissions; and that she further had to make the decision to implement a lockdown quickly and decisively and that there was simply not enough time to have extensive public participation processes. To further justify her actions the Minister submitted that she received widespread feedback from the President, Cabinet, the public and other stakeholders once the regulations were published and proceeded to amend them as appropriate.

The Applicants in their final line of attack submitted that:

“Some aspects of the regime, though onerous, may be justified by the legitimate government purposes of limiting the spread of Covid-19, allowing the authorities the necessary time to ensure that South Africa’s health infrastructure is able to cope with a spike in infections and promoting appropriate levels of general health and hygiene. Unfortunately, many other aspects of the regime cannot be justified and bear no rational link to the objective of limiting the spread and lessening the impact of Covid-19.”

The Applicants approached this allegation through the lens of Prinsloo v Van der Linde and Another 1997 (3) SA 1012(CC) (“Prinsloo”). In Prinsloo, the court held that for a decision to be rational in substance [not in procedure] there must be a relationship between the scheme to be adopted and the achievement of a legitimate purpose. Using this case as authority allowed the Applicant to challenge the lockdown regulations themselves and it put the onus on the Respondent to prove that there exists a rational link between the regulation imposed and the achievement of the purpose of limiting the spread of Covid-19.

In their response, the Respondents set out the factors which they considered when developing the regulations in question. They held that there was an urgent need to stop the movement of people; to put in place improved public health care facilities; to provide healthcare workers with adequate personal protective equipment; to bring the seriousness of the pandemic to the attention of the population. The Respondents also submitted that there was consultation with stakeholders and role players in relevant sectors prior to regulations being published and that some regulations were formulated as a direct response to sectors’ submissions.

In the analysis of the allegations and responses made by the parties, the court came to the following conclusions:

1. That there was no basis for the allegation that the NCCC unlawfully usurped the powers of the Centre. The provisions of the Act do not place the Centre itself as the authority vested with the power to manage disasters exclusively, solely or primarily, but rather the hierarchy of the Act makes it clear that the Centre is subordinate to the Minister and the National Executive. It was clear from Dr Tau’s affidavit (the head of the Centre) that he and the centre were integrally involved in consultations with Cabinet as well as other organs of state, spheres of government and other role players in promoting the integration of disaster management.

2. That the allegation that the Minister made a procedural error in adhering to the public participation process was unsubstantiated. The dispute of fact was held as not not bona fide as the Applicants did not offer any support for their allegation that the Minister’s version is false.

3. That the allegation that the regulations themselves were irrational was not supported as the Applicants did not provide a well-reasoned argument as to why each disputed regulation was irrational. The court found that the Respondents sufficiently linked the regulations in question to the purpose of containing the spread of the virus from one area/regions/municipality and province to another so that the health care system in each area can cope with the outbreak it has to contend with. Judge R. Allie had the following to say:

“I am satisfied that the regulations are justified, and it is conceptually not possible to interpret the objectives of protect and relieve; prevent disruption and deal with the effects of a novel global pandemic… in narrower terms than the Respondents have”; and

“I am satisfied that not only is the rational link between the measures and its purpose explained in the answering affidavits of the Ministers of CoGTA and the DTIC as well as the expert affidavit, but it is also self-evident from the content of the regulations themselves, properly construed in its context.”

Accordingly, the court ordered that the application be dismissed, and each party pay their own costs. The Applicants have, however, appealed the decision reached by the High Court to the Supreme Court of Appeal (‘SCA’). This appeal did not lead to any substantial success for the Applicants. The SCA in their conclusion and order found that:

“when the NCCC took a policy decision that was given legal effect by the COGTA Minister, it was legally entitled to do so, and that, in any event, that policy decision was moot and therefore not justiciable; the challenge to the level 4 regulations based on improper purpose was not properly raised; the level 4 regulations were made in a procedurally fair manner, alternatively, they were made in terms of a rational decision-making process; the COGTA Minister applied her mind to the representations that she received from members of the public; the specific movement and economic activity regulations that were challenged were, with two exceptions [emphasis added], reasonable and justifiable limitations of fundamental rights; and the challenge to the clothing directions made by the Minister of Trade, Industry and Competition was moot [as level 4 was over by this time] and did not, on this account, have to be decided.”

The SCA dismissed the appeal, save for an amendment made to the original order. This amendment stated that two regulations in terms of the level 4 regulations were invalid. Regulation 16(2)(f) was invalid to the extent that it provided a specific form of exercise to be taken at a specific time and that regulation 28(3) was invalid to the extent that it prohibited the sale of hot cooked food. The SCA found that both regulations were not objectively rational.

Esau and Others v Minister of Co-operative Governance and Traditional Affairs, even with its limited success, has undoubtedly reminded government of their duty to act reasonably and justifiably. COVID-19 is persisting well into its second year in SA and government will have to implement new regulations as we learn more about the virus. This case provided precedent for measuring the validity of COVID-19 regulations in view of their rationality and proportionality of effect and may be cited in future challenges.

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