Opinionista • Paul Hoffman • 12 June 2020
The ruling by Judge Norman Davis in the De Beer case challenging the lockdown regulations has been widely dissected, and criticised, by leading legal academics and commentators. It has set up intriguing grounds for appeal.
The long essay in Daily Maverick on 8 June (“High Court ruling on lockdown throws up intriguing questions on the limits of state paternalism”) by University of Limpopo Professor Omphemetse Sibanda on the ramifications of the De Beer case judgment striking down some of the lockdown regulations is but one of many professorial pokes at the 33-page judgment of Judge Norman Davis, now being taken on appeal by the state.
Richard Calland of UCT is perplexed by the reference to rational justification, George Devenish of UKZN calls for the consent of the governed, and the mythical Prof Balthazar does not see the judgment surviving an appeal. Pierre de Vos, too, doubts the soundness of the judgment. Prof Thuli Madonsela of Stellenbosch University is concerned about its human rights ramifications, as behoves a professor of social justice. Her open letter to the president questions the limitations on human rights in the regulations.
By all accounts, the papers presented to the judge for adjudication were a movable feast and a bit of a dog’s breakfast. De Beer appeared in person; the minister he sued did not bother to respond herself. A civil servant swore that “the ends justify the means” when it comes to locking down the entire country; her junior counsel, when questioned about this, doubled down and insisted that there was no slip of the pen and that the minister had no intention to say the means justify the ends.
To make matters worse, the regulations were changed from Level 4 to Level 3 in the midst of the matter; surely a complicating factor. This is especially so when government threatens to revert to the Level 4 regulatory regime.
Two central questions emerge from the fruit salad dished up to the court:
Are the regulations rational in the sense that they serve a legitimate purpose of government? And,
Do they limit guaranteed human rights in a manner that is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”?
The two enquiries are different, even though they overlap and may both come to the same conclusion.
As to rationality: it must be noted that (quoting from the headnote of the law report of the Constitutional Court decision in Van der Merwe v the RAF):
“The constitutional validity or otherwise of legislation does not derive from the personal choice, preference, subjective consideration or other conduct of the person affected by the law. The objective validity of a law stems from the Constitution itself, which, in s 2, proclaims that the Constitution is the supreme law and that law [or conduct] inconsistent with it is invalid. Several other provisions of the Constitution buttress this foundational injunction in a democratic constitutional State.
“For example, s 8(1) affirms that the Bill of Rights applies to all law and binds all organs of State including the Judiciary. Section 39(2) obliges courts to interpret legislation in a manner that promotes the spirit, purport and objects of the Bill of Rights. And importantly, s 172(1) makes plain that, when deciding a constitutional matter within its power, a court must declare that any law that is inconsistent with the Constitution is invalid to the extent of its inconsistency. Thus the constitutional obligation of a competent court to test the objective consistency or otherwise of a law against the Constitution does not depend on and cannot be frustrated by the conduct of litigants or holders of the rights in issue.”
In the same case, it was decided that the minister responsible must be a party to the proceedings inasmuch as his or her views and evidence tendered ought to be heard and considered. Judicial eyebrows must surely be raised by the election of Minister Nkosazana Dlamini Zuma to play no active part in the De Beer matter.
A leading case that is instructive on the test for rationality in executive decision-making (which is what the regulations are) concerned the appointment of a new chief prosecutor, Menzi Simelane, who was known to have given perjured evidence at a public inquiry.
The court noted that reasonableness and rationality were distinct concepts, which might to some extent overlap. With regard to reasonableness, s 33 of the Constitution obliged administrators to act reasonably, and accordingly, if a decision could not have been made by a reasonable administrator, it would be reviewable.
By contrast, review for rationality was concerned with whether the means to achieve the purpose for which a power was conferred, were rationally related to that purpose. If they were, they would be constitutional. What rationality review was not concerned with was whether there were better means to achieve a purpose. The court noted that rationality comprised the lowest threshold for the validity of executive decisions, and that the test involved restraint on the part of a court.
Accordingly, it was difficult to conceive how the rationality enquiry undermined the separation of powers. In his judgment in the Simelane matter (reported as DA v The President and others), Justice Zak Yacoob came to the conclusion that the difficulties concerning Simelane’s evidence before the public inquiry were highly relevant to his credibility, honesty, integrity and conscientiousness. The minister’s advice to the president to ignore this material, and his disregard of it, coloured the rationality of the process as a whole and rendered the decision to appoint Simelane irrational. This was because the means did not rationally relate to the end: the ignoring of indications of dishonesty was inconsistent with the end of appointing a national director who was conscientious and credible. Thus the decision had to be set aside.
No legitimate purpose of government is served by using the lockdown regulations as the means of advancing the agenda of the ANC’s National Democratic Revolution. The minister has let slip, at a media conference she held on 25 April, that she regards the pandemic as a circumstance which “also offers us an opportunity to accelerate the implementation of some long agreed upon structural changes to enable reconstruction, development and growth. These opportunities call for more sacrifices and – if needs be – what Amilcar Cabral called ‘class suicide’ wherein we must rally behind the common cause.”
This ministerial utterance eerily echoes what Simelane said to his staff when he reported for duty to lead the NPA. He saw his appointment, he said, as the opportunity to impose the vision of the ANC (i.e. hegemonic control of a supposedly independent institution) on his team of state (not ANC) prosecutors. This announcement prompted the DA to sue and many prosecutors to resign.
The insistence of the minister and her legal team that she acted on the basis that the ends justify the means holes her defence of the rationality of her regulations below the waterline. She ought to have acted to ensure that the means justify the ends (or purpose) of the regulations. Following a legal “dwaalspoor” makes her appeal problematic.
Whether the regulations are reasonable and justifiable in the sense set out in section 36 of the Constitution, is an enquiry in which there is much more wriggle room and scope for argument. The court is obliged to consider (as part of the test) whether less restrictive means to achieve the purpose of the lockdown were and are available to the minister. None of the purposes of the lockdown, so it will be argued on appeal, can reasonably be said to justify strangling the livelihoods of healthy working people by forcing them to stay home, when all reasonable purposes of the lockdown can be achieved by keeping the elderly, the sickly, the overweight and those with compromised immune systems (all of whom are prey to the virus) locked down until herd immunity, a cure or a vaccine are achieved. As children who are healthy enough to attend school are, according to the Paediatric Society, not prone to getting or spreading the virus, it is surely not reasonable and justifiable to close schools due to the spread of the pandemic.
Prof Sibanda has criticised the court for using the term “paternalistic” to describe the actions of the minister. The professor launches into a philosophical and political analysis of the term in a way that is both interesting and learned. It is, however, probable that, in the judgment, the term is used by the judge as a simile for “authoritarian” rather than in the context of a political or philosophical discussion. The appeal court will, in all likelihood, duck this issue on the basis that it is not part of either of the overlapping rationality and reasonableness tests that have to be applied to the regulations impugned, with some success, by De Beer.
An interesting appeal awaits. DM