CO-VID 19 UPDATE
Section 27 of the Disaster Management Act 57 of 2002 (“the DMA”), referred to as the Lockdown regulations or CO-VID 19 regulations have so far governed the current living conditions of all people residing in South Africa.
These regulations were recently challenged in the case of De Beer and Others v Minister of Cooperative Governance and Traditional Affairs (21542/2020) [2020] ZAGPPHC 184 (2 June 2020), which was heard in the Pretoria High Court.
In the above case, the validity of the declaration of a National State of Disaster by the respondent, being the Minister of Cooperative Governance and Traditional Affairs (“the Minister”), and the regulations promulgated by her pursuant to the declaration are being called into question.
It was argued that the Minister who had implemented the lockdown regulations did not rely on S27 of the DMA but rather relied on:
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The Magnitude and severity of the CO-VID 19 outbreak;
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The Declaration of the outbreak as a pandemic by World Health Organization;
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The classification thereof as a national disaster by Dr Tau;
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The need to augment the existing measures undertaken by organs of state to deal with the pandemic and;
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The recognition of special circumstances warranting such declaration.
However, the Court held that the CO-VID 19 regulations are subject to the rationality test which is “In every instance where the power to make a specific regulation is exercised, the result of that exercise, namely the regulations themself must be rationally related to the purpose for which the power was conferred”.
When the rationality test was applied and tested by the Court, the answer to the test was negative and the Court held that the Minister had not demonstrated that the limitation of the Constitutional rights had been justified in the context of section 36 of the Constitution of the Republic of South Africa, 1996.
Consequently, when the application was considered as a whole, The Court declared the regulations promulgated in terms of the DMA to be unconstitutional and invalid.
The declaration of invalidity is suspended until the regulations are amended and republished with due consideration for the limitation each regulation has on the rights in the Bill of Rights.