South African High Court declares Covid-19 restrictions unlawful
The High Court of South Africa has ruled that the country’s lockdown restrictions are unlawful.
The applicants in this case challenged the validity of the declaration of a national state of disaster by the Minister of Cooperative Governance and Traditional Affairs and the regulations implemented by the Minister as a result. The Minster declared a national state of disaster under the Disaster Act 2002 in March and made regulations that included closing borders and limiting exercise and attendance at funerals. Referring to other diseases affecting the South African population like TB and influenza, the applicants also argued that the government’s reaction to the pandemic and the number of deaths it caused was irrational.
The government argued that the pandemic implicates the constitutional right to life, access to healthcare and an environment that is not harmful. This being the case, the restrictions could not be set aside “on the basis that they are causing economic hardship, as saving lives should take precedence over freedom of movement and to earn a living.”
The question before the judge was whether the circumstances of Covid 19 were so extreme that invoking a national state of disaster under the 2002 Disaster Act justified the measures taken by the government.
The High Court found that the declaration of a national state of emergency was rational but Davis J was of the view that some of the lockdown regulations did not satisfy the rationality test under public law, and that their interference with the rights set out in the South African Constitution were not justified.
From the evidence presented, he believed that the government’s goal was to limit the spread of the virus with “little or in fact no regard” for the impact on fundamental rights or whether the limitation on rights was justifiable. Davis J pointed to a lack of fairness and rationality in the way the regulations impacted the country’s informal economy and domestic violence rates. By contrast, the Court found that restrictions relating to education, prohibitions against evictions, the closure of night clubs and fitness centres and the closing of borders did pass the rationality test.
Given this ruling, the Court has given the Minister of Cooperation Governance and Traditional Affairs 14 days to review and amend the regulations. During this time, the original regulations remain in place. It is likely the government will appeal this ruling to the Court of Appeal.
Click here for the decision.