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Constitutional Lockdown Case

Re: the Constitutionality of Lockdowns in South Africa

 

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Facts of the Case

aka: Minster of Cooperative Governance & Traditional Affairs v De Beer & Hola Bon Renaissance

  • Dates: July 1, 2021
  • Location: Bloemfontein, South Africa
  • Court: SA Supreme Court of Appeal
  • Case #: 538/2020
  • Appellant: Minister of Cooperative Governance &Traditional Affairs
  • Respondents: De Beer & Hola Bon Renaissance
  • Amicus Curiae: Council for the Advancement of the South African Constitution (CASAC)
  • Issues on appeal: the validity of section 27(2) regulations promulgated under the Act
  • Trial Type: Appeal
  • Judges: Navsa JJA; Ponnan JJA; Mbatha JJA, Rogers AJJA & Unterhalter AJJA
  • Status: Finalized
  • Verdict: Appeal upheld

 

Background

This is an appeal brought in the South African Supreme Court of Appeal, in which the Minister of Cooperative Governance and Traditional Affairs (COGTA) brought an application to appeal the court a quo court order/ handed down by Judge Davis in the Gauteng Division of the High Court, Pretoria by which the Covid-19 regulations promulgated under section 27(2) of the Disaster Management Act 57 of 2002 (‘the Act’) was declared invalid and unconstitutional. (1)

 

Significance

This was the very first case instituted against the South African Government in which the Covid-19 lockdowns were challenged Constitutionally, the Court a quo declared the lockdowns invalid and unconstitutional, subsequently this order was overturned by the Supreme Court of Appeal. (1)

 

Appellant’s Argument

  • The Minster followed due process as set out in the Act, and in so doing the Minister consulted cabinet, Minister of Health, and the National Coronavirus Command Council. (1)
  • She also obtained medical and scientific advice on the epidemiological nature of the SARS-CoV-2 virus that cause the Covid-19 illness. (1)
  • According to the Minster it is not (was not) required to get permission from the National Council of Provinces (NCOP) to promulgate regulations in terms of section 27(2) of the Act. (1)

 

Respondent’s Argument

Regulations promulgated in terms of section 27(2) of the Act is invalid and unconstitutional, as it made serious inroads to South African citizens constitutional rights. (1)

 

Relevant Prior Judgements/ Cases

No previous pandemic lockdown cases of the same nature in South Africa. (1)

 

Decision

Appeal upheld in favor of the Appellant. (1)

  • The High Court erred in not assessing on whether there was a rational link between each promulgated regulation and the purported objective it intended to address in arresting the spread of the SARS-CoV-2 virus. (1)
  • The Minster does not need authorization from the National Council of Provinces when promulgation regulations in terms of section 27(2) of the Act. (1)
  • The High court also failed to apply the rationality test appropriately. (1)

 

Aftermath

The regulations promulgated by the Minster of GOCTA in terms of section 27(2) of the Act were not invalid and unconstitutional. (1)

 

Further Research

Court Documents:
In the news:

  • …More information is needed…

 

Media

S Africa Declares Lockdowns Unconstitutional

source: eNCA

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source: ….

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source: ….

 

References

  1. Contribution by the Lawyer for the Appellant
  2. http://www.supremecourtofappeal.org.za/images/SCA2021-95.pdf
  3.  

 

Keyword

lockdowns, rationality test, constitutional validity, state of disaster, Minster of Cooperative Governance & Traditional Affairs, De Beer, Hola Bon Renaissance, Supreme Court, Appeal, South Africa

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