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Is the South African judiciary leading the way in a closer scrutiny of lockdown regulations?

With governments extending their powers under emergency regulations and with the parliamentary opposition and courts being relatively silent around the world, Covid-19 is impacting the institutional balance of power in favour of the executive. In South Africa, however, the judicial branch has shown its teeth in declaring that the lockdown regulations do not satisfy a rationality test and are thus unconstitutional.

In March, South Africa was among the countries that imposed severely restrictive Covid-19 lockdowns – including bizarre and arbitrary measures such as a ban on the sale of cooked food and tobacco products. While citizens in many countries have taken their States to court in order to have the lockdown measures cancelled, South Africa has so far been the only country where a court has declared some of the coronavirus lockdown regulations unconstitutional and invalid. As the government was given two weeks to review the regulations, they have continued to be in force until now. Some commentators have described the situation as a lifting of the most serious civil rights restrictions since the Apartheid regime.

Judge Norman Davis, hearing the case in appeal, did not deny that “the Minister had acted rationally in declaring a National State of Disaster pursuant to an assessment of the potential magnitude and severity of the Covid 19 pandemic”, but stresses that “in every instance where the exercise of executive power impacts on or infringes on those rights of people enshrined in […] the Constitution, an evaluative exercise must be undertaken to determine the extent of the infringement and the social impact thereof”.

As court cases are pending in other countries, the South African court’s conclusions are regarded as a hopeful development by those who worry about the curtailment of civil rights. In particular, the court ruled that “the regulations … in a substantial number of instances are not rationally connected to the objectives of slowing the rate of infection or limiting the spread thereof”. Moreover, the lockdown regulations were deemed not to satisfy the “rationality test”, making their encroachment on and limitation of rights guaranteed in the Bill of Rights contained in the Constitution not justifiable in an open and democratic society based on human dignity, equality and freedom.

As many governments have declared the state of emergency since the corona outbreak and have extended their powers accordingly, it is vital that courts play an active role in safeguarding constitutional rights. After the Ecuadorian Constitutional Court’s ruling in May that some fundamental rights can never be suspended, not even in a state of emergency, the South African judiciary is to be applauded for showing its teeth by upholding citizens’ unalienable rights.

Author: Olivier Vonk

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