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Module code: CLS2601Assignment: 01
Question 1
1. 1. Challenging Covid-19 regulations on the ground of rule of law
On the 15th March 2020, the National Disaster Management Forum classified the COVID-19
pandemic as a national disaster. In the same Government Gazette, the Minister of
Cooperative Governance and Traditional Affairs (Minister) declared a national state of
disaster in terms of section 27(1) of the Disaster Management Act. Three days later, the first
set of regulations as contemplated in section 27(2) of the Act were published.
The regulations, which triggered a nationwide lockdown, included a number of far-reaching
and unexpected restrictions and restrictions for citizens and businesses, including a ban on
all gatherings, the confinement of people to their homes, and the shutdown of all businesses
and other entities. Civil society lawyers and activists have analysed these regulations in an
on-line (and constantly updated) legal guide that identifies the multiple human rights dangers
and abuse opportunities that the legislation provide. President Cyril Ramaphosa has praised
the use of courts to fight law breaking conduct. Many of the regulations, specifically those
which purport to limit the rights contained in the Bill of Rights of the Constitution of the
Republic of South Africa 1996 (“the Constitution”), are open to be challenged since they
violate people’s rights. Lockdown regulations stated are unlawful, unconstitutional and
invalid. To challenge these regulations, relief sought has to be stated as follows:
• Declare the State of Disaster unconstitutional and not valid;
• Declare the rules unconstitutional, unlawful, and void;
• Declare gatherings permissible, or allow them subject to conditions;
• All enterprises, services, and stores should be permitted to operate, subject to appropriate
safety precautions.
These legal foundations for redress are in place to challenge the disaster and its laws on two
primary legal grounds: rationality and the constitutional limitations test. The facts surrounding
the challenge should be referred to as the "claimed unreasonable reaction to the coronavirus
itself and the number of deaths caused by it," with references to other publications,
comparisons to other diseases, country mortality figures, and so on. The court should then
give the minister a few days to examine, revise, and republish the regulations. The Minister
must republish regulations that pay full respect to the Bill of Rights' provisions. This will need
the Minister carefully considering each and every regulation she issues, in cooperation with
the relevant cabinet ministers, and the impact such regulation has on our rights.
Giving ministers or government agents the discretion to determine the extent of freedom is
the antithesis of freedom under law. The law itself, not a delegated discretion, must set out
the limitations on constitutional rights. This is why laws of general application are not only
required by the nature of the rule of law (as ensconced in section 1(c)), but also explicitly by
section 36 of the Constitution. It is regrettable, therefore, that the Disaster Management Act,
in practice if not textually, has allowed ministers to shoot from the hip, as it were, in deciding
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, when and how to deprive South Africans of their constitutional freedoms. This, it is
submitted, is more akin to the rule of man, as opposed to the rule of law.
The rights to freedom of movement and human dignity, in particular, but also by implication
the rights to privacy, property, association, freedom and security have been ignored, without
requisite section 36(1) analyses being conducted to determine whether those ‘limitations’
were justified. The courts have accepted the government's most rudimentary justifications for
its acts, with the seemingly ultimate decision being that the Bill of Rights does not, in fact,
exist during a pandemic.
1.2. Duties on parliament to involve the public in its legislative making process
Parliament consists of the National Assembly (NA) and the National Council of Provinces
(NCOP) in terms of Section 42 of the Constitution. Facilitation of involvement of the public is
a constitutional imperative. Sections 59 and 72 of the Constitution compel the National
Assembly and the National Council of Provinces, respectively, to:
“Facilitate public involvement in the legislative and other processes of the Assembly
and the Council and their committees;
Conduct their business in an open manner, and hold their sittings, and those of their
committees, in public. The Constitution, however, permits reasonable measures to be
taken to regulate public access, including access of the media, to the Houses and
their committees, provided that the exclusion is reasonable and justifiable in an open
and democratic society. Section 118(1)(a) imposes a similar obligation on the
provincial legislatures. This is reinforced by the Joint Rules of Parliament, as well as
the Rules of the NA, of the NCOP and of individual provincial legislatures; and
Sections 56(d) and 69(d) of the Constitution authorise the National Assembly and the
National Council of Provinces or any of their committees, respectively, to receive
petitions, representations or submissions from any interested persons or institutions
(1996 Constitution of the republic of South Africa)” (1996 Constitution of the republic
of South Africa)
Duties of parliament on Public access to and involvement in provincial legislatures
(1) “A provincial legislature must— (a) facilitate public involvement in the legislative and
other processes of the legislature and its committees; and (b) conduct its business in an
open manner, and hold its sittings, and those of its committees, in public, but reasonable
measures may be taken— (i) to regulate public access, including access of the media,
to the legislature and its committees; and (ii) to provide for the searching of any person
and, where appropriate, the refusal of entry to, or the removal of, any person. (2) A
provincial legislature may not exclude the public, including the media, from a sitting of a
committee unless it is reasonable and justifiable to do so in an open and democratic
society” (South African legislative framework, 2008).
There are minimum standards for effective public participation which are sets of guidelines
for meaningful public involvement in decision-making processes by those affected by the
decision involved. A public participation process should therefore provide for stages of
participation that are commensurate with the level of public interest. Parliament, in meeting
its obligation of involving the public, must endeavour to satisfy the following Minimum
Standards for Effective Public Participation as a way of involving public in its legislative
making process.
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