Former Public Protector, Thuli Madonsela, has penned an open letter to the President (published in the Financial Mail on 4 June) in which, invoking The Little Prince, she queries the reasonableness of the lockdown put in place to counter the pandemic sweeping the country. She puts it thus:

“We must remember, Mr President, that public policies and conduct must not only pass the reasonableness test in a court of law, they should also pass that test in the court of public opinion. The king in The Little Prince learnt that to derive legitimacy, laws must also be just, fair and reasonable in the court of public opinion.”

Professor George Devenish makes the same point when he argues that a democratic government should lead by consent, not by demand.

Judge Norman Davis, in the much discussed De Beer matter appears to have been required to address a different and much narrower question: do the lockdown regulations conform to the rule of law’s rationality requirement? This question is rooted in the doctrine of legality which postulates that a legitimate purpose of government must be served for the regulations to pass constitutional muster. By apparently relying on the notion of “rational justification” for the regulations the learned judge has caused some confusion as he appears to be running the rationality issue before him into the reasonable and justifiable limitation of guaranteed human rights issue, which may, or may not, have been before him.

There can be no doubt that the lockdown has limited the rights usually enjoyed by those who live in SA. Many of these rights are guaranteed in terms of the Bill of Rights: dignity, equality, freedom of association, movement, fair labour practices, bodily and psychological integrity and the right to education as well as the freedom to trade, occupation and profession, inter alia, are limited by the manner in which the lockdown is being regulated.

The main rationale for the lockdown is the preservation of the right to life of those vulnerable to the virus (the elderly, the overweight, the sick and those with compromised immune systems) and the facilitation of the duty of the state to make access to healthcare available to those infected. Life and access to healthcare are rights that appear in the Bill of Rights, the latter being largely subject to progressive realisation on the basis of resources available to the state. No one may be refused emergency medical care.

The two burning legal questions are whether what has been done under the mantle of the declaration of a state of disaster has been reasonable in its limitation and restriction of human rights guaranteed to all and a rational response to the health and life of vulnerable people in a way that serves a legitimate purpose of government.

The epidemiologists tell us that worldwide 0.076% of the population has been infected and 0.005% of those infected have died of Covid-19. In SA the comparable figures are 0.045% and 0.001%. In general Africa’s young population is weathering the pandemic better than most continents.

The test for reasonableness, as it applies to limitation of guaranteed human rights, is spelt out in the provisions of section 36 of the Constitution:

“(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.”

The provisions of Article 4 of the International Covenant on Civil and Political Rights reinforce these provisions:

“1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”

SA has signed and ratified the covenant.

The requirement of proportionality in the Covenant envisages measures that are “strictly required by the exigencies of the situation” which echoes the test in the Constitution of SA which is “that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.”

Much legal ink will be spilt on whether the lockdown entails (im)permissible limitations on guaranteed rights or derogates from them and on whether the state of disaster is covered by the wording of the treaty. Either way, the tests, one for reasonableness and the other of rationality are sure to be used in the courts and they are not co-extensive in their import. Rationality is a common law principle that derives from the rule of law. Reasonableness (and justifiability) restrain the state in the manner set out in Section 36 as quoted above.

Because the reasonableness test posits “less restrictive means to achieve the purpose” of the lockdown there is much scope for arguing, given the impact of the pandemic in SA, that it was unreasonable to isolate those not prone to getting infected. Would it not have been far more appropriate and far less restrictive to isolate those in danger of infection? So, for example, keeping children out of school because a mere handful of children (with co-morbidities) have become infected is not a reasonable measure.

What then ought to inform a rational response by the COGTA Minister? (This appears to have been the question Judge Davis answered in his judgment invalidating most of the regulations made)

1. First, she should have asked herself to what extent compulsion was necessary or, to put it in obverse form, to what extent members of the public might be expected to protect each other (and, debatably, themselves) in the face of the disease. The answer to this would demonstrate where regulation might potentially be required to minimise the incidence and gravity of the disease. Judge Davis showed some understanding of this fact when he criticized the Minister for paternalism.  In doing this he was right. Constitutional democracy is the antithesis of authoritarianism; the consent of those governed is required.

2. Once she had made her decision, she should have considered what level of compulsion was required to retard or prevent the spread of the disease. In making the decision, her point of departure was to respect prevailing, constitutionally entrenched rights and only then to decide to what extent they should be circumscribed in order to strike the appropriate balance between plague and poverty (including hunger, malnutrition and starvation).  The Minister has shown scant understanding of this fact. Professor Jeremy Seekings of UCT warns that hunger now stalks the land. A land in which food production has been unaffected by the pandemic and a third of food is scandalously thrown away.

3. In determining how to respond, the Minister must determine specifically what object is principally sought to be attained.  Initially, the narrative was to prevent people from contracting the disease; then it was to spread the rate of infection so that it would waste away in consequence of herd immunity; finally it was to flatten the curve so that the hospital services could be expanded to a level where they could cope. Undeniably, the timing of interventions would differ depending on the objective. No effort seems to have been made by the Minister to make these distinctions. Indeed, her response to the application before Judge Davis appears to have been informed by haughty authoritarianism or the over-confidence of her “paternalistic” approach, or, possibly, poor legal advice.

4. By reference to the specific objective, measures should be adopted that strike a sensible balance when weighed against other imperatives. Placing the population under house arrest is obviously a very extreme measure as it limits freedom of movement and association severely. Had it not been implemented to some extent in many other countries in the world, it might appear to be legally disproportionate. Other countries do not all have the benefit of a “state of the art” Bill of Rights like ours in SA. Past epidemics have been dealt with less drastically and it is the sickly, not the healthy, who typically are placed in isolation. Supposing, though, that such a measure was rational, provision would have to be made for the unavoidable exigencies of life – security, food, and other essential services. Without such exceptions, the lockdown would manifestly be irrational.  The provision of adequate food to those eking out an existence on the margins of the economically active elements of society ought to have been front and centre; but clearly, has not been.

5. In determining what the exemptions should be, the Minister must identify and weigh up the exigencies by reference to the needs and values of the community. Is exercise important? Is religious observance? Are active employment, recreation, travel, food, smoking tobacco, drinking alcoholic beverages etc? In making these assessments, the Minister necessarily works with imponderables, but this is nothing new in law.  Essential to the debate is the extent to which the ban will contribute to the attainment of, first, the specific objective referred to above and, secondly, some other societal value regarded as important. Smoking seems to be related, if at all, only tenuously to the objectives and the purchase of cigarettes even less so, so a ban on the purchase of cigarettes is seemingly irrational.  Mourning, however, has a crucial role to play in our sense of community, so permitting funerals but limiting attendance can have the appearance of rationality.

6. In deciding whether the Minister weighed up the considerations rationally, it is permissible to make comparisons between what is permitted and what is banned. For example, permitting two domestic servants to enter a house but banning the same number of visitors may seem irrational. But it ceases to be so if work is rationally treated as more consequential than socializing.  So too, permitting people to exercise on the esplanade but not on the beach. The problem with making comparisons, however, is the usual one: if the disparity is irrational, should it be cured equalizing up or down – that is, by permitting both or by prohibiting both?

7. Making comparisons is a matter of selecting criteria for comparison and this is, in itself, a matter left to the rational judgment of the Minister as informed by the state’s obligation to respect human rights.  If we make the act of running the basis of comparison, it is irrational to permit running on the esplanade but not on the beach provided there is no tendency to congregate on beaches rather than running alone. It has long been apparent that the virus is not easily or often transmitted outdoors. 

a. Given that the Minister is charged with selecting the criteria for comparison, it is dangerous to contend that a ban is irrational because the conduct, seemingly innocuous,  is not banned in other contexts.  The Minister can rationally conclude that running on the beach should be banned even though running in the street is not only if the ban serves some legitimate purpose of government.

b. For the same reason, it is generally dangerous to contend that a ban is per se irrational because something, seemingly comparable, is not also banned.  The fact that domestic workers can enter a household but guests cannot is not per se irrational. The workers need to earn, the householder needs their services, but visits by guest can arguably be seen to be gratuitous and so expendable.

Tested on its own premises, the greatest weakness in Judge Davis’ decision, is that it seems to fail to appreciate these points.  He makes comparisons and deduces irrationality from them in ways that are, with respect, arguably untenable.

However, the real problem with the judgment is that it stakes out its territory far too narrowly. The reliance on this etiolated form of rationality is entirely sensible at common law, but reasonableness analysis under a Bill of Rights is far more robust. The interests invaded by the lockdown are pertinently protected under the Bill of Rights and so the invasive provisions must be tested for reasonableness under the limitation clause. Reasonableness is a much more powerful standard than rationality: it requires that a measure be, not right and proper, but at least with a range of reasonable options the Minister might adopt. Many of the provisions fail to pass muster under the limitation clause, and for this reason the prospects of the government on appeal are not as rosy as some commentators suggest they are.  If the International Covenant is applicable, can it seriously be said that the restrictions of the lockdown have been strictly necessary? They would, in the main, appear to be disproportionate, given the epidemiological statistics cited above.

On 25 April the Minister let slip during a media briefing that she regards the pandemic as an opportunity “to accelerate the implementation of some long agreed upon structural changes to enable reconstruction, development and growth” and possibly to consider “class suicide”. Much of the economic discussion in the NEC of the ANC since then has been pure National Democratic Revolution-speak. These indications, as described by RW Johnson in Politicsweb, suggest that there is an ulterior “revolutionary” motive behind the regulations, not any legitimate purpose of government. That renders the regulations invalid.

It can never be a legitimate purpose of a government, in a constitutional democracy with a justiciable Bill of Rights and operating under the rule of law, to foment a revolution or contemplate “class suicide” (the meaning of which has been explained previously in Politicsweb).

All cabinet ministers are sworn to uphold the law and the Constitution. The appeal procedures now set in motion by the national cabinet will determine whether the COGTA Minister’s regulations pass muster.

Paul Hoffman SC is a director of Accountability Now. [Full disclosure: he is elderly, overweight, sickly and has a compromised immune system]