The government is staring down the barrel of a governance and credibility crisis if more courts find that the legislation and regulations governing SA’s Covid-19 lockdown are unconstitutional.
It is fighting a number of court challenges to regulations put in place to curb the spread of the coronavirus, as well as challenges to sections of the Disaster Management Act (DMA), which will all affect its strategy.
On Wednesday, the high court in Pretoria is expected to hear the government’s application for leave to appeal a judgment that found the level 4 and 3 regulations invalid and unconstitutional. That case was brought by Reyno de Beer of the Liberty Fighters Network.
SA’s months-long lockdown has placed the government in unknown territory. With these already uncertain times, the questions around how the government implements the provisions in the Act, which hasn’t been used to this extent since it became law, have just grown louder.
The outcome of these questions was a flurry of lawsuits that have the ability to break the back of the public’s ever dwindling support of the lockdown if the government loses.
This week the high court in Pretoria will also hear the Freedom Front Plus’s challenge to the constitutionality of the DMA. The DA has in a separate matter approached the Constitutional Court also challenging the Act.
This takes place as the court’s judgments on the challenge by the Fair Trade Independent Tobacco Association to the ban on the sale of tobacco products and One SA Movement leader Mmusi Maimane’s court challenge on the reopening of schools are still outstanding.
A group of University of Cape Town (UCT) students have also hauled the government to court over the constitutionality of the national coronavirus command council.
Lawson Naidoo, of the Council for the Advancement of the SA Constitution, said the effect of these cases on governance is what is critical, especially in the absence of formal parliamentary oversight over the regulations.
“What the court has to say is going to be very important in terms of what is expected of the government acting in terms of the Disaster Management Act. That is something that has still not been verified,” he said.
The courts had given some guidance, but were wary of being overly prescriptive because of the doctrine of separation of powers.
“I don’t think that things have been really clarified.”
Naidoo said the closest the courts came to this was in the Liberty Fighters Network case. He said though the judgment was a “mess”, the issues that were being raised were critical ones around the rationality test for regulations made under the DMA.
“The judgment does not answer that, but I think it is the right question. We need some judicial clarity in terms of what is the test for rationality when we look at any or all of these regulations being made.”
In terms of the DMA, Naidoo said the courts would be reluctant to declare the Act itself unconstitutional, but would likely be able to say the exercise of the government’s power under the Act is irrational, which would have repercussions for the regulations and would establish a legal test for all regulations to be scrutinised.
Regulatory power
Richard Calland, an associate professor in public law at UCT, said the question was whether the regulatory power given to the government under the DMA is excessive and whether it goes too far in terms of lawmaking authority. He said the executive could not “make policy through the back door of the DMA”, as it seemed to be doing with the ban on the sale of tobacco products.
“That really is the constitutional point, and on that kind of issue, I think the government is really going to run into trouble because what it has to show is that any regulation or decision taken under the DMA has to be rationally connected to the purpose. Now the purpose of the DMA or the declaration of a national disaster is to confront the threat posed by Covid-19.”
Despite all these court challenges, and whether the government wins or loses, it still needs to carry on governing and taking action as SA deals with the coronavirus pandemic.
The biggest implication for President Cyril Ramaphosa’s government in all of this is the impact on its already waning credibility.
Calland said the high court judgment against level 4 and 3 regulations already had an effect on opinion, social behaviour and compliance.
“The public seeing the court overturning the government, or saying the government got it wrong or behaved illegally or unlawfully … stretches credibility further and undermines, therefore, the government’s ability to maintain the trust, consent, and compliance of the public,” he said.
Naidoo said public support waned because of people’s failure to understand the justification for some of the regulations imposed and lack thereof for some regulations that were lifted, such as the opening of places of worship, cinemas and casinos.
“It’s not just the imposition but the lifting of the restrictions — do they make sense to ordinary people? And, in many instances, they don’t, and this is where the trust deficit between government and the citizenry is widening at the moment,” he said.
This possible credibility crisis is one that should give Ramaphosa and the ANC nightmares. It is, after all, a year until the local government elections in which the government’s Covid-19 response could provide cannon fodder for opposition parties.
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