Legal Briefing on Covid-19 Lockdown Judgement
Adhoc Committee on Covid-19 (WCPP)
18 June 2020
Chairperson: Ms M Wenger
Video: AD HOC COMMITTEE ON COVID-19, 18 JUNE 2020, 09:00
De Beer and Others v Minister of Cooperative Governance and Traditional Affairs (21542/2020)  ZAGPPHC 184 (2 June 2020)
The Legal Advisor for the WCPP addressed the Committee on the judgement in De Beer v Minister of Cooperative Governance and Traditional Affairs.
The North Gauteng High Court ruled that the Lockdown Regulations promulgated by the Minister of Cooperative Governance and Traditional Affairs are declared unconstitutional and invalid. This Declaration of Invalidity is suspended until such time as the Minister reviews, amends, and republishes the Regulations. The Minister is directed to comply with the Court Order within 14 business days from the date of the Order, or such longer time as the Court may, on good grounds shown, allow the Minister to report on the compliance.
The role of the National Council of Provinces (NCOP), regarding issuing of Regulations during a national lockdown, was also addressed in the De Beer judgement. The Court referred to Section 27(2). The Sections says, if a national state of disaster is declared, the Minister may, after consulting the responsible Cabinet Member, make Regulations or issue directions. It may also authorise the issue of directions related to a number of functional areas. These functional areas are listed in Section 27(2)(a) through to Section 27(2)(n).
Members were informed there seems to be an indication government will lodge an appeal against the judgement. This legal action by government will invariably extend the suspension of the Court Order.
Members were told the WCPP’s Ad Hoc COVID-19 Committee is still seized with its responsibility to give effect to its mandate and terms of reference according to the terms of those Regulations. It is advised to do so.
Members asked about the appeal process and timeframes related and what the current standing of the regulations is.
The Committee then finalised its public participation process
The Western Cape Provincial Parliament’s Legal Support Unit joined the meeting to brief the Committee on the North Gauteng High Court judgment regarding De Beer v the Minister of Cooperative Governance and Traditional Affairs (COGTA).
Apologies were sent by Ms D Baartman (DA), and Mr K Sayed (ANC).
The Chairperson welcomed Adv Romeo Maasdorp, Legal Advisor for the Western Cape Provincial Parliament (WCPP), who prepared the legal note to assist Members by giving a brief overview of the De Beer judgement.
Advisory Note regarding the recent Judgement in De Beer v Minister of COGTA
Adv Maasdorp said, in the matter of De Beer vs The Minister of Co-operative Governance and Traditional Affairs, the High Court ruled as follows:
- The Lockdown Regulations promulgated by the Minister of Cooperative Governance and Traditional Affairs is declared unconstitutional and invalid
- This Declaration of Invalidity is suspended until such time as the Minister reviews, amends, and republishes the Regulations
- The Minister is directed to comply with the Court Order within 14 business days from the date of the Order
- Or such longer time as the Court may, on good grounds shown, allow the Minister to report on the compliance.
What is important to note is the Court Order is suspended. When a High Court, or even the Constitutional Court, makes a finding declaring some or other law unconstitutional, the legislature is ordinarily granted a reasonable opportunity to amend or review the impugned legislation. This is an extension of the Separation of Powers doctrine. Courts interpret and enforce laws. This is allowed to the extent those laws are consistent with the letter and spirit of the Constitution.
Following a court judgement about legislative constitutionality, the legislature is usually first granted an opportunity to amend and/or review impugned legislation. In the De Beer matter, the Executive was granted an opportunity to reconsider the Regulations falling within the purview of the Minister’s authority.
Until the expiry of the 14 business day suspension, the validity and applicability of the Regulations remains. The Court also provided the Minister the opportunity to apply for an extension of the period of suspension. This means the period of suspension can go past the initial 14 business days. As with all judgements, there can be an appeal or an application to review the judgement. There seems to be an indication government will lodge an appeal against the judgement. This legal action by Government will invariably extend the suspension of the Court Order.
The legal status quo regarding the Lockdown Regulations will remain until after the appeal is heard. The law regarding Lockdown Regulations is currently very much in flux and unsettled, at least until a court of higher jurisdiction rules on the matter in dispute. This judgement was delivered on 2 June 2020. The WCPP Ad Hoc Committee on COVID-19 had a meeting on 3 June 2020.
A request for advice on the implications of the judgement presumably emanated from this meeting. There are a number of possible legal avenues which can be explored or exhausted by any of the litigants. Pending the appeal, it is advised, there are no immediate legal implications for the institution or the Committee itself. The effect of this judgement is merely to unlock a number of moving parts.
It will be imprudent at this stage to advise on the implications of a matter where the material facts and applicable law are not fully legally ventilated and settled. This advice is needed in anticipation of a follow-up meeting the Committee is scheduled to have on 10 June 2020.
It is submitted a national lockdown stay in place, with live and applicable Regulations, while the Court Order is suspended, and pending the appeal of the judgement. As was the case before the De Beer judgement, the WCPP’s Ad Hoc COVID-19 Committee is still seized with its responsibility to give effect to its mandate and terms of reference according to the terms of those Regulations. It is advised to do so.
Role of the NCOP Regarding the Issuing of Regulations
- The role of the National Council of Provinces (NCOP), regarding the issuing of Regulations during a national Lockdown, was also addressed in the De Beer judgement.
- In Paragraph 5.3 of the judgement, the Court started out with an overview of the relevant provisions of the Disaster Management Act (2002).
- The Court referred to Section 27(2). It provides, if a national state of disaster is declared, the Minister may, after consulting the responsible Cabinet Member, make Regulations or issue directions, or authorise the issue of directions regarding a number of functional areas as listed in Section 27(2)(a) until Section 27(2)(n).
- Reminding itself of the provisions of Schedule 5 of the Constitution, the Court finds these functional areas referred to in Section 27(2), fall within the areas of provincial legislative competence.
- Section 146(6) of the Constitution provides a law made according to an Act of Parliament or a Provincial Act can prevail, only if the law is approved by the NCOP. Section 27(2), does not enjoin the Minister to first seek NCOP approval when making Regulations according to this Section.
- The Court then finds, as Section 27(2) stands, provinces need not give prior approval for those Regulations.
- Supporting this view and interpretation, the Court resorts to Section 59(1) of the Disaster Management Act.
(See annexure for full presentation)
The Chairperson asked if the appeal process already started.
Adv Maasdorp said he believes government submitted its appeal documents on Tuesday.
The Chairperson asked if this means the current regulations remain in effect until the Constitutional Court makes any further decision.
Adv Maasdorp said the Chairperson is correct.
The Chairperson asked if there are any indications if the matter will be heard urgently, and also asked what timeline is expected for the proceedings.
Adv Maasdorp said the matter is subject to the court roll. The Registrar of the Court is responsible for the allocation of courts and judges to matters. The matter is very much an intra-constitutional code dynamic. Officials and the relevant Presiding Officers have to consider the urgency and need for legal clarity. The urgency will be a factor for the decision of the court date.
The Chairperson asked if the appeal is merely an academic exercise, given the announcement by the President the previous night.
Adv Maasdorp said it will most likely be an academic exercise. This is because it will provide a retrospective view on the constitutionality or otherwise of the regulations passed during, or in anticipation of Level Four. The relaxation articulated the previous day by the President is referred to as advanced Level Three.
He emphasised the De Beer judgement created a legal faux pas regarding the application of certain principles and confusion of the rationality and reasonableness test. According to him, Judge Davis, in the De Beer case, seemed to apply the wrong legal tests.
The Chairperson asked if citizens arrested or fined according to those regulations will have any recourse if the regulations are declared unconstitutional.
Adv Maasdorp said if someone is arrested for contravening particular regulations and the provisions of those regulations, the arrest will stand. If the arrest is, subsequent to the provisions of the legal framework which gave grounds for the arrest, not deemed to be unconstitutional, it will certainly absolve the person and the person will be entitled to recourse.
Mr A van der Westhuizen (DA) said people who pay admission of guilt fines essentially have a criminal record. He asked what this means if the regulations related to those fines are deemed unconstitutional.
Adv Maasdorp said there is no legal vacuum. The De Beer judgement declared certain regulations unconstitutional, making it invalid. Government has 14 days to make amends. Until such time as the regulations are amended, the regulations currently in place remain. The regulations will stay the same as it will be heard while Level Three is still active. People ought to pay fines if people violate the law, and must be arrested if crimes amount to arrest. The law does not just stop someone because there is a constitutional appeal pending.
Mr B Herron (GOOD) said it is inappropriate for the Committee to ask Adv Maasdorp to give legal advice about what individuals must do if faced with enforcement or police officers. The judgement never specified which regulations are unconstitutional.
Adv Maasdorp said an applicant will go to Court to ask it to declare certain regulations unconstitutional for not complying with the provisions of section 36 of the Constitution. The provisions do not comply with the Bill of Rights as far as limiting rights are concerned. The matter came before Court during Level Four. After the whole process of affidavits and documents about the legal principles were exchanged and replied to, the judgment is then confined to those affidavits. The Court can only give judgement on those matters placed on the papers before the Court. The judgement went beyond the papers. The Judgment is flawed, and the papers. The application of the rationality test principle and the comparison with the reasonableness principle is a big flaw. The judgement will probably be overturned in many respects.
The Applicant raised the constitutionality issue so far as it relates to the Bill of Rights and the limitation of rights. Judge Davis dealt with certain regulations only. He in fact highlighted in relative detail what he felt the basis is for the irrationality and the arbitrariness of those regulations. He gave what is seen as an inadequate reason for his thinking. The Court did not declare specific regulations invalid. Instead it used the few selected to declare everything unconstitutional. Judge Davis strayed outside his lane by giving judgement on methods and matters not in front of him.
The Chairperson thanked Adv Maasdorp but said the Committee must be mindful of its Standing Rules. Therefore, it must refrain from conducting conversion and reflection on the competence of officers of the Court.
Finalisation of Public Participation Process
The Committee Members must finalise the public participation and the questions Members wish to put out as part of the public participation process. In the last meeting, the Committee went over an overarching question, namely, what people experience with government during the Covid-19 pandemic. This is followed by a set of sub-questions which will dissolve a lived experience. Residents of the province will be asked to give its views and inputs through WhatsApp, voice notes, or email.
Members looked through the draft document proposal.
Mr Herron said there must be two kinds of chains of questions. The questions put forward did not get to the heart of the issue. It must address how people are impacted, either directly by the virus through testing positive, or being in close contact with the virus through high-risk exposure. He asked if it will not be more appropriate to start off by asking questions such as:
- Asking if the person was exposed to the virus.
- If yes, to ask if the person was able to self-isolate.
- Asking the person if the person was offered space in a public facility.
- Asking the person what kind of support was offered.
The Chairperson said it is sufficient to ask if individuals are exposed to the virus for the person to share the person’s experiences of the health system. This will leave the person to tell the Committee if the person has problems with anything related to this.
Mr Herron wanted to know if it can be asked where people were exposed to the virus, if the person was tested at a private or public facility, how quick the results were returned, and how the person self-quarantined. He said these are important things to understand.
The Chairperson said Mr Herron is effectively describing a questionnaire. If the Committee goes that route, it will need to think of a different set of questions to avoid posing too many questions. The Committee can do a set of infographics on those items proposed by Mr Herron. For the general advert with the list of questions, the generic questions can be kept. Another question can be added to the advert asking anyone who was exposed to the virus to share their experience of the health system. The infographic can serve to give more detailed questions.
Mr Herron agreed to this.
Mr F Christians (ACDP) said it is important to include not only victims, but the family too. There are families who lost loved ones and while loved ones could not speak anymore, the family members still could. This means the family members are able to share their experience of the system.
The Chairperson agreed it will be very helpful for family members of individuals exposed to the virus to share their experiences.
The Chairperson said the Committee will put this into the WCPP format and advert. Infographics will be published in the formal media in all three languages. This will be distributed through the WCPP channels for Members, and will be posted onto the WhatsApp group for each Committee Member to spread the word.
The Chairperson asked if there are any specific newspapers Members want the adverts posted in, besides the usual newspapers used.
Mr G Bosman (DA) said he will find it useful to make use of the George Herald. It serves the rural area of the Southern Cape.
Ms L Botha (DA) suggested the advert be posted in Die Koerant on the West Coast and Die Weslander.
Mr van der Westhuizen said the decision to advertise in various newspapers must be subject to the available budget for public participation.
Consideration and adoption of Committee Minutes
Committee Minutes dated 10 June 2020
The minutes were displayed on the screen and Members were asked to read it.
The Chairperson asked for a motion to adopt it if there are no edits.
Mr Bosman moved to adopt the minutes of 10 June 2020
Mr van der Westhuizen supported the motion to adopt the minutes of 10 June 2020.
The minutes were adopted without amendment.
The Chairperson thanked the Procedural Officers for supporting the Committee since its establishment. The next meeting will be on 15 July. The Department of Health will present to the Committee. The Chairperson thanked Members and all present at the meeting for participation.
The meeting was adjourned.
Wenger, Ms MM
Allen, Mr R
America, Mr D
Bosman, Mr G
Botha, Ms L
Christians, Mr F
Herron, Mr BN
Mackenzie, Mr R
Mitchell, Mr D
Nkondlo, Ms ND
Philander, Ms W
Van der Westhuizen, Mr AP
Windvogel, Ms R
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