Article by: Nevashni Moodley
Yesterday the North Gauteng High Court declared Alert Level 4 and 3 Regulations unconstitutional and invalid.
The Court applied Section 36 of the Constitution (“the limitation test”) which dictates that if the exercise of public power infringes on, or limits a constitutionally entrenched right then such limitation must be justifiable based on human dignity, equality and freedom.
If a measure taken by the South African government is not rationally connected to a permissible objective, the lack of rationality would result in such a measure not constituting a permissible limitation of a constitutional right.
A substantial number of the regulations relating to Alert Levels 4 and 3 are not rationally connected to the objectives of slowing the rate of infection or limiting the spread thereof.
The court went on to state that the Minister’s approach, based on the evidence before it, was not:
“how can we as government limit Constitutional rights in the least possible fashion whilst still protecting the inhabitants of South Africa?” but rather “we will seek to achieve our goal by whatever means, irrespective of the cost and we will determine, albeit incrementally, which Constitutional rights you as the people of south Africa, may exercise”.
The declaration of unconstitutionality and invalidity of these regulations are suspended until such time as the Minister, in consultation with the relevant parties, reviews, amends and republishes regulations with due consideration to the limitation each regulation has on the rights guaranteed to South Africans in terms of the Bill of Rights. This process must be completed within 14 business days, or such longer time as the court may allow, and good cause shown by the Minister.
During the period of suspension, the regulations published in Government Gazette No 43364 on 28 May 2020 designated as “Alert Level 3”, shall apply. This essentially means the status quo remains the same for now.
The regulations regarding the prohibition of the sale of tobacco and related products was not dealt in the court order, and is postponed until the finalisation of another case dealing specifically with this issue.