2020 volume 4 p 825

• Published date: 14 October 2020
• Date: 14 October 2020

[ISSN 0257 – 7747] TSAR 2020

. 4

825

Regspraak

UNRULY RATIONALITY. TWO HIGH COURT JUDGMENTS ON THE

VALIDITY OF THE COVID-19 LOCK- DOWN R EGULATION S

De Beer v Minister of Cooperative Gover nance and Traditional Affairs (21542/2020)

2020 ZAGPPHC 184 (2 June 2020)

Fair-Trade Independent Tobacco Association v President of the RSA (21688/2020)

2020 ZAGPPHC 246 (26 June 2020)

1 Introduction

The novel coronavirus (Covid-19) is an irrational aggressor, unlike homo sapiens

who provides reasons for killing m illions and millions of fellow human beings i n

bloody wars. However, the dilemmas they create for the governments of the targeted

populations are more or less the sa me. On the one hand, the state must take positive

steps to develop and apply methods to elimin ate the danger and to protect, promote

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housing, food, water, health and social ser vices, and education (s 7(2) and 26-29

of the Constitution of the Republic of South Afr ica, 1996). At the same time, the

state is faced with the ha rsh reality that the only way to keep the enemy at bay

involves steps that seriously limit the const itutional rights of its people. Steps to

deal with an emergency of this nat ure inevitably involve the factual limitation of the

right s of indiv iduals an d instit utions mo re invasive ly than wou ld be appro priate a nd

legitimate in circumstances when no emergency exists. This note focusses on the

application of rationality standa rds in two high court judgme nts when they reviewed

state action that lim its rights during the emergency.

The effect of the emergency measures a re severe and often cause resentment

and protest. Non-compliance with both the constitutional duties of the state to

protect rights and the negative duties not to interfere with rights a re actionable in

courts of law (s 34 of the constitution). In August 2020 the South African Legal

Information Inst itute (SAFLII) listed under the heading COVID-19 Judgments

no less than 192 South African judgments at high cour t level (KWWSZZZVDÀLL

org/cgi-bin/sinosrch-adw.cgi?query=COVID-19%20or%20coronavirus%20

;submit=Search;view =database-natura l;offset=0 (3-08-2020)).

Every limitation of rights is unconstitutional unless it complies with the

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Tra ns it io na l L oc al Co un ci l 2001 8 BCLR 765 (CC), 2001 4 SA 491 (CC) par 19).

In respect of childr en’s rights, the court explaine d in Equal Education v Minister of

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and immediate w ith the only limitation under s 36 of the Const itution” ((22588/2020)

2020 ZAGPPHC 306 (17 July 2020) par 54). In this case, the cou rt held that the

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the right of children to basic nutrition in s 28(1)(c) of the constitution. The state did

not provide meals to all learner s, whether they attended school or not, u nder the

National School Nutrition Program me after the partial re-o pening of public schools

on 8 June 2020.

2020 TSAR 825

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