Constitutional Law
| Author | Brickhill, J. |
| Published date | 28 March 2022 |
| Date | 28 March 2022 |
| Pages | 153-222 |
153
1. INTRODUCTION
The year in review again t hrust the Constit utional Court into the centre
of political controversy. The court had to resolve debates about the ethics
of President Ramaphosa’s conduct in his campaign to lead the African
National Congress.1 It had to deal with former President Zuma’s refusal to
testify before the State Captu re Commission.2 It had to navigate these highly
charged waters careful ly.
But the Constitutional Court al so had a busy year deciding a range of
less politically fraught but no less importa nt issues of constitutional law. It
held that the crime of incitement was u nconstitutional, but only if someone
incite s offences other than ‘serious crimes’ (whatever that means).3 It upheld
a range of challenges to the state’s practice of surveilli ng South African s.4
It upheld the rights of children born to South A frican parents,5 t he right of
domestic workers to occupational compensation,6 and the r ights of Black
women still stuck in ma rriages governed by discri minatory laws.7 It str uck
down the power of the Minister of Health to d ictate which drugs can be
* LLB (UCT) MSt (Oxon); Director of Litigation, Socio-Economic Rights Institute of South
Africa (SERI); Member of the Johannesburg Bar; DPhil Candidate and Tutor in Human Rights
Law, University of Oxford; Honorary Research Associate, University of Cape Town; Research
Director, Oxford Human Rights Hub. ORCID: https://orcid.org/0000-0002-3871-1524.
† BA LLB LLM (Pretoria) LLM (Columbia); Member of the Cape Bar.
1 Public Protector v President of the Republic of South Africa 2021 (9) BCLR 929 (CC).
2 Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and
Fraud in the Public Sector including Organs of State v Zuma 2021 (5) BCLR 542 (CC) and Secretary
of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the
Public Sector including Organs of State v Zuma 2021 (5) SA 327 (CC).
3 Economic Freedom Fighters v Minister of Justice and Correctional Services 2021 (2) SA 1 (CC);
4 AmaBhungane Centre for Investigative Journalism NPC v Minister of Justice and Correctional
Services; Minister of Police v AmaBhungane Centre for Investigative Journalism NPC 2021 (3) SA 246
(CC).
5 Chisuse v Director-General, Department of Home Affairs 2020 (6) SA 14 (CC).
6 Mahlangu v Minister of Labour 2021 (2) SA 54 (CC).
7 Sithole v Sithole 2021 (5) SA 34 (CC).
Constitutional LawConstitutional Law
Jason Brickhill*, Michael Bishop†
2020/2021 YSAL 153
© Juta and Company (Pty) Ltd
YeArbooK oF south AFrICAN LAW
154
crim inal ised,8 t he way in which ar rest warrants in extradit ions are issued,9
and a statute that failed to ensu re sufficient indepaendence for the Judicial
Inspectorate of Correctional Services.10 It upheld challenges to testame ntary
instruments t hat excluded female descendants11 and adopted children.12
Finally, the courts are still dea ling with constitut ional issues raised by
the COVID-19 pandemic. The SCA addressed two13 broad-based challenge s
to those regulations, la rgely rejecting them both.
This chapter therefore covers a broad range of is sues. It first deals with
the two cases concern ing COVID regulations. It then tackle s the cases
affecting t he structures of government. Most of the chapter is devoted to the
cases affect ing constitutional rights.
2. COVID-19
In last year’s chapter, we reviewed a spate of litigation related to the
COVID-19 pandemic, including challenges to lockdown regulation s, issues
related to the use of force, and rights lim itations occa sioned by restrictions.
While the pandemic ha s not abated, the past year has seen COVID-19-
related litigation decrease. However, the Supreme Court of Appeal (SCA)
made two important decisions about ch allenges to lockdown regulations in
Esau and De Beer, two cases that we reviewed last year following the High
Court judg ments.
2.1 ESAU: THE NATIONAL CORONAVIRUS COMMAND COUNCIL
AND LOCKDOWN REGULATIONS
Esau v Minister of Co-Ope rative Governance and Traditional Affairs14 reac hed
the SCA as an appeal against a n unsuccessful c hallenge that targete d the
lawfulness of the establi shment and decisions of the Nationa l Coronavirus
Command Council (NCCC) and a challenge to t he ‘level 4’ lockdown
regulations. In a judgment by Plasket JA, the SCA dism issed the appeal,
save for upholding the challenge to two regulat ions.
Regarding the NCCC, the SCA held that the NCCC was a cabinet
committee, and the cabinet m ay function through com mittees. Decision s
taken by cabinet commit tees are binding on t he entire cabinet as much
8 Smit v Minister of Justice and Correctional Services 2021 (1) SACR 482 (CC).
9 Ibid.
10 Sonke Gender Justice NPC v President of the Republic of South Africa 2021 (3) BCLR 269 (CC).
11 King NO v De Jager 2021 (4) SA 1 (CC).
12 Wilkinson v Crawford NO 2021 (4) SA 323 (CC).
13 Esau v Minister of Co-Operative Governance and Traditional Affairs 2021 (3) SA593 (SCA) and
Minister of Cooperative Governance and Traditional Affairs v De Beer [2021] 3 All SA 723 (SCA).
14 2021 (3) SA 593 (SCA).
© Juta and Company (Pty) Ltd
CoNstItutIoNAL LAW 155
as decisions taken by the e ntire cabinet in a cabine t meeting. The NCCC’s
policy decision was therefore a valid deci sion of the cabinet.15 The SCA
held further that the c hallenge regarding t he NCCC’s authority also fa iled
because it was moot, as the NCCC’s decisions have no legal effect.16
The appellants had also c hallenged the level 4 regulat ions on the basis
that they were inconsistent with ss 26 a nd 27 of the Disaster Management
Act (DMA)17 because they did not merely augment existi ng legislation but
effectively purported to amend it.18 The SCA expres sed doubt about the
correctness of th is argument, but rejected it for a simpler reason – that it had
not been properly pleaded in the founding papers, but raised only i n reply.19
The next challenge concer ned the procedural fairne ss of the level 4
regulations and whether t hey were procedurally rational. Plasket JA
approached the procedural fairne ss inquiry on the ba sis that the maki ng
of regulations constit utes administrat ive action in terms of s 33 of the
Constitution and s1 of the Promotion of Admin istrative Justice Act (PAJA).20
This findi ng on its own is significant for admin istrative law. The appellants’
complaints were that adequate notice of the proposed admi nistrative action
was not given in the invitation to make repre sentations and that, because of
the short return day, a reasonable opportun ity to make representations was
denied to members of the public.21 Plasket JA held that s4 of PAJA applies
to the making of subordi nate legislation and that, whatever procedure was
chosen, it must comply with the procedural fairne ss requirements of s 3.22
The SCA emphasised that the ‘[t]he rules of procedural fairne ss are not to be
applied by rote, but flexibility and contextual ly, due regard being had to the
empowering statute.’23 After a car eful factual analysis, Plasket JA concluded
that the process had been fai r, holding in particular t hat the minister h ad
provided sufficient detail of the propos ed regulations to the public and that,
in the circum stances, the short two-d ay period for public comment was
fai r.24 For the same r easons, observing that the mak ing of regulations would
be subject to legality review even if it was not adm inistrative action, the
SCA also held that the procedure followed was rational. 25
Finally, the SCA turned to the const itutional r ights cha llenge. Plasket JA
held that ‘the seriousness and the magn itude of the threat to life brought
15 Para 57.
16 Para 51.
17 57 of 2002.
18 Para 59.
19 Para 60.
20 3 of 2000.
21 Para 92.
22 Para 91.
23 Para 93.
24 Paras 94–104.
25 Paras 101–103.
© Juta and Company (Pty) Ltd
To continue reading
Request your trial