Esau and Others v Minister of Co-Operative Governance and Traditional Affairs and Others

• Jurisdiction: South Africa
• Judge: Petse DP, Zondi JA, Van Der Merwe JA, Plasket JA and Mabindla-Boqwana AJA
• Judgment Date: 28 January 2021
• Court: Supreme Court of Appeal
• Hearing Date: 28 January 2021
• Citation: 2021 (3) SA 593 (SCA)
• Counsel: A Katz SC (with K Perumalsamy) for the first to seventh appellants. N Arendse SC (with E Richards) for the eighth appellant. MTK Moerane SC (with NH Maenetje SC, N Muvanga and D Watson) for the respondents.
• Docket Number: 611/2020 [2021] ZASCA 9

Plasket JA (Petse DP, Zondi JA , Van der Merwe JA and Mabindla-Boqwana AJA concurring):

[1] The Republic of South Africa has been under a state of national disaster, declared in terms of the Disaster Management Act 57 of 2002 (the DMA), since 15 March 2020. The purpose of the declaration and the subsequently promulgated regulations and directions was and is to prevent and contain the spread of the SARS-CoV-2 or Coronavirus Disease 2019 (Covid-19) and to regulate the state's response to the pandemic that has caused such widespread health and economic devastation in the country. In the course of doing so, it is beyond doubt that many of the regulations and directions issued by the national executive have limited the rights of the populace. This appeal concerns the constitutional validity of certain decisions taken by members of the executive and of regulations made in order to deal with the pandemic.

[2] The relief claimed by the appellants, as applicants in the Western Cape Division of the High Court, Cape Town, was wide-ranging and included an attack on the lawfulness of the establishment and functioning of a body that has played a central role in the response to the Covid-19 pandemic — the National Coronavirus Command Council (the NCCC). In addition, a further four issues arose for determination by the court below. They were, first, whether the Disaster Regulations of 29 April 2020 were consistent with ss 26 and 27 of the DMA; secondly, whether the Minister of Co-operative Governance and Traditional Affairs (the COGTA Minister) acted in a procedurally fair and rational manner when she made those regulations; thirdly, whether certain of the regulations were unreasonable and unjustifiable infringements of fundamental rights and were invalid on that account; and fourthly, whether directions issued by the Minister of Trade, Industry and Competition were invalid for want of legality and rationality.

[3] In the court below, [1] Allie J, with whom Baartman J concurred, found in favour of the respondents — the COGTA Minister, the Minister of Trade, Industry and Competition and the President of the Republic of South Africa — on all of the issues. This had the result that the application brought by the appellants, who were acting in the public interest in terms of s 38(d) of the Constitution, was dismissed. As is customary in matters such as this, in which constitutional rights are unsuccessfully sought to

Plasket JA (Petse DP, Zondi JA , Van der Merwe JA and Mabindla-Boqwana AJA concurring)

be vindicated, no order of costs was made against the unsuccessful applicants. The matter is before us with the leave of the court below.

[4] What is the role of the courts in circumstances such as these? In Lord Aitkin's famous dissenting judgment in Liversidge v Anderson, [2] he made the point that in times of national disaster — the Second World War, in that case — 'the laws are not silent'; that 'they speak the same language in war as in peace'; and that it —

'has always been one of the pillars of freedom . . . that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law'. [3]

These words echo what had been said by De Villiers CJ in this country, more than 60 years earlier, in the matter of In re Willem Kok and Nathaniel Balie, [4] that even in times of upheaval, the courts' 'first and most sacred duty is to administer justice to those who seek it'.

[5] In other words, even in times of national crisis, as this undoubtedly is, the executive has no free hand to act as it pleases, and all of the measures it adopts in order to meet the exigencies that the nation faces must be rooted in law and comply with the Constitution. [5] The rule of law, a founding value of our Constitution, [6] applies in times of crisis as much as it does in more stable times. And the courts, in the words of Van den Heever JA in Rex v Pretoria Timber Co (Pty) Ltd and Another, [7] should even when the legislature has conferred 'vast powers' to make subordinate legislation on the executive, 'be astute to divest themselves of their judicial powers and duties, namely to serve as buttresses between the Executive and the subjects'.

[6] That is not to say that the courts have untrammelled powers to interfere with the measures chosen by the executive to meet the challenge faced by the nation. Judicial power, like all public power, is subject to the rule of law. [8] Perhaps the most obvious constraint on the power of the courts is the doctrine of the separation of powers, a

Plasket JA (Petse DP, Zondi JA , Van der Merwe JA and Mabindla-Boqwana AJA concurring)

principle upon which our Constitution is based [9] and which allocates powers and responsibilities to the three arms of government — the legislature, the executive and the judiciary. [10] What the separation of powers means in a case such as this, is that a court may not set aside decisions taken and regulations made by the executive simply because it disagrees with the means chosen by the executive, or because it believes that the problems that the decisions or regulations seek to address can be better achieved by other means: the wisdom of the executive's exercises of power is not justiciable, only its legality. Somewhat cynically, Schreiner JA, in Sinovich v Hercules Municipal Council [11] said that '(t)he law does not protect the subject against the merely foolish exercise of a discretion by an official, however much the subject suffers thereby'.

[7] The point must be stressed that the function of the court is to vet the challenged decisions and regulations made in terms of the DMA for their regularity, and not their wisdom. The reason for this was highlighted by Laws J in R v Somerset County Council, ex parte Fewings and Others, [12] a case concerning the review of a decision by a local government to prohibit stag-hunting on land owned by it, and which had elicited intense public responses in favour of and against the decision. He said:

'Although judicial review is an area of the law which is increasingly, and rightly, exposed to a good deal of media publicity, one of its most important characteristics is not, I think, generally very clearly understood. It is that, in most cases, the judicial review court is not concerned with the merits of the decision under review. The court does not ask itself the question, "Is this decision right or wrong?" Far less does the judge ask himself whether he would himself have arrived at the decision in question. It is, however, of great importance that this should be understood, especially where the subject matter of the case excites fierce controversy, the clash of wholly irreconcilable but deeply held views, and acrimonious, but principled, debate. In such a case, it is essential that those who espouse either side of the argument should understand beyond any possibility of doubt that the task of the court, and the judgment at which it arrives, have nothing to do with the question, Which view is the better one? Otherwise, justice would not be seen to be done: those who support the losing party might believe that the judge has decided the case as he has because he agrees with their opponents. That would be very damaging to the imperative of public confidence in an impartial court. The only question for the judge

Plasket JA (Petse DP, Zondi JA , Van der Merwe JA and Mabindla-Boqwana AJA concurring)

is whether the decision taken by the body under review was one which it was legally permitted to take in the way that it did.'

[8] In what follows, I shall first outline the principal provisions of the DMA that are relevant for purposes of this appeal. I shall then set out the background to the matter, focusing on the chronology of events that led to the making of the impugned decisions and regulations. Finally, I shall consider the attack on the role and function of the NCCC, the challenge to the validity of the regulations made by the COGTA Minister and the challenge to the validity of the directions issued by the Minister of Trade, Industry and Competition.

The DMA

[9] The DMA's principal purpose is to provide 'an integrated and coordinated disaster management policy that focuses on preventing or reducing the risk of disasters, mitigating the severity of disasters, emergency preparedness, rapid and effective response to disasters and post-disaster recovery and rehabilitation'. [13] It seeks to achieve this purpose by creating structures and processes for dealing with disasters on the national, provincial and local levels. [14] It defines a disaster as 'a progressive or sudden, widespread or localised, natural or human-caused occurrence' which has the effect of either causing or threatening to cause 'death, injury or disease'; 'damage to property, infrastructure or the environment'; or 'significant disruption of the life of a community'; and 'is of a magnitude that exceeds the ability of those affected by the disaster to cope with its effects using only their own resources'. [15]

[10] The DMA applies when a disaster is not serious enough to justify the declaration of a state of emergency, but serious enough that the ordinary law cannot deal with it. [16] It is administered by a Minister designated by the President. [17] In the current state of disaster, that Minister is the COGTA Minister.

[11] Apart from allowing for the making of regulations, the DMA also creates and empowers a range of administrative bodies and authorises a variety of actions during the currency of a state of disaster. In addition, empowerments in other laws can also be used to deal with a disaster, as has happened with the present Covid-19 disaster, through the use of unemployment insurance funds in terms of the Unemployment...