June 4, 2020

South Africa’s High Court ruled Wednesday that some of the level 3 and 4 lockdown measures put in place to slow the spread of COVID-19 were “unconstitutional and invalid,” ordering a 14-day period to overhaul the restrictions.

At the start of the pandemic, South Africa had the most restrictive lockdown measures, including a ban on alcohol and cigarette sales. The lawsuit, filed by the Liberty Fighters Network advocacy group in May, argued that the ANC government’s reaction to the epidemic violated South Africa’s Bill of Rights.

While the lockdown measures have been reduced from level 5 to level 3, Judge Norman Davis declared that the contraventions did not satisfy the “rationality test” in public law and intruded on the freedoms expressed in the Bill of Rights. Irrationality can be expressed as citizens were able to “buy a jersey but not undergarments or open-toed shoes.”

9.3 In every instance where “means” are implemented by executive austity in order to obtain a specific outcome an evaluative exercise must be taken insofar as those “means” may encroach on a Constitutional right, to determine whether such encroachment is justifiable. Without conducting such an enquiry, the enforcement of such means, even in a bona fide attempt to attain a legitimate end, would be arbitrary and unlawful.

9.4 Insofar as the “lockdown regulations” do not satisfy the “rationality test”, their encroachment on and limitation of rights guaranteed in the B 11 of Rights contained in the Constitution are not justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated in Section 36 of the Constitution.

This judgement gains significance in India as the court had ordered rendering the lockdown unconstitutional while still being able to adhere to the strict principles of “Separation of Powers” .

………… Courts must always remain alert to the principles of separation of powers. The Chief Justice has explained the principle as follows:
“The Judiciary is but one of the three branches of the government. It
does not have unlimited powers and must always be sensitive oF the
need to refrain from undue interference with functional independence of other branches of the government. Court ought not to blink at the thought of asserting their authority, whenever it is constitutionally permissible do so, irrespective of the issues or who is involved. At the same time, and mindful of the vital strictures of their powers, they must be on high alert against impermissible encroachment on the powers of the others arms of government

This is in complete contradiction to the experience of the Indian Supreme Court which has been considered more of an “activist Court” and had time and again found strict adherence to the principle of separation of power very difficult to live by.

The judgement is a shining example of how the courts can achieve “social objective” without the need to exceeds its brief or jurisdiction.

Since March 26, Police Minister Bheki Cele reported 230,000 cases open for violating lockdown regulations, with 35,812 confirmed COVID-19 cases and 755 deaths so far.

See the order