Constitutional Law

Constitutional Law Jason Brickhill * and Michael Bishop † 1 INTRODUCTION The inaugural volume of this publication was a highly significant year for constitutional law for several reasons. Since the 17th Amendment1 to the Constitution of the Republic of South Africa, 1996 (Constitution) expanded the jurisdiction of the Constitutional Court, the court’s caseload has continued to expand.2 The Constitutional Court now receives more than 400 new applications a year and hands down in excess of 50 judgments per year. in contrast, in the early 2000s the court handed down about half that number of judgments annually. The expanded jurisdiction of the Constitutional Court is not the only reason for an increase in constitutional litigation. The High Courts have also seen an increase in the number of constitutional matters decided, without any jurisdictional changes to prompt it. In the years following the adoption of the Constitution, the familiarity of lawyers and courts with it has grown, bringing a recognition that the Constitution applies, directly or indirectly, to all areas of the law. Having written the chapter on constitutional law for the predecessor to this work, the Annual Survey of South African Law, since 2009, we have witnessed this steady growth and development of the jurisprudence. The year under review was also massively affected by the COVID-19 pandemic, which raised a number of significant constitutional issues relating to governance and human rights. It prompted the promulgation of sweeping regulations and a spate of litigation. In this chapter, we consider the constitutional dimensions of those regulations and cases. * LLB (Cape Town) MSt (Oxon); 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: 0000-0002-3871-1524. † BA LLB LLM (Pretoria) LLM (Columbia); Member of the Cape Bar. 1 Constitution Seventeenth Amendment Act 72 of 2012. 2 See chapter 2 ‘Jurisdiction’ in M du Plessis, G Penfold and J Brickhill Constitutional Litigation (2013). 158 Yearbook_of_South_African_Law_05.indd 158 2020/12/30 12:03 CONSTITUTIONAL LAW 159 We begin by discussing the regulations promulgated in response to COVID-19, focusing on their implications for the separation of powers and governance, and the restrictions on rights that they imposed. Those constitutional implications formed the basis of the litigation that followed, most of it decided at High Court level by way of urgent applications. In part 2.2, we discuss these cases, beginning with the various general challenges to the declaration of a state of national disaster and to the Lockdown Regulations as a whole. We turn, secondly, to consider the litigation regarding state grants provided to individuals and businesses in an attempt to mitigate the economic harm of the pandemic. The courts tested the criteria governing the business funds for constitutionality and ordered that the fund for individuals be extended to asylum-seekers and refugees. Thirdly, we consider the use of force and arrest under lockdown, which prompted an important systemic intervention in the Khosa matter. The fourth area that saw significant COVID-19 litigation was the right to education, including in relation to the re-opening of schools during lockdown, school nutrition and the re-opening of private Early Childhood Development centres. Relatedly, and fifthly, we consider the COVID-19 jurisprudence on children’s rights, in particular the movement of children between caregivers. Sixth, we discuss the cases relating to the right to fair labour practices, including two decisions concerning the safety of working conditions. Seventh, we touch on the contentious issue of the ban on the sale of tobacco products during lockdown. The eighth issue was evictions, which were restricted during lockdown but nevertheless generated litigation. The final issue that we discuss is religious gatherings, which raises the issue of freedom of religion. Quite apart from the constitutional matters arising from COVID-19, the year saw significant developments in constitutional law on a number of fronts. We cover these developments under two broad categories: (i) structures of government (spanning all three branches of government, all three levels of government and all the independent constitutional institutions) and (ii) human rights. At the interface between the legislature and the executive, the year saw an unusually high number of Bills being passed by parliament but sent back by the president on the basis of constitutional reservations. The president sent back four Bills.3 Undoubtedly the most significant development affecting the legislature and indeed government as a whole was the decision requiring independent candidates to be allowed to run in national and provincial elections on the basis that a pure party electoral system (as we have had since 1994) is unconstitutional. Regarding the executive branch, further 3 Performers’ Protection Amendment Bill (2016); Copyright Amendment Bill (2017); Protection of State Information Bill (2010); Liquor Products Amendment Bill (2016). Yearbook_of_South_African_Law_05.indd 159 2020/12/30 12:03 160 YEARBOOK OF SOUTH AFRICAN LAW activity was seen in relation to presidential pardons, the reviewability of cabinet appointments, and the reviewability of commissions of inquiry (in particular, the Arms Deal Commission). Regarding the judicial branch, we note a decision reviewing the refusal to consider a candidate for appointment as a magistrate because of his race. In respect of local government, the year saw two cases concerning the power to dissolve municipalities. The Public Protector was once again at the centre of several significant constitutional cases. In relation to Bill of Rights jurisprudence, there were also major developments. In respect of the application of the Bill of Rights, a pair of twin (but arguably contradictory) decisions handed down on the same day and written by the same judge engage the horizontal application of the Bill of Rights, while another case dealt with extraterritorial application. The year also saw significant jurisprudence across most of the rights in the Bill of Rights. In respect of equality, decisions implicating the commonpurpose doctrine in respect of rape, discrimination in the distribution of state resources and discrimination on the basis of poverty were handed down. The right to dignity was at the centre of a case concerning the right of asylum-seekers and refugees to marry in South Africa. The defence of reasonable chastisement by parents inflicting corporal punishment on their children was struck down on the basis of the right to freedom and security of the person. The right to privacy formed the basis of a challenge to surveillance legislation. It was a busy year for freedom of expression jurisprudence. The courts considered: the constitutionality of the crime of intimidation; whether the Equality Act’s definition of hate speech is constitutional; whether the old South African flag constitutes hate speech; whether speech directed at an individual because of his membership of a group can constitute hate speech; and the extent to which courts – and the Electoral Commission – can interfere with speech before and during elections. Political rights formed the basis of the decision mentioned above holding that a party-based electoral system is unconstitutional and independent candidates must be allowed. Two important cases were decided regarding constitutional labour rights, concerning the exclusion of minority unions from retrenchment negotiations and whether unions can recruit outside the industrial scope covered by their constitutions. An important decision on the environmental right confirmed that the right includes animal welfare. In respect of property, the jurisprudence engaged whether the definition of property includes the proceeds of crime. An important children’s rights case was handed down concerning the anonymity of child victims and whether it extends after they turn 18 years of age. There were also a number of important decisions on the right to education, covering issues Yearbook_of_South_African_Law_05.indd 160 2020/12/30 12:03 CONSTITUTIONAL LAW 161 that included: the latest challenge to a university language policy reducing the use of Afrikaans; the relationship between contract and the right to a basic education in private schools; the application of the right to education to private tertiary institutions; whether it is permissible to attach the assets of public schools; and the exclusion of undocumented learners from public schools. On access to information, we reviewed three cases, two of which concerned access to information in the context of contemplated or already instituted litigation, while the third was about the duty to give notice to a third party of a request for information relating to them. There was also a trio of cases on access to courts concerning: the practice of litigating in the High Court in matters that could be brought in the magistrates’ courts; a time bar in competition proceedings; and whether the Constitution permits an agreement that, if a party defaults, a matter may be enrolled unopposed (even if there is in fact opposition). On the subject of constitutional remedies, a further three decisions dealt with whether it is constitutionally permissible to appoint a special master as well as decisions on constitutional damages, whether courts may grant compensation in kind in delictual claims and a decision departing, on the facts, from the Biowatch principle governing costs in constitutional litigation. We begin, though, with the COVID-19 regulations and case law, before turning to the general constitutional-law jurisprudence of the past year. 2 REGULATION OF THE COVID-19 PANDEMIC 2.1 COVID-19 REGULATIONS 4 The year under review saw the outbreak of the global COVID-19 pandemic. The pandemic affected all dimensions of life, including the law. Government responded with a host of legal measures, including the declaration of a state of disaster and a spate of regulations. We discuss the laws made in response to the pandemic and how they relate to the Constitution in this section. The Constitution creates the legal universe in which government and society exist, giving legal meaning to all acts and actors in that universe. It is intended to be comprehensive and robust enough to respond to whatever may arise beyond the moment of its creation. It caters for many extreme contingencies, including war, invasion, natural disasters and other catastrophes. Of course, the Constitution did not specifically envisage COVID-19, but it frames, constrains and enables the response to it. 4 This discussion draws on J Brickhill ‘The Constitutional Implications of Covid-19’ Juta Covid-19 Talking Points 22 April 2020 and J Brickhill ‘The Constitutional Implications of Covid-19’ The Corporate Report 10 (2020) 33. Yearbook_of_South_African_Law_05.indd 161 2020/12/30 12:03 162 YEARBOOK OF SOUTH AFRICAN LAW Like other modern constitutions, our supreme law serves two main purposes: it guarantees certain human rights and it structures, empowers and limits the state. In this new coronavirus reality, large sections of government have suspended operations, and many of our rights and freedoms have been severely curtailed. If the Constitution has not been cryogenically frozen, how does it apply now? Contrary to a common misconception, a ‘state of emergency’ as provided for in s 37 was not declared by parliament. Reportedly, 5 the government seriously considered doing so, but decided not to declare a state of emergency, at least at this stage. Instead, on 15 March 2020, the Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana DlaminiZuma, declared a national state of disaster under s 27(1) of the Disaster Management Act 57 of 2002. The constitutional difference between a state of emergency and a national state of disaster is profound. At its core, the difference is between a world of ‘derogations’ under s 37 of the Constitution or a world of ‘limitations’ under s 36. During a state of emergency, legislation may derogate from (that is, suspend) rights in the Bill of Rights temporarily. This requires parliament to pass legislation that expressly declares that it is suspending certain rights for a certain period of time. This is not a constitutional blank cheque. Parliament may derogate from rights only subject to certain conditions, including that: the derogation is strictly required by the emergency; it is consistent with South Africa’s international law obligations; the derogation is published in the Government Gazette; and that it does not purport to derogate from certain non-derogable rights identified in the Constitution. However, South Africa has not (yet) declared a state of emergency and so no derogations are permitted. As both Ngcukaitobi6 and De Vos7 have observed, our state of emergency regime is better suited to security-related emergencies than public health ones, as it may be imposed only to ‘restore peace and order’. Also, a state of emergency may be declared and extended only by parliament, which is impractical where parliament is suspended. These features of s 37, and the awful history of the abuse of states of emergency by the apartheid state, may have informed the government’s decision not to declare one. 5 Marianne Merten ‘Covid-19 State of Disaster vs State of Emergency: What’s the difference? Daily Maverick 19 March 2020, available online at https://www.dailymaverick. co.za/article/2020-03-19-covid-19-state-of-disaster-vs-state-of-emergency-whats-thedifference/#gsc.tab=0. 6 Tembeka Ngcukaitobi ‘The rule of law in times of crisis: Covid-19 and the state of disaster’ Mail & Guardian 29 March 2020, available online at https://mg.co.za/coronavirusessentials/2020-03-29-the-rule-of-law-in-times-of-crisis-covid-19-and-the-state-of-disaster/. 7 Pierre de Vos ‘Steps to curb coronavirus spread: More legal questions answered’ Constitutionally Speaking 22 March 2020, available online at https://constitutionallyspeaking. co.za/steps-to-curb-coronavirus-spread-more-legal-questions-answered/. Yearbook_of_South_African_Law_05.indd 162 2020/12/30 12:03 CONSTITUTIONAL LAW 163 Outside of a state of emergency, none of the provisions of the Constitution are suspended. They continue to apply fully and to impose obligations on the state and other actors. While the state may not derogate from – or suspend – constitutional rights, it may still limit them if such limitation is justifiable under the proportionality test of s 36. The government is sharply aware that it is acting to limit rights. In fact, Justice Minister Ronald Lamola read out s 36 in full at an early press conference before the start of lockdown.8 Having declared a national state of disaster, the government introduced a still-growing raft of regulations with sweeping effects on constitutional rights. The regulations did two main things – first, they imposed restrictions on various activities for the purpose of slowing the spread of COVID-19 and mitigating its indirect effects, and, secondly, they granted exemptions to various sectors and actors from the manner in which they are normally regulated. The most significant ‘restriction’ regulations were the ‘Lockdown Regulations’ themselves,9 but there were several others, such as restrictions on air travel, price increases and excessive pricing promulgated by the relevant ministers.10 ‘Exemption’ regulations were promulgated in relation to banking, public finance management, retail property and the healthcare sector itself. These are intended to prevent widespread regulatory breaches. They are also intended to enable ‘essential services’ to operationalise the national COVID-19 response, for example allowing banks to grant credit and payment holidays in ways that would normally be unlawful. Importantly, the Lockdown Regulations were amended to designate services rendered by the government (all branches and spheres) as ‘essential services’, although in practice government departments have suspended non-essential functions. The regulations are far-reaching and resemble those associated with a state of emergency. They prohibit or mandate specific conduct and impose criminal liability for certain breaches, therefore substantially limiting constitutional rights. Section 36 permits this only if it is effected by a law of general application and is reasonable and justifiable. The requirement of a law of general application serves the rule of law: it ensures that government officials may not impose new restrictions on rights simply by adopting a policy or instituting a new practice not authorised in law. Here, limitations are in the form of regulations made by several ministers, without the 8 Franny Rabkin ‘Constitutional rights during disaster’ Mail & Guardian 19 March 2020, available online at https://mg.co.za/article/2020-03-19-constitutional-rights-during-disaster/. 9 Disaster Management Act: Regulations to address, prevent and combat the spread of Coronavirus COVID-19, available online at https://www.gov.za/documents/disastermanagement-act-regulations-address-prevent-and-combat-spread-coronavirus-covid-19. 10 The Regulations and Guidelines, including amendments, can be found online at https://www.gov.za/coronavirus/guidelines?gclid=Cj0KCQjw0rr4BRCtARIsAB0_48Npk DlMkJkRY9THNQGKBIA6JqRQ6NxAndQumucYeCk7zBwr_rIkXacaAoepEALw_wcB. Yearbook_of_South_African_Law_05.indd 163 2020/12/30 12:03 164 YEARBOOK OF SOUTH AFRICAN LAW involvement or oversight of parliament that would normally take place. Regulations (and other forms of delegated legislation) constitute laws of general application and may limit rights, subject to s 36.11 The limitations enquiry is not a one-size-fits-all approach where the ubiquitous threat of COVID-19 automatically justifies the web of new regulations. The various regulations limit specific constitutional rights in different ways. Every strand in the web must satisfy s 36. Moreover, the onus lies on the state to justify a limitation under s 36 and, if the justification depends on facts, to put up the necessary evidence.12 The situation is not static and whether specific limitations are justifiable may change as the COVID-19 threat grows or recedes, and as the impact of lockdown changes with time. Ensuring the continued possibility of access to courts under s 34 of the Constitution (including legal challenges to COVID-19 measures), Chief Justice Mogoeng announced that the courts must remain partly operational and then delegated the power to heads of court to make customised directives. The Minister of Justice issued detailed directions13 on 31 March 2020 to this effect and the Chief Justice and heads of court have issued a series of directions to govern court proceedings.14 The Lockdown Regulations were also amended to provide for a ‘COVID-19 Designated Judge’, responsible for overseeing the surveillance and data-gathering efforts in connection with COVID-19. Former Constitutional Court Justice O’Regan has been appointed to this role.15 While the COVID-19 Designated Judge has a specific role to play in safeguarding the right to privacy, the regulations limit a wider range of rights, including freedom of movement, freedom of trade and occupation, property rights, education and others. Other potential challenges will lie in the ordinary justice system. In the early stages immediately following the declaration of a state of disaster, a challenge was brought to the lockdown itself by the Hola Bon Renaissance Foundation as an application for direct access to the Constitutional Court, which was dismissed without reasons on 30 March 2020.16 A range of subsequent challenges to specific regulations 11 Larbi-Odam v MEC for Education (North-West Province) 1998 (1) SA 745 (CC) para 27. Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) 2005 (3) SA 280 (CC) para 36. 13 Directions issued in terms of reg 10 of the regulations under the Disaster Management Act, 31 March 2020, available online at https://www.gov.za/sites/default/files/gcis_ document/202004/43191rg11076-gon440.pdf. 14 The various directions issued by heads of courts have been collated by SAFLII and are available online at http://www.saflii.org/za/other/ZARC/2020/. 15 Announcement available on SABC website at https://www.sabcnews.com/sabcnews/ lamola-appoints-justice-catherine-oregan-as-covid-19-designate-judge/. 16 Hola Bon Renaissance Foundation v President of the Republic of South Africa, CCT 52/20, order dated 30 March 2020 (unreported). 12 Yearbook_of_South_African_Law_05.indd 164 2020/12/30 12:03 CONSTITUTIONAL LAW 165 and to the Lockdown Regulations as a whole have followed in subsequent months. In addition to judicial scrutiny, executive action would ordinarily be subject to parliamentary oversight. However, parliament suspended activities in mid-March, with the National Assembly sitting on 18 March to consider the Division of Revenue Bill and the National Council of Provinces sitting for the last time on 19 March. However, the Speaker and party Chief Whips have been working to re-establish parliamentary oversight of the executive-driven response to COVID-19. On 14 April, the Chief Whips Forum announced that Speaker Thandi Modise had identified specific parliamentary committees whose portfolios are directly affected and framed a new rule to enable them to hold virtual meetings, prioritising government departments driving the COVID-19 response.17 These include the committees on defence, social development and social services, and cooperative governance and traditional affairs. The Speaker and the Chief Whips explored similar possibilities for the National Assembly to enable further accountability of the executive response. On 17 April 2020, parliament’s presiding officers announced the resumption of parliamentary business.18 The Chief Whips have agreed to draft guidelines and rules on the functioning of committees. On the legislative process, the presiding officers have framed new rules on the sitting of the two Houses of Parliament. In addition, they are also exploring how questions and oral replies with the Leader of Government Business may work in this new format, and have highlighted the budget as a key area that may require revision in parliament. The Constitutional Court has previously considered some of the questions relating to the powers of the government to make laws and implement emergency plans in crisis situations. In one of its earliest decisions in 1995, Executive Council, Western Cape Legislature, upholding a challenge to legislation purporting to delegate substantial law-making powers to President Mandela, the court contemplated that situations might arise that require departures from the ways in which laws are ordinarily to be made: It is possible that circumstances short of war or states of emergency will exist from which a necessary implication can arise that Parliament may authorise urgent action to be taken out of necessity. A national disaster such as a result of floods or other forces of nature may call for urgent action to be taken inconsistent with existing laws 17 Chief Whips’ Forum announcement available online at https://www.parliament.gov.za/ press-releases/statement-parliamentary-chief-whips-forum. 18 Parliamentary announcement available online at https://www.parliament.gov.za/ news/presiding-officers-parliament-announce-resumption-business-parliament. Yearbook_of_South_African_Law_05.indd 165 2020/12/30 12:03 166 YEARBOOK OF SOUTH AFRICAN LAW such as environmental laws. And there may well be other situations of urgency in which this type of action will be necessary.19 In its later decision in 2001 in Kyalami Ridge Association, the Constitutional Court had to consider whether the government had acted lawfully in setting up an emergency transit camp on the Leeuwkop prison farm to accommodate flood victims in Alexandra township.20 The court held that the government had a constitutional duty to provide relief to people in crisis because of natural disasters.21 The court held further that the government had an obligation to consult the nearby residents, who might be affected by its emergency action.22 Read together, these decisions confirm that the Constitution confers reasonably broad powers on the executive to make laws and implement emergency plans in the face of a crisis such as COVID-19. But there are still significant limits, including (1) the general obligation to consult those affected by the measures and (2) the undesirability of leaving the executive to craft and implement the response unchecked by parliament indefinitely. The restarting of parliamentary activity from mid-April is to be welcomed. The shift towards executive regulation-making as the primary law-making mechanism may have been necessary in the immediate wake of the crisis, but it threatened to over-reach. There are some matters, such as the national budget, that may certainly not be dealt with through regulations alone. The resumption of parliamentary committees will also provide crucial oversight over the executive’s various measures. However, parliament’s resumption also brings with it serious challenges. The Constitution places great emphasis on public participation in lawmaking. The Constitutional Court in Doctors for Life established that legislation may even be struck down if public participation is rushed or inadequate.23 The presiding officers, in the light of this, promised that parliament will share details of opportunities for public participation in parliamentary affairs in these strange times. Let’s be realistic: public participation during conditions of lockdown will obviously be extremely challenging. Ordinarily, it involves several opportunities for participation through public hearings and written submissions. In practice, communities and sectors organise before engaging with parliament. There is real cause for concern that the public will struggle 19 Executive Council, Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA 877 (CC) para 62. 20 Minister of Public Works v Kyalami Ridge Environmental Association 2001 (3) SA 1151 (CC) (‘Kyalami Ridge’). 21 Kyalami Ridge (note 22) paras 38–40 and 52. 22 Kyalami Ridge (note 22) paras 100–106. 23 Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC). Yearbook_of_South_African_Law_05.indd 166 2020/12/30 12:03 CONSTITUTIONAL LAW 167 to engage in the law-making process at present due to the fragmentation of society caused by the lockdown and, importantly, owing to a lack of access. That may well be the price of parliamentary activity on COVID-19-related matters, but it should provide pause before parliament moves to pass other important legislation. For example, public participation on the constitutional amendment to s 25 of the Constitution and the National Health Insurance Bill was drawing to a close shortly before COVID-19 struck. Regarding major legislation of this sort, parliament will need to make a careful assessment to ensure that adequate opportunities for public participation were provided before it is passed. As with so much else, this is uncharted territory for our legislatures. The unprecedented challenge for all three branches of government is to sustain governance while minimising the limitation of rights resulting from COVID-19 itself and the state response to it. The Constitution structures and constrains this response, and parliamentary oversight and judicial scrutiny will provide crucial checks on the executive-driven response. On 15 March 2020, the Minister of Co-operative Governance and Traditional Affairs declared COVID-19 pandemic a national disaster under s 27 of the Disaster Management Act.24 Following the declaration, the minister made regulations under s 27(2) of the Act.25 The first Disaster Regulations were published on 18 March 2020.26 These regulations were amended with effect from midnight on 26 March 2020 to introduce a ‘hard lockdown’, which was initially scheduled to last for 21 days27 but was later extended to five weeks.28 The initial regulations introduced sweeping restrictions on freedom of movement and commerce and confined the majority of South Africans to their homes. On 29 April 2020, the regulations were amended to reflect the new ‘Risk Adjusted Strategy’, in order to create different levels of lockdown. With effect from 1 May 2020, South Africa was placed under Level 4 lockdown.29 On 28 May 2020, the minister published a notice indicating that the country would move to Level 3 from 1 June 2020.30 Further amendments to the regulations were also introduced. Under Level 3, all businesses were permitted to re-open, unless excluded.31 This marked a shift from Levels 4 and 5, in which all business activity was prohibited unless expressly 24 GN 313, GG 43096 (15 March 2020) In terms of s 3 of the Act, the minister was designated by the president as the cabinet member responsible for administering the Act. 26 GN 318, GG 43107 (18 March 2020). 27 GN 398, GG 43148 (25 March 2020). 28 GN 658, GG 43232 (16 April 2020). 29 GN 480, GG 43258 (29 April 2020). 30 GN 608, GG 43364 (28 May 2020). 31 Table 2 to the Disaster Regulations. 25 Yearbook_of_South_African_Law_05.indd 167 2020/12/30 12:03 168 YEARBOOK OF SOUTH AFRICAN LAW permitted. The regulations published under Level 3 allowed greater freedom of movement, including relaxing restrictions on interprovincial travel. On 17 June 2020, the president announced the further easing of lockdown restrictions under a proposed ‘Advanced Level 3’. On 25 June 2020, the minister published further amendments to the Disaster Regulations.32 On 12 July 2020, the revised Level 3 Disaster Regulations were published.33 These amendments reintroduced a curfew and the ban on the sale of alcohol, while easing restrictions on some businesses and industries.34 2.2 COVID-19 CASES 2.2.1 General challenges to Lockdown Regulations There have been three wholesale attacks on the Lockdown Regulations resulting in judgments – in De Beer, Esau and Freedom Front Plus. De Beer succeeded in large part, but is currently under appeal. Esau and Freedom Front Plus were dismissed. In addition, there have been applications for direct access to the Constitutional Court seeking to challenge the Lockdown Regulations or the declaration of the state of disaster, which have been dismissed without a judgment. These included an application by Hola Bon Renaissance (HBR), which the court dismissed on 30 March 2020 on the basis that it had no reasonable prospects of success.35 As we describe below, HBR was later admitted as amicus curiae in De Beer. Here we discuss the three judgments in De Beer, Esau and Freedom Front Plus. De Beer v Minister of Co-operative Governance and Traditional Affairs On 2 June 2020, the North Gauteng High Court struck down the ‘Lockdown Regulations’ in De Beer v Minister of Co-operative Governance and Traditional Affairs. 36 The application was brought by Reyno de Beer, an attorney and a voluntary association known as Liberty Fighters Network (LFN). The applicants challenged the declaration of a state of disaster and the regulations as a whole; they sought to allow all gatherings, subject to conditions. In the alternative, the applicants sought an order allowing all businesses to operate subject to safety conditions. In response, the Minister of Co-operative Governance 32 GN 714, GG 43476 (25 June 2020). GN 763, GG 43521 (12 July 2020). 34 See reg 43. 35 Court order available online at http://www.saflii.org/images/HBR-Foundation-Courtruling.pdf. 36 De Beer v Minister of Co-operative Governance and Traditional Affairs (unreported, referred to as [2020] ZAGPPHC 184, 2 June 2020; available online at http://www.saflii.org/za/cases/ ZAGPPHC/2020/184.html). 33 Yearbook_of_South_African_Law_05.indd 168 2020/12/30 12:03 CONSTITUTIONAL LAW 169 appears to have mounted a defence to the scheme of the regulations as a whole.37 The High Court rejected the challenge to the declaration of a state of disaster but upheld the challenge to the Level 3 and 4 Lockdown Regulations, striking down most of the regulations but suspending its order to give the minister an opportunity to amend them. The central flaws in the judgment are that: (1) the court fails to test each regulation individually, (2) it applies a proportionality approach rather than rationality, and (3) it muddles rationality review and limitations analysis. A ‘holus bolus’, shotgun approach to the challenge The first problem with the judgment is a simple one. The applicants challenged all the Level 3 and 4 Lockdown Regulations, and the court considered the challenge as a whole. It ought to have considered the rationality of each regulation – that is, whether each regulation is rationally related to the objective for it. The objective of the regulations as a whole is to prevent the spread of COVID-19 so as to ‘flatten the curve’ and save lives, as the director-general’s (DG) affidavit explained. However, individual regulations may have more specific purposes, and there may be other objectives underpinning individual regulations. A careful, individualised approach is constitutionally required, as the Constitutional Court has often reiterated. In Shaik v Minister of Justice and Constitutional Development, 38 the court emphasised that ‘[i]t constitutes sound discipline in constitutional litigation to require accuracy in the identification of the statutory provisions that are attacked on the ground of their constitutional invalidity’, explaining that such accuracy is ‘especially important in those cases where a party may wish to justify a limitation of a chap 2 right an adduce evidence in support thereof’.39 Towards the end of the De Beer judgment, having found that ‘most’ of the regulations are invalid, the court saves a few. However, it appears to do so because it realises the risk of invalidating the Lockdown Regulations entirely in the context of the COVID-19 risk, not as a result of a careful legal analysis of each regulation in relation to its objective. Getting rationality wrong The second major flaw in the judgment is that Davis J, having initially stated the rationality test correctly, got it wrong when applying the test. Calland has commented that Davis J’s approach looks more like reasonableness review 37 38 39 Para 3.1 2003 (4) SA 599 (CC). Para 25. Yearbook_of_South_African_Law_05.indd 169 2020/12/30 12:03 170 YEARBOOK OF SOUTH AFRICAN LAW than rationality.40 In my view, parts of the approach look like proportionality testing, the strictest review standard found in our public law. De Vos has argued that the DG also appears to have got the law on rationality wrong.41 Again, we do not have the full affidavit, but the DG summed up the test as follows in the answering affidavit: I am advised that in determining whether the decision of the functionary is rational, the test is objective and is whether the means justify the ends. Thus, I submit, with respect, that under the circumstances, the means justify the ends. As the court points out and as De Vos has discussed, the correct expression is normally ‘the end justifies the means’, and not the other way around. De Vos has pointed out that ‘the end justifies the means’ conveys that a good aim justifies bad methods. It is not clear from the judgment as a whole that the DG understood rationality in this way. Despite the inelegant summing up of the test, the DG seems to be identifying (correctly) that rationality is about the relationship between means and ends, that the test is objective and that the idea of ‘justification’ underpins the test. ‘Justifiability’ was introduced into rationality review by the Labour Appeal Court in the famous Carephone (Pty) Ltd v Marcus NO42 decision, where the court was interpreting the review standard applicable to CCMA awards. The LAC held that a CCMA award must be rationally connected to the material before the arbitrator, that it must therefore be ‘justifiable’ in terms of the reasons given for the award.43 Subsequent Labour Court decisions attempted to rein in this approach to rationality as justifiability, such as Shoprite Checkers (Pty) Ltd v Ramdaw,44 because it blurred the distinction between review and appeal. ‘Justifiability’ is also be linked to the famous concept of ‘a culture of justification’, which Mureinik argued underlies the Constitution as a whole, an idea that has influenced the development of public-law review.45 40 Richard Calland ‘Court throws South Africa’s lockdown exit strategy into disarray. But it got it wrong’ The Conversation 3 June 2020, available online at https://theconversation. com/court-throws-south-africas-lockdown-exit-strategy-into-disarray-but-it-got-it-wrong139991?utm_source=facebook&utm_medium=bylinefacebookbutton&fbclid=IwAR1U3ogeX0 kIRztdHrb7600EO20eI6swLkIuO83A359v0kID1M2T-1QDgxM. 41 Pierre de Vos ‘Judgment invalidating lockdown regulations is flawed, but so is the government’s “means justifies the end” defence’ Constitutionally Speaking 3 June 2020, available online at https://constitutionallyspeaking.co.za/judgment-invalidating-lockdownregulations-is-flawed-but-so-is-the-governments-means-justifies-the-end-defence/. 42 (1998) 19 ILJ 1425 (LAC). 43 Carephone (note 44) para 20. 44 Unreported, referred to as [2000] ZALC 27, 5 April 2000, available online at http://www. saflii.org/za/cases/ZALAC/2000/5.html. 45 Etienne Mureinik ‘A bridge to where? Introducing the Interim Bill of Rights’ (1994) 10 SAJHR 31–48. Yearbook_of_South_African_Law_05.indd 170 2020/12/30 12:03 CONSTITUTIONAL LAW 171 All of this is to say that the notion of ‘justifiability’ has been floating around rationality review in different contexts for some time. In summing up the test as ‘the means justify the ends’, which the DG’s counsel insisted the DG meant to say,46 the DG may well have intended to convey that the means serve the ends, and are therefore justifiable. A reading of the DG’s affidavit as a whole would confirm this. This would be, broadly speaking, a correct formulation of the test for rationality of regulations. In any event, the court itself correctly set out the test initially (paras 6.1– 6.4), but then applied an entirely different, and wrong, approach to testing the regulations. First, Davis J adopted an approach that involved comparing one regulation to another, pointing out that some are stricter than others (for example, not allowing family members at the bedside of hospitalised patients but allowing 50 people at a funeral). This is not testing for rationality, but for proportionality or reasonableness. The court also appeared here to be plucking ‘examples’ from throughout the regulations, and weighing them against each other to test the regulations as a whole for rationality. The court’s approach seems to be that if one regulation is stricter than another that deals with similar subject-matter, both regulations are irrational. However, each of the regulations imposes restrictions on movement and gathering that, on the face of them, clearly relate to the objective of slowing transmission of COVID-19. The fact that one regulation is stricter than another may raise other questions, but does not on its own lead to irrationality. Muddling rationality review and limitations analysis The final problem with the court’s approach is that, having set out the rationality test correctly in the body of the judgment, when it comes to apply the test to the impugned regulations, it begins to apply a hybrid rationalitylimitations analysis that leads it badly astray. This is most glaringly apparent from paras 9.3 and 9.4 of the judgment, when the court sets out its conclusions. It is worth quoting these paragraphs in full: 9.3 In every instance where ‘means’ are implemented by executive authority 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 Bill of Rights contained in the Constitution are not justifiable in an 46 De Beer (note 38) para 6.7. Yearbook_of_South_African_Law_05.indd 171 2020/12/30 12:03 172 YEARBOOK OF SOUTH AFRICAN LAW open and democratic society based on human dignity, equality and freedom as contemplated in Section 36 of the Constitution. In para 9.3, the court seems to blur the ‘means–ends’ rationality question into the question whether the limitation of any right is justifiable under s 36. In para 9.4, the court explicitly holds that if the regulations (as a whole) do not satisfy rationality, then they also fail under s 36. This approach is flawed. The question whether a regulation is irrational and whether it unjustifiably limits one or more rights in the Bill of Rights are distinct and involve different approaches. Vuyani Ngalwana, who otherwise is sympathetic to the decision in De Beer because of its emphasis on individual liberty over state ‘paternalism’, observes that the court failed to distinguish the rationality and limitations enquiries.47 Section 36 permits a limitation of rights only if it is effected by a law of general application and is reasonable and justifiable. The requirement of a law of general application serves the rule of law. It ensures that government officials may not impose new restrictions on rights simply by adopting a policy or instituting a new practice not authorised in law. Here, limitations are in the form of regulations. As Davis J points out in De Beer, regulations are made without the involvement or oversight of parliament that would take place for legislation. However, regulations (and other forms of delegated legislation) constitute laws of general application and may limit rights, subject to s 36.48 The limitations inquiry is not a one-size-fits-all approach where the ubiquitous threat of COVID-19 automatically justifies the web of new regulations. Ultimately, every strand in the web must satisfy s 36. However, it also importantly follows that it is not permissible for an applicant to challenge the regulations as a whole, invoking a range of constitutional rights in this generalised, shotgun approach adopted by the applicants in De Beer. The various regulations limit specific constitutional rights in very different ways. It is for the applicants to plead the constitutional challenge with sufficient precision to enable government to respond accordingly, as explained above. The applicants should also adduce evidence in support of the challenge. Ultimately, of course, the onus lies on the state to justify a limitation under s 36 and, if the justification depends on facts, to put up the necessary evidence.49 47 Vuyani Ngalwana Anhored in Law blog, 3 June 2020, available online at https://www. anchoredinlaw.net/2020/06/03/covid-19-regulations-declared-unconstitutional-wake-upcall-for-south-africans/. 48 Larbi-Odam v MEC for Education (North-West Province) 1998 (1) SA 745 (CC) para 27. 49 Minister of Home Affairs v NICRO 2005 (3) SA 280 (CC) para 36. Yearbook_of_South_African_Law_05.indd 172 2020/12/30 12:03 CONSTITUTIONAL LAW 173 However, the framework for the limitations analysis is set by how the challenge is pleaded by the applicants – which specific rights are relied upon to challenge which regulation; and ultimately, is the limitation of those rights proportionate in terms of s 36? The court in De Beer does not conduct this inquiry, instead subsuming the limitations analysis in the (flawed) rationality review that it has conducted. Conclusion De Beer got the rationality review of the regulations completely wrong and barely conducted a rights limitations analysis. It will, in all likelihood, be overturned on appeal. It is also likely that other actors will intervene in the appeal proceedings, which will be conducted away from the challenges of urgent High Court proceedings. Pending appeal proceedings, the De Beer judgment is suspended and the Lockdown Regulations remain fully in place. The striking down of regulations does not require confirmation by the Constitutional Court.50 However, Davis J suspended the order of invalidity for 14 days and, even after that time, the effect of the order will be suspended by an application for leave to appeal in the ordinary way, barring the unlikely granting of an interim execution order. The bottom line was that the Lockdown Regulations Level 3 and 4 remained in force and binding. The court subsequently decided an application for leave to appeal, granting leave to appeal to the SCA in part and refusing it in part.51 The court distinguished between the ‘wholesale’ declaration of invalidity and the specific declarations of invalidity52 and granted leave only in relation to the former. Esau v Minister of Co-operative Governance and Traditional Affairs The second challenge to the regulations as a whole was Esau v Minister of Co-operative Governance and Traditional Affairs.53 By this stage, the initial Lockdown Regulations had been replaced by the ‘Disaster Regulations’ promulgated on 29 April 2020.54 The applicants were individual citizens. They sought an order declaring unconstitutional the establishment of the ‘National Coronavirus Command 50 Mdodana v Premier of the Eastern Cape 2014 (4) SA 99 (CC) para 23. Minister of Cooperative Governance and Traditional Affairs v De Beer (unreported, referred to as [2020] ZAGPPHC 280; available online at http://www1.saflii.org/za/cases/ ZAGPPHC/2020/280.html). 52 In relation to regs 33(1)(e), 34, 35, 39(2)(m) and the exceptions to regs 46(1) and 48(2). 53 Esau v Minister of Co-operative Governance and Traditional Affairs (unreported, referred to as [2020] ZAWCHC 56, 26 June 2020; available online at http://www.saflii.org/za/cases/ ZAWCHC/2020/56.html). 54 Para 12. 51 Yearbook_of_South_African_Law_05.indd 173 2020/12/30 12:03 174 YEARBOOK OF SOUTH AFRICAN LAW Council’ (‘Command Council’), declaring all its decisions invalid, striking down the Lockdown Regulations in whole or alternatively in part, and striking down a separate set of regulations55 dealing with the sale of clothing, footwear and bedding.56 A two-judge bench (Allie J, Baartman J concurring) of the Western Cape High Court dismissed the application. The nub of the challenge to the role of the Command Council was that it is not an entity empowered by the Constitution or any law to take any decisions regarding the government’s coronavirus response, and that it was usurping the function of cabinet.57 The applicants further attacked the regulations on the basis that they were tainted by the NCC’s role in their conceptualisation.58 The respondents in turn argued that the NCC’s role was to make proposals which facilitated discussions and decisions by cabinet, the president or individual cabinet members, depending on who was required and empowered to act.59 The respondents emphasised that cabinet can arrange itself as it sees fit and that there is no constitutional prohibition on meeting as a cluster or council of cabinet members.60 The court ultimately agreed with the respondents, holding that the applicants’ approach would preclude the President from taking advice before making decisions.61 Regarding the cabinet, the court confirmed that ‘[i]t is necessary for Cabinet to have the power to assign functions to its own committees’ and that it has structured itself in clusters before the establishment of the NCC.62 The court accepted the respondents’ characterisation of the NCC as a committee of cabinet working exclusively on COVID-19 related issues.63 The court also accepted that, in line with the rule that cabinet discussions are confidential, the minutes of meetings of cabinet and the NCC may be treated as confidential in order to protect the integrity of those discussions.64 The court moved on to consider, and reject, the complaint that the NCC was usurping the statutory role of the ‘National Disaster Management Centre’ envisaged in the DMA. The court held that the DMA does not envisage the Disaster Management Centre as the authority vested with 55 Directions regarding the sale of clothing, footwear and bedding during Alert Level 4 of the Covid-19 national state of disaster, published by the third respondent under Notice R523, GG 43307 of 12 May 2020. 56 Para 1. 57 Paras 4–5. 58 Para 53. 59 Paras 57–61. 60 Para 63. 61 Para 70. 62 Para 72. 63 Para 85. 64 Paras 90–94. Yearbook_of_South_African_Law_05.indd 174 2020/12/30 12:03 CONSTITUTIONAL LAW 175 exclusive power to manage disasters.65 Indeed, s 26(2) of the DMA mandates the national executive, and not the centre, to respond to specific national disasters.66 The court went on to consider the review of the various sets of regulations relating to the different levels of the lockdown. It began by rejecting the respondents’ argument that the challenge was moot in relation to those regulations that were no longer in place, noting that it was possible that the same regulations would be revived if the country moved to the relevant alert level.67 However, the court dismissed the review on its merits. Regarding the complaint based on a lack of public participation in the process of the making of regulations by the Minister of Co-operative Governance and Traditional Affairs (CoGTA), the court found on the facts that the minister had facilitated public participation. The court accepted that it was truncated but held this to be justified by the exigencies of the situation.68 In addition, the court emphasised that the minister remained accountable to parliament.69 The applicants also advanced a substantive broadside attack on the regulations, relying on the principle of legality and a range of constitutional rights limited by the regulations. At the outset, the court rejected an approach that simply compares the regulations with one another, holding that this is not the test required by s 36 of the Constitution.70 In doing so, the court avoided the incorrect approach taken in De Beer, which we criticise above. To be clear, a comparison between regulations is not irrelevant to either the inquiry into rationality or the limitations test. However, the mere fact that – among a set of regulations imposing various restrictions on movement and activity – some impose stricter restrictions on particular activities does not, on its own, provide a basis to strike down the regulations. At this point, the court observed that the applicants’ case was based on taking up the cause for rights and freedoms of people who can afford to shop for all goods and services; to exercise far away from their homes; to have an occupation/profession; to travel through the country at the expense of people who don’t have access to good nutrition and healthcare and those with co-morbidities.71 In essence, the court viewed the application as prioritising the rights and interests of the wealthy over those of the vulnerable. In this regard, too, Esau is similar to De Beer. The court engaged in a detailed, individualised 65 66 67 68 69 70 71 Para 108. Para 109. Para 127. Para 151. Para 164. Paras 230–231. Para 234. Yearbook_of_South_African_Law_05.indd 175 2020/12/30 12:03 176 YEARBOOK OF SOUTH AFRICAN LAW analysis of the sub-regulations in reg 16 (the main set of movement restrictions), testing each one for rationality in relation to its purpose and for constitutionality based on its impact. This individualised analysis was missing in De Beer. It held that: • regulation 16(1), which confined people to their homes, was rationally related to its purpose of minimising conduct among people who do not live together;72 • regulation 16(2), which provides circumstances in which people may leave their homes, similarly promotes this purpose while providing appropriate exceptions to allow people to obtain money, food, medical assistance or to have contact with their children;73 • regulation 16(3), which imposes a curfew, is rationally related to its purpose of limiting movement of people to save lives;74 • regulation 16(4), which allowed limited inter-provincial movement only for purposes of performing an essential service, attending a funeral of a relative or transporting mortal remains, served the purpose of containing the spread of the virus from one province to another so that the health system in the area is not overwhelmed. This, the court held, did not negate the rationality of the overall ban on movement.75 The court noted that ‘the measures do not satisfy everyone and there is a great deal of criticism levelled against them’, but held that it was in the nature of the proportionality exercise which government has to embark upon to weigh the inconvenience and discontent caused by the regulations against the ‘urgent objective and primary Constitutional duty to save lives’.76 The court noted that this exercise ‘involved issues of high policy that have to be made in a polycentric manner’ and that it is not for courts to prescribe to government how it should exercise its mandate in those circumstances.77 In our view, while this general principle is correct – that the courts are required to show a level of deference to the policy choices made in this context – it should not be overstated. Courts certainly have the power (and duty) to strike down regulations that fail to pass constitutional muster. Here, however, we agree with the court’s conclusions. Finally, the court rejected the attack on reg 19, which imposed a moratorium on the execution of evictions. The court suggested that the attack on this regulation undermined the applicants’ claim to be litigating in the public interest in terms of s 38(d) of the Constitution. 72 73 74 75 76 77 Para 237. Para 238. Para 239. Para 244. Para 254. Para 255. Yearbook_of_South_African_Law_05.indd 176 2020/12/30 12:03 CONSTITUTIONAL LAW 177 The court accordingly dismissed the application, but ordered each party to pay its own costs in the light of the Biowatch principle. The High Court subsequently granted leave to appeal to the Supreme Court of Appeal (SCA). That appeal will be heard in November 2020. Freedom Front Plus A general constitutional challenge to the DMA itself, alternatively to the decision to declare a national state of disaster was brought in Freedom Front Plus v President of the Republic of South Africa.78 A Full Bench (Mlambo JP, Kollapen J and Keightley J) was constituted to decide the matter, dismissing the application. The essence of the attack on the DMA was that it is unconstitutional because it permits the executive to impose a state of disaster without the safeguards that apply to a state of emergency under s 37 of the Constitution.79 The matter was launched as an urgent application on truncated time periods. The state respondents were unable to prepare the record requested in terms of the review portion of the application within the truncated time allowed by the applicant. The applicant therefore proposed that the court consider the constitutional challenge to the DMA and that the review be postponed to be decided when the record was furnished. The court agreed to take this approach.80 The applicant challenged several provisions of the DMA, namely: s 26(8), which provides for the classification of a disaster as local, provincial or national and gives the relevant sphere of government primary responsibility to deal with it; s 26(2), which provides that the national executive must deal with a national disaster in terms of existing legislation and contingency arrangements as augmented by regulations or directions made or issued if a national disaster is declared; s 27(3), which gives the designated minister regulation-making power; and s 27(5), which deals with the period of a national disaster (three months, with the possibility of extensions for one month at a time). The applicant argued that the DMA permits drastic limitations on an array of rights without the safeguards built into the Constitution in respect of states of emergency.81 The applicant advanced four main arguments in this regard: first, a state of emergency may be extended only after debate in the National Assembly, whereas the minister may unilaterally extend a state of disaster; secondly, s 37 expressly provides for judicial review of 78 Freedom Front Plus v President of the Republic of South Africa (unreported, referred to as [2020] ZAGPPHC 266, 6 July 2020, available online at http://www.saflii.org/za/cases/ ZAGPPHC/2020/266.html). 79 Para 20. 80 Para 39. 81 Para 54. Yearbook_of_South_African_Law_05.indd 177 2020/12/30 12:03 178 YEARBOOK OF SOUTH AFRICAN LAW states of emergency but the DMA does not do so; thirdly, s 37 provides that derogations may be effected only to the extent strictly required and that any legislation passed under a state of emergency must be consistent with South Africa’s international obligations and it removes powers of indemnity, none of which the DMA does; finally, the DMA effectively makes the designated minister more powerful than the president would be under a state of emergency.82 The court ultimately held that the applicant’s point of departure was flawed. It failed to appreciate that a state of emergency applies in far more serious circumstances than a state of disaster, only when the life of the nation is threatened, and that a state of emergency authorises the suspension of the constitutional order and derogation from constitutional rights; none of this applies to a state of disaster.83 Regarding judicial review, the court held that courts may, of course, review the declaration of a state of disaster, any extension and the making of Disaster Regulations under their ordinary review powers.84 Regarding the lack of parliamentary oversight, the court held that it is not necessary for the DMA to provide for it because parliamentary oversight remains a normal part of our constitutional framework and continues to operate during a state of disaster.85 The court concluded that the constitutional challenge to the DMA was ‘founded on a misconception’ and fell to be dismissed.86 The court proceeded to dismiss a further constitutional challenge to the declaration of the state of disaster because it was premised on the same failure to appreciate the difference between a state of disaster and a state of emergency.87 However, the court postponed the remaining review relief sine die, to be decided when the record is lodged. 2.1.1 Social and economic relief grants Criteria for business grants – B-BBEEE and race Democratic Alliance v President of the Republic of South Africa (Economic Freedom Fighters Intervening) 88 concerned the criteria that the state could permissibly use to determine who received financial support during COVID-19. In particular, could the state lawfully use B-BBEE status, race, gender or disability as criteria? 82 Para 55. Para 65. 84 Para 66. 85 Paras 68–69. 86 Para 70. 87 Para 74. 88 Democratic Alliance v President of the Republic of South Africa (Economic Freedom Fighters Intervening) [2020] 3 All SA 747 (GP). M Bishop appeared as counsel for the applicant, and the views on the case reflect J Brickhill’s views alone. 83 Yearbook_of_South_African_Law_05.indd 178 2020/12/30 12:03 CONSTITUTIONAL LAW 179 The Minister of Small Business Development (the minister) established two funds to provide financial relief to small, medium and micro enterprises: the Debt Finance Scheme (DFS) and the Business Growth Resilience Fund (BGRF).89 It was not entirely clear when the proceedings were launched which criteria would be used for the funds and, in particular, whether race or B-BBEE status would be used. A letter from the applicant to the minister seeking clarity before the launch received no answer.90 The answering affidavit indicated that gender, age and disability would be used, but not race or B-BBEE status, although the minister provided no undertaking that these criteria would not be applied in future.91 The applicant, the Democratic Alliance (DA), challenged the criteria applicable to the two funds, arguing that B-BBEE status or criteria such as race, gender and disability cannot be used as a basis for a decision about the recipients of distributions from these two funds.92 The applicant sought an order interdicting the minister and the DG from using B-BBEE status, race, gender, ability or disability as criteria for determining which persons or entities will receive funds and reviewing and setting aside the decision(s) by them to use those criteria.93 The Economic Freedom Fighters (EFF) sought to intervene in the application, effectively seeking the direct opposite of the relief sought by the DA. The EFF sought an order declaring the decision of the minister and the DG to use B-BBEE status, race, gender, age and disability as qualifying criteria lawful, and sought an order directing the minister and DG to publish within 30 days a guide on how the various factors affecting B-BBEE status will be weighted/assessed in the distribution of money from the funds.94 Ultimately, the lack of clarity regarding which criteria applied was the decisive factor. The court held that the criteria fell to be struck down for vagueness: It is for the Minister to make sure that the criteria to be employed for the disbursement of public funds are not left to a simple laundry list of hygiene and procedural characteristics buttressed by one vague statement that “priority would be given” to women, the youth and the disabled. Such a broad phrase without any guidance as to what weight is to be given to these criteria simply cannot pass muster in our constitutional democracy. The ostensible criteria fall foul of basic principles of the rule of law that such the requirement that the exercise 89 90 91 92 93 94 Para 2. Para 7. Paras 9–10. Para 5. Para 12. Para 13. Yearbook_of_South_African_Law_05.indd 179 2020/12/30 12:03 180 YEARBOOK OF SOUTH AFRICAN LAW of a public power must be certain, even, if as obviously is the case in these circumstances, discretion to allocate funds is permissible.95 The DA wanted the court to stop there, but the court held it needed to consider the question whether it would be lawful for the state to use the impugned criteria, provided that they were formulated with the requisite clarity. The court began by setting out the interpretive context: Competing visions of the meaning of the animating normative framework of the Bill of Rights may create a level of uncertainty but what is not uncertain is that this Constitution read as a whole cannot be construed as a libertarian constitution as some would have it or as a race neutral constitution eliding over an egregious history in which race overlaid by class and gender was the central determinants of the distribution of resources in our society for more than 300 years of its existence.96 The court emphasised that the provision for restitutionary measures in s 9(2) and the socio-economic rights entrenched in the Constitution illustrate the constitutional commitment to ‘historical redress and the priority that must be given to those in need’.97 The court held that the DMA focuses on the socio-economic status of individual and communities affected by COVID-19 and that this includes race, as race overlaps with socio-economic status in South Africa.98 Accordingly, the court concluded that [o]ne of the effects of the disaster is felt by businesses and if those with less resources are assisted as a measure of priority provided that the criteria are carefully and understandably set out, then such steps are clearly what the Constitution would expect to be undertaken by the executive.99 The court accordingly set aside the criteria that the minister and the DG had been employing under the two funds, but declared that this would not affect funds already distributed, and held that in the reformulation of criteria, ‘the Minister must take into account race, gender, youth and disability’ (emphasis added).100 95 96 97 98 99 100 Para 31. Para 47. Para 49. Ibid. Para 50. Para 55. Yearbook_of_South_African_Law_05.indd 180 2020/12/30 12:03 CONSTITUTIONAL LAW 181 Extension of relief of distress grants to asylum-seekers and refugees The second COVID-19 case concerning criteria for distribution of relief concerned the exclusion of asylum seekers from the social relief of distress grant. The High Court upheld a challenge to this exclusion in Scalabrini Centre of Cape Town v The Minister of Social Development.101 Baqwa J made an order declaring clause 6(viii)(cc)(i) of the directions issued by the Minister of Social Development in terms of reg 10(8) read with s 27(2) of the DMA unlawful, unconstitutional and invalid to the extent that it excludes special permit holders and asylum seekers whose permits are valid, or were valid on 15 March 2020, from eligibility for the COVID-19 Social Relief of Distress Grant.102 The court made an order reading into the relevant directions words to include special permit-holders under the dispensations applicable to Zimbabwe, Angola and Lesotho and asylumseekers.103 The court further ordered the Minister of Social Development, in consultation with and with the assistance of relevant departments, to ‘attend to the quantification of the costs to be incurred in providing the COVID-19 Social Relief of Distress Grants to special permit-olders and asylum-seekers’.104 The court ordered the minister, within five days of this quantification, to amend the directions.105 The court declared that any special permit holder or asylum-seeker who qualified for the grant would be entitled to payment as if their grants had been approved from the date of the order (18 June 2020).106 The court finally granted an unusual order authorising the applicants to file two versions of the supporting affidavits deposed to by special permit holders and asylum-seekers, anonymised versions without names and identifying information that will be kept in the court file and another version to be made available only to the judge and legal representatives.107 2.1.2 Use of force108 Khosa v Minister of Defence and Military Veterans109 was prompted by the death of Mr Collins Khosa, who was allegedly killed by members of the security forces at his home on 10 April 2020. However, the applicants framed 101 Unreported decision of the North Gauteng High Court, 18 June 2020, copy on file with the authors. 102 Para 2. 103 Para 3. 104 Para 4. 105 Para 5. 106 Para 6. 107 Para 7. 108 The review of this case draws on Jason Brickhill ‘Constitutional implications of COVID-19: Arrests and the use of force to enforce lockdown’ Juta’s Talking Points Issue 11, 25 May 2020. 109 Khosa v Minister of Defence and Military Veterans BCLR 816 (GP); [2020] 3 All SA 190 (GP). Yearbook_of_South_African_Law_05.indd 181 2020/12/30 12:03 182 YEARBOOK OF SOUTH AFRICAN LAW the case as being about ‘lockdown brutality’ generally, and sought relief that extended beyond the case of Mr Khosa. The Constitutional Court had dismissed an application for direct access in Khosa. Three weeks later, the Pretoria High Court upheld the application on an urgent basis. In a sweeping judgment, Fabricius J granted almost all the relief sought by the applicants. The matter has laid bare the abuse of arrest powers and the use of force by the police and the military to enforce the lockdown and ordered the imposition of vital accountability mechanisms, reasserting Bill of Rights guarantees. The first premise of the Khosa judgment is that the lockdown was necessary. This was accepted by Fabricius J and all the parties.110 However, the applicants contended that there had been widespread instances of lockdown brutality at the hands of police and soldiers enforcing the lockdown. Much of the judgment and order restated the existing law on arrest, the use of force and Bill of Rights guarantees. The court explicitly considered this necessary given the conduct of the police and military. In addition to the reports of lockdown brutality, the court highlighted a series of inflammatory public statements by senior police and military officials and politicians that tended to justify the use of force and blame civilians for ‘provoking’ the security services.111 The court also noted that the Chief of Staff of the SANDF had resisted attempts by the parliamentary standing committee on defence to hold the SANDF accountable.112 Moreover, the court observed that the SANDF operational directives used militaristic language – words such as ‘combat Coronavirus’, ‘battle’, ‘defeated’ and ‘neutralised’ – and warned the SANDF that the residents of Alexandra ‘don’t care about the measures in place’.113 In addition to restating the law, the court granted the relief sought by the applicants (as amended at the hearing), including: • a declarator that, notwithstanding ‘states of emergency’, all people in the country are entitled to certain ‘non-derogable’ rights in the Bill of Rights (an inappropriately framed declarator, since South Africa has declared a state of disaster, not emergency, and derogability is irrelevant); • directing the South African Police Service (SAPS), the South African National Defence Force (SANDF) and any municipal police department to act, and instruct their members to act lawfully; 110 111 112 113 Para 19. Paras 36–46. Para 47. Para 88. Yearbook_of_South_African_Law_05.indd 182 2020/12/30 12:03 CONSTITUTIONAL LAW 183 • directing the police and military respondents to suspend all their members who had been present when Mr Khosa was killed and investigate the incident; • directing the respondents to develop and publish a code of conduct and operational procedures for the Lockdown; and • directed the respondents to establish a mechanism for citizens to report complaints of police or military conduct.114 The court’s order provides firm guidance on the limits of lawful use of force and requires the military and police to take steps to prevent any further abuses and hold perpetrators accountable. The Khosa judgment focuses on the current crisis, in which the military are deployed to perform nonmilitary functions. The court makes crucial interventions that will set standards and provide an accountability mechanism during the lockdown, for both the military and the police. In what follows, however, we discuss issues that the judgment highlights relating to arrest and the use of force that have long-term implications, once the SANDF has returned to barracks and policing is restored to the police. Abuse of arrest powers The judgment touches only briefly on arrest, given that the facts in Khosa related more to the use of force. However, the question whether the use of force in affecting an arrest is lawful only arises if the decision to arrest was itself lawful. There have been reports of widespread arrests for breach of the Lockdown Regulations. The original Lockdown Regulations and the ‘Level 4’ Lockdown Regulations provide that any person who contravenes the regulations relating to movement, gatherings and the cessation of business operations is ‘guilty of an offence and, on conviction, liable to a fine or to imprisonment for a period not exceeding six months or to both such fine and imprisonment’. This is a minor offence. The Level 4 Lockdown Regulations also provide specifically that, where a gathering takes place, an enforcement officer must order the persons to disperse and, ‘if the persons fail to disperse, take appropriate action, which may, subject to the Criminal Procedure Act (CPA), include arrest and detention.’ Arrest for gathering is therefore potentially lawful only if an instruction to disperse is refused, and even then, only if it is ‘appropriate’ and complies with the CPA. Unfortunately, arrest is often used as a default response to any lawbreaking. This is unlawful. The courts have previously considered a situation where widespread arrests were being used for a purpose other than bringing people to court for prosecution. In Sex Worker Education and Advocacy Task Force v Minister of Safety and Security 2009 (6) SA 513 (WCC), 114 Para 146. Yearbook_of_South_African_Law_05.indd 183 2020/12/30 12:03 184 YEARBOOK OF SOUTH AFRICAN LAW the practice of police arresting sex workers in Cape Town, without any intention to prosecute but to harass, punish or intimidate them, was held to be unlawful. Even where there is intention to prosecute, arrest is only lawful where it is necessary to secure the attendance of the accused at trial. In the later decision of Coetzee v National Commissioner of Police 2011 (2) SA 227 (GNP), the High Court held that if the person’s attendance at trial can be secured through summons, it does not matter how severe the alleged criminal offence may be. In Coetzee, the High Court went so far as to order the members of the SAPS responsible for the arrest to pay costs de bonis propriis on a punitive scale. In Khosa, Fabricius J touched briefly on this issue, stating obiter that ‘[t]here is no general reason in my opinion to arrest each and every transgressor’ of the Lockdown Regulations.115 In our view, the position is stronger than that. Many such arrests would be unlawful, if the purpose of the arrest is not to prosecute but to send some kind of general deterrent message to comply with Lockdown Regulations. This may be a legitimate purpose, but it can be achieved by giving alleged offenders notice to appear in court, a possibility Fabricius J mentions.116 Arrest in the context of COVID-19 runs the risk of subverting the very purpose of the lockdown Regulations, by exposing enforcement officers and arrested civilians to a greater risk of contracting the virus. It would be appropriate for the code of conduct and operational procedures required under Khosa to set out these principles, to limit the circumstances in which arrests are carried out. Use of force and militarisation of the police Unfortunately, the militarisation of the police was a worrying trend long before lockdown. The Constitution refers to ‘security services’ and a ‘police service’ (s 199) – a deliberate shift from the police ‘force’ of the past. However, the SAPS has reintroduced military ranks (‘brigadier’, ‘general’ etc), having earlier introduced non-military terms. The naming of ranks, like the ‘military language’ of which Fabricius J complained, is a symptom of a broader set of policing concerns that were central to the Marikana Commission of Inquiry.117 The Marikana Commission made findings and recommendations on many of the exact problems that emerged in Khosa. For instance, it expressed concern at the 115 Para 126. Ibid. 117 The Report of the Marikana Commission is available online at https://www.justice.gov. za/comm-mrk/docs/20150710-gg38978_gen699_3_MarikanaReport.pdf. We were both among the several lawyers who acted for victims of police shootings at Marikana, alongside the Khosa applicants’ senior counsel, Ngcukaitobi SC. 116 Yearbook_of_South_African_Law_05.indd 184 2020/12/30 12:03 CONSTITUTIONAL LAW 185 ‘remilitarisation’ of the SAPS118 and recommended that: a panel be set up to review public order policing, including weapons and equipment used by police;119 the executive, including the Minister of Police, ‘should only give policy guidance and not make operational decisions’;120 ‘the staffing and resourcing of Independent Police Investigative Directorate (IPID) be reviewed to ensure that it is able to carry out its functions effectively’.121 So we have been here before, and outside of a state of natural disaster. The Marikana Commission of Inquiry drew attention to precisely the concerns now arising as ‘lockdown brutality’. As with the lockdown, Marikana exposed what are endemic problems with every-day policing. One of the answers to these problems lies in the proper functioning of IPID. Fabricius J alluded to IPID’s insufficient capacity and the fact that it still has an acting director, Mr P Setshedi, which undermines its independence and ability to function. IPID, along with the SAPS, Hawks and NPA, was systematically weakened during the Zuma presidency in the context of state capture. Khosa reveals that IPID is still ailing and, for now, requires a new dedicated complaints mechanism to deal with lockdown brutality complaints against police and military actors. After lockdown, IPID’s role will again be central. During Khosa, IPID’s answering affidavit was filed late with the explanation that the acting head’s term had not been renewed, and he could not sign until the minister renewed it. A permanent appointment and the filling of vacant posts are crucial to capacitate IPID and provide an institutional check on police abuses. Returning to the immediate situation of the lockdown and Khosa, it was reported that the Minister of Police intends to appeal the judgment. The matter may yet reach the Constitutional Court. However, in a circular dated 19 May 2020 the SAPS has released guidelines on the use of force by security services. The guidelines importantly confirm the core principle that we emphasise above – that ‘the object of an arrest is to secure the attendance of a person at his or her trial’ and that ‘a member may in no circumstances arrest a person in order to punish, scare or harass such person or to teach him or her a lesson’. The guidelines further set out principles on the use of force, the prohibition of torture and provide information on where to make complaints about police misconduct. This is an important development, but setting standards alone is insufficient to prevent violations and hold security services accountable. A thorough investigation and action on those implicated in the death of Mr 118 119 120 121 Marikana Report para 1086. Marikana Report 547ff. Marikana Report 551 para 1. Marikana Report 554 para 4. Yearbook_of_South_African_Law_05.indd 185 2020/12/30 12:03 186 YEARBOOK OF SOUTH AFRICAN LAW Khosa and ensuring an effective complaints mechanism are the crucial next steps. 2.1.3 Education Three cases in the period under review related to the right to education and/ or the rights of learners in the context of COVID-19. One South Africa Movement concerned a challenge to the decision to shift from Alert Level 4 to Alert Level 3 and to re-open public schools. The Equal Education matter sought to compel government to reintroduce the school nutrition programme, which had been suspended during lockdown. Skole-Ondersteuningsentrum, the third case, sought to review and set aside the decision not to allow private institutions offering early childhood development (ECD) services to reopen. We review each in turn. Challenge to shift of alert levels and re-opening of schools One South Africa Movement v President of the Republic of South Africa122 saw a challenge to the decision to shift from Alert Level 3 to Alert Level 4 (coupled with a challenge the relevant regulations) and specifically to the decision to re-open public schools. The applicants were One South Africa Movement and Mmusi Maimane, erstwhile leader of the opposition Democratic Alliance. Trade union Solidarity was admitted as amicus curiae, aligning itself with the respondents.123 The same full court that heard Freedom Front Plus decided it. Unlike De Beer and Esau, in which government restrictions were attacked for being excessive constraints on personal and economic freedom, One South Africa Movement was essentially a complaint that government was ‘not doing enough to the protect lives in easing lockdown restrictions’,124 in particular by re-opening public schools. Recognising the importance of the matter, a full court of three judges decided the matter, namely, Mlambo JP, Kollapen J and Keightley J. Complaints of non-joinder were raised by the respondents and expanded by the amicus. The respondents argued that the Members of the Executive Council (MECs) for education and their Heads of Department (HoDs) in each province ought to have been joined because education is an area of shared national and provincial legislative competence in which provinces have key obligations.125 The court dismissed the non-joinder plea. The argument that all School Governing Bodies (SGBs) ought to have been joined is plainly 122 One South Africa Movement v President of the Republic of South Africa [2020] 3 All SA 856 (GP). 123 124 125 Paras 12–17. Para 32. Para 21. Yearbook_of_South_African_Law_05.indd 186 2020/12/30 12:03 without merit and obviously impractical, in our view. The argument for the joinder of provincial MECs and HoDs is stronger and, in our view, the court ought to have treated the objection as dilatory (not fatal) non-joinder, and directed the applicants to join these entities given the key role played, and constitutional and statutory obligations borne by, by provincial departments. The applicants challenged the decision to move from Level 4 to Level 3 (and the promulgation of the relevant regulations) on two main grounds. First, they argued that the decision unjustifiably limited the rights to life, dignity, equality, bodily integrity, health and the rights of children (the rights challenge).126 Secondly, they argued that the decision violated the rule of law and the principle of legality (the legality/rationality) challenge.127 In relation to the decision to re-open schools, the applicants advance the same rights challenge, but emphasised that the decision unfairly discriminated against poorer and black learners.128 The applicants also challenged the reopening of schools on legality/rationality grounds.129 The court carefully set the tone for its consideration of the challenges by identifying the decision-maker and legal framework for each of the impugned decisions (shifting alert level and re-opening schools) and explained the approach required of the court as follows: Each of the decision-makers has explained the basis on which they contend that the decision made was justified. Each has set out in detail the rationale behind each of their decisions, and the expert advice relied upon in their making. This Court is called upon to determine different challenges to different executive decisions, and we must approach the matter on this basis.130 The court began with the challenge to the move to Alert Level 3. The applicants, while accepting that the decision was taken ‘in good faith and with a view to striking a balance between health and safety … and economic activity’, argued that the desire to re-open the economy ought not to supersede the duty to protect lives.131 They argued that, in making the decision, the government missed the milestones set by its own advisors and failed to act in accordance with its own criteria, lowering the alert level when infection rates were rising.132 In relation to the rights challenge, the court held that different rights pull in opposite directions (for and against shifting alert level) and that the 126 127 128 129 130 131 132 Para 75. Ibid. Para 76. Ibid. Para 82. Para 83. Para 86. 187 Yearbook_of_South_African_Law_05.indd 187 2020/12/30 12:03 188 YEARBOOK OF SOUTH AFRICAN LAW ‘competing rights are clearly of equal value’. The court held that, even in relation to the right to life, there are interests that pull in different directions because the right to life ‘means more than biological life’, citing a dictum in S v Makwanyane.133 We make one brief comment in this regard. In our view, the courts should be cautious about expanding the right to life to cover interests protected by other constitutional rights. Whereas this has been necessary in India, for example, because other rights were not constitutionally entrenched, in South Africa the right should retain its core focus. The court did (correctly) hold that the right to life is not hierarchically superior to other rights in the Bill of Rights.134 In any event, the court ultimately rejected the rights challenge. It found that the respondents had indeed met their own criteria, as it had never been the government’s position that lockdown would be eased in direct proportion to the rate of infection.135 On the facts, the court also rejected the contention that the health system was unable to cope with the increase in load resulting from the shift of alert level, accepting the expert evidence put up by the respondents over the less substantiated averments of the applicants.136 The court did not accept that the respondents had violated the rights relied upon by the applicants but held that, to the extent that rights were limited, it was justifiable under s 36.137 The court affirmed that safeguarding the economy is a legitimate government purpose;138 emphasised that the government measures retained preventative intervention measures and restrictions on activities designed to prevent the spread of COVID-19;139 and that the regulations retained flexibility to enable government to impose stricter measures in ‘hotspot areas’.140 The court then turned to the legality/rationality challenge in respect of the shift of alert levels. This issue centred on ss 27(2) and (3) of the DMA. Section 27(2) empowered the Minister of CoGTA to make regulations or issue directions, and s 27(3) provided that these powers ‘may be exercised only to the extent that this is necessary for the purpose of: (a) Assisting and protecting the public; (b) Providing relief to the public; (c) Protecting property; (d) Preventing or combating disruption; or 133 134 135 136 137 138 139 140 S v Makwanyane 1995 (3) SA 391 (CC) paras 326–327. Paras 88–89 and 159. Para 98. Para 99. Para 107. Para 108. Para 109. Ibid. Yearbook_of_South_African_Law_05.indd 188 2020/12/30 12:03 CONSTITUTIONAL LAW (e) 189 Dealing with the destructive and other effects of the disaster’. The applicants argued that the move to Alert Level 3 and the concomitant regulations did not meet what it characterised as the ‘strictly necessary’ requirement of s 27(3).141 The court left open whether s 27(3) imposed a test of ‘strict necessity’, but held that, even if it did, the test was met by the impugned decision and regulations.142 It held that safeguarding the economy would fall within ‘protecting the public’ and could also be seen as authorised by paragraph (c), ‘protecting property’.143 The court accordingly dismissed the challenge to the decision to shift to Alert Level 3. It then turned to the challenge to the re-opening of schools. The applicants did not seek permanent relief in relation to school reopening, but rather an order setting aside the re-opening and suspending that order to enable the Minister of Basic Education to submit various readiness and implementation plans for approval before re-opening.144 The court considered the reopening plans that had been put up by government in some detail, noting that the applicants had not identified any deficiencies in them and finding that the plans were ‘detailed and well-considered’.145 The court rejected the legality/rationality attack on the re-opening of schools swiftly, holding that the decision was clearly rational in view of the right of learners to a basic education and the duties of the state in that regard.146 The rights challenge in relation to re-opening schools was a more difficult issue, and the court acknowledged that the issue involved a range of rights weighing in different directions. The court concluded, placing particular emphasis on the expert evidence, that ‘the balance was appropriately struck between the right to life and other implicated rights, such as the right to education and the right to food’.147 The court held that, while it considered the correct approach to the challenge to entail the balancing of constitutional rights, if the decision constituted a limitation of rights, the limitation was reasonable and justifiable under s 36.148 The court accordingly dismissed the application but, applying the Biowatch principle, made no order as to costs.149 However, the court ended its judgment with a comment on the tone and manner of the litigation, under the heading, ‘Adversarial litigation’, as follows: 141 142 143 144 145 146 147 148 149 Para 114. Para 118. Ibid. Para 121. Para 148. Para 155. Para 165. Paras 174–181. Paras 202–208. Yearbook_of_South_African_Law_05.indd 189 2020/12/30 12:03 190 YEARBOOK OF SOUTH AFRICAN LAW 210. Our system of adversarial litigation occurs within a society in which freedom of expression is a fundamental part of the constitutional order. The consequence is often what is described as “no holds barred litigation” which for some may translate to mean that there should be no boundaries to the manner in which parties litigate. This cannot be so and cannot be consistent with the values of human dignity and respect that the Constitution seeks to advance. 211. In this application, there were many examples of such boundless and unjustified attacks launched. They ranged from accusations of racism, to those of wanton disregard. The use of phrases, such as ‘sending children into the fire of COVID-19’ were used quite liberally. On the other hand, accusations of political opportunism, of popular posturing, and of abusing a health crisis to advance political points were also used. In the end we could find no justifications for such remarks and we simply think it necessary and wise to caution litigants that even in an adversarial system that must countenance frank and robust litigation, there must be room for recognising, at the very least, the dignity and worth of all those involved. Overall, while some of its findings on difficult factual issues may be contestable, One South Africa Movement is a rigorous and compelling judgment that serves in many ways as a model for the determination of challenges to COVID-19 measures by the courts, and a powerful reminder to litigants on all sides regarding the spirit, tone and manner in which such cases should be litigated. School nutrition case; right to a basic education; right to food Equal Education v Minister of Basic Education150 concerned a challenge to the suspension during COVID-19 lockdown of the National School Nutrition Programme (NSNP), which ordinarily provides a daily meal to all qualifying learners.151 The applicants – social movement Equal Education (EE) and the SGBs of two schools, represented by Equal Education Law Centre and SECTION27152 – brought an application to compel the Minister of Basic Education and the MECs of eight provinces (excluding the Western Cape) to implement the NSNP. The Children’s Institute was admitted as amicus curiae, represented by the Centre for Child Law. The court admitted as evidence an affidavit by Ms 150 Equal Education v Minister of Basic Education (unreported, referred to as [2020] ZAGPPHC 306, 17 July 2020, available online at http://www.saflii.org/za/cases/ZAGPPHC/2020/306. html). 151 Para 2. 152 The judgment omits SECTION27 in error. ((Authors: is the highlighted text correct, and correctly in caps?)) Yearbook_of_South_African_Law_05.indd 190 2020/12/30 12:03 CONSTITUTIONAL LAW 191 Hall, a senior researcher of the Institute, in the absence of any objection to its admission.153 The court explained that, during the hearing, the issues in dispute crystallised into three central questions: first, whether in fact the government had refused to implement the NSNP; secondly, whether a supervisory interdict was appropriate; and, thirdly, whether the right to a basic education includes a duty to provide basic nutrition.154 Poterill J granted the application. The court began by describing the operation of the NSNP and its importance, as ‘literally a life-saving programme’.155 The court found that during COVID-19, once schools were closed, the NSNP was not rolled out, although the government did announce general mitigation measures, including the Social Relief of Distress Grant and feeding schemes.156 However, the court held that these were not a viable substitute for the NSNP.157 The court considered the extensive affidavits of learners, parents and SGB chairpersons put up by the applicants, concluding that the ‘affidavits make it clear that hunger is not a problem, hunger is an obscenity.’158 The court examined the extent of the challenge of hunger. It referred to the evidence provided by the amicus curiae that 30 per cent of the South African population experience ‘severe levels of food insecurity – a far higher rate than the global average or even the average for Africa’.159 Regarding children and the NSNP specifically, the court found that out of 20 million children in the country, 13 million are enrolled in schools and nine million benefit from the NSNP, being learners in quintiles 1–3 (the poorest schools). Therefore, the court found, the NSNP supplements the nutrition of half of all children in the country, three-quarters of all learners and one-fifth of the total population.160 The court commented that this not only delivers necessary nutritional benefits but also enables children to learn better.161 The court accepted that the interruption of the NSNP had a ‘devastating effect’ on nine million learners.162 The court then turned to the constitutional rights in issue. The applicants invoked the right to a basic education in s 29(1)(a) and the child’s right to nutrition in terms of s 28(1)(c) read with the right to food in s 27(1)(b) of the 153 154 155 156 157 158 159 160 161 162 Para 5. Para 8. Para 19. Paras 22–24. Para 24. Paras 27–29. Para 30. Para 32. Ibid. Para 34. Yearbook_of_South_African_Law_05.indd 191 2020/12/30 12:03 192 YEARBOOK OF SOUTH AFRICAN LAW Constitution.163 Somewhat astonishingly, the state denied that it had any duty in relation to children’s rights to nutrition under s 28(1)(c). However, in an example of the excellent use of international human rights law, the court noted that South Africa’s own state reports to treaty bodies had described the NSNP as giving effect to its duty under s 28(1)(c) of the Constitution.164 The court accordingly held that the state has constitutional and statutory obligations to provide basic nutrition to learners under s 29(1)(a)165 and to all children under s 28(1)(c). Regarding the s 28(1)(c) right, the court held: The children’s right in s 28 of the Constitution are not subject to internal limitation such as the availability of resources or progressive realization. These rights are unqualified and immediate with the only limitation under s 36 of the Constitution. The NSNP cannot be rolled out grade by grade.166 The court also commented that the NSNP gives effect to s 9(2) of the Constitution, the provision that deals with restitutionary measures or ‘affirmative action’,167 noting that the state accepted this proposition. Although the judgment does not rest on this finding, we comment briefly to note that this proposition is not correct. Although all socio-economic rights impose obligations that may require the state to prioritise black people, this does not mean that every programme to discharge these obligations constitutes restitutionary measures under s 9(2). Section 9(2) has its own scope and requirements.168 It serves to place beyond doubt that government may take measure to promote or advance persons, or categories of person, disadvantaged by unfair discrimination. This is distinct from the obligations imposed on the state by the socio-economic rights in the Constitution, each of which sets its own content and defines the duties of the state, including the standards applicable. One of the main distinctions between affirmative action under s 9(2) and socio-economic rights is that, whereas socio-economic rights apply generally to ‘everyone’ based on need, s 9(2) affirmative action measures do not require that every beneficiary demonstrate individual need. In our view, the NSNP is not a s 9(2) measure, 163 Ibid. Paras 38–40. 165 Para 42. 166 Para 54. 167 Section 9(2) provides: ‘To promote the achievement of equality, legislative and other measures designed Chapter 2: Bill of Rights 6 to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.’ 168 In relation to the distinction between s 9(2) measures, the prohibition on unfair discrimination in s 9(3) and obligations under s 29(1)(a), see Solidariteit Helpende Hande NPC v Minister of Basic Education (unreported, referred to as [2017] ZAGPPHC 1220, 8 November 2017; available online at http://www.saflii.org/za/cases/ZAGPPHC/2017/1220.pdf). 164 Yearbook_of_South_African_Law_05.indd 192 2020/12/30 12:03 CONSTITUTIONAL LAW 193 but a programme implemented in the discharge of the state’s obligations under ss 29(1)(a), 28(1)(c) and 27(1)(b). The court made no further reference to the general right to food in s 27(1) (b) of the Constitution, which had been relied upon by the applicants. The court’s reliance on the child’s right to nutrition under s 28(1)(c) he