The unfamiliar landscape of quick executive decision-making and fast-paced law writing over the past few months came as a gift for many a law nerd. At times, it has felt like a quiz show with fingers on the buzzer, ready to answer the question: "Is this legal?" 

Some of the actions and laws are legal, but some are not.

The De Beer case, heard in the high court this past week, was an opportunity missed to get clarity on which ones are rational, valid, and constitutional, thereby holding the executive effectively accountable.

Section 2 of our Constitution makes it clear that the Constitution is the supreme law of the Republic, and all law or conduct inconsistent with it is invalid.

This binds all of us, including the executive.

Constitutional review

In a functioning constitutional democracy, executive actions can be tested in court, as is being done in various courts now. Section 172(1)(a) gives the court this power of constitutional review and places a duty on the courts to "declare any law or conduct that is inconsistent with the Constitution" as invalid to the extent of its inconsistency.

These powers must be exercised with restraint to ensure that the courts do not step into the realm of other branches of the state. When we deal with legislation, extra care should be taken by courts not to overstep the boundaries of the legislature.

For this reason, case law made it clear that "where orders invalidate legislation, such orders [must] be specific". In fact, the Constitutional Court has dismissed an application on the basis that "the order in question should clearly indicate precisely what […] provisions […] is being declared constitutionally invalid".

"Just and equitable" orders

The court may make an order that is just and equitable. This is a broad discretion that allows the court to also manage the consequences of a declaration of invalidity in a sensible manner.

When the court declares legislation invalid, it can no longer be applied. The law will be deemed to be invalid from its beginning unless the court limits this retrospective effect of invalidity.

Often when laws are declared unconstitutional, the declaration of invalidity is suspended to allow the legislature or the executive time to correct the defect. This is to ensure that we do not end up in a legal no-man's land.

The De Beer case

So how was this applied in the De Beer case? The short answer is - it is not clear.

This murkiness might be because of a combination of the Covid-pace of decision-making, the urgency of the application and the apparent lack of cooperation from the side of the minister.

It might also be because judgments are often only as good as the arguments presented in court, and from the director-general's replying affidavit it seems as if there is a misunderstanding on what will be constitutional laws. Either that, or as my colleague Prof Pierre de Vos remarked: The government lawyers probably thought the applicants are fly-by-night lawyers and that the application is not going to fly.

The court's diagnosis is that the minister is approaching her duties from the wrong angle. The minister's starting point should be, "how can we as the government limit Constitutional rights in the least possible fashion while still protecting the inhabitants of South Africa?", rather than "we will seek to achieve our goal by whatever means".

In this context, the court must hold the minister accountable for her decisions in a way that is clear and precise, and that requires specific action.

The court finds that the overarching objective of the lockdown was rational and necessary, even though specific provisions are problematic, and probably unconstitutional. So we must distinguish between the overall declaration of a state of disaster, which the court did find to be legal, and the regulations that were promulgated in consequence of this declaration.

No application of the law

A large part of the judgment is spent discussing these regulations (and strangely also directives not issued by the minister, but that is for another article). 

It is here that things get a bit deurmekaar. But the court makes findings of irrationality without explaining how it came to that decision.

The rationality test (linked to the principle of legality) requires that the means employed to achieve a particular purpose is rationally related to the purpose for which the power is given. In the case of the Disaster Management Act, the purpose would, simply put, be the management of disasters. Anything that is done in terms of the Act (including the regulations) must be rationally related to the purpose of managing disasters.

But the court does not do this analysis. For instance, at some stage it states that "loved ones are by lockdown regulations prohibited from leaving their home to visit [a patient], [b]ut once the person passed away, up to 50 people […] may […] attend the funeral of the one who has departed and is no longer in need of support". The court found that it is "the disparity of the situations [that] is not only distressing but irrational". But the court does not say why.

Is it the gathering of 50 people that is "irrational", or the prohibition from visiting an infected patient? In what sense does the regulation not meet the aim of containing the spread of the virus? The court needs to be precise in what it is that it finds, in law, to be irrational.

The same goes for the limitation of fundamental rights, and the limitations test in Section 36 that needs to be applied.

Of course, a lack of explanation from the minister does not help. It is up to the parties in court to state what they think is rational or irrational and provide reasoning and evidence for it. Assumptions and perceptions should not influence a case. Instead, in this case, scientific evidence needs to be placed on the table to show why (or why not) a regulation is necessary. 

But if the minister does not give reasons, the court can state that, in the absence of reasons, this is what it deems rational.

So, in this respect, the court makes a similar mistake to that of the minister – requiring us to accept some of the arguments on face value.

All for one and one for all?

The court, in the end, states that many regulations are irrational, but not all of it. It then makes a leap and finds that (all) the regulations are unconstitutional and invalid. It orders the minister to review, amend and republish it "with due consideration to the limitation each regulation has on the rights guaranteed in the Bill of Rights".

Without declaring specific regulations unconstitutional, the court places the duty to decide which regulations pass the test back in the hands of the minister. The court sets out the test that the government must use to review the regulations: Does the regulation encroach on a Constitutional right and, if so, is this encroachment justifiable?

This is the law, but there is little accountability here. The minister can answer yes to both questions, and then, legally, republish the same regulations "after due consideration" (although this would not be wise).

The road ahead

The regulations are still valid in their current form until 17 June. The state of disaster was extended on Thursday for another month, until 15 July.

If the minister appeals, the judgment will be suspended. If it does go on appeal, the appeal will in all probability be upheld.

The minister will be kept busy in a range of other cases – from the request of parliamentary oversight in the Disaster Management Act to the Constitutional validity of the Act itself.

Every case will help to clarify, to calibrate, to converse, and to fine-tune our constitutional democracy - if we stick to the constitutional framework and legal reasoning.

- Elmien du Plessis is an associate professor of constitutional law at North West University.