With the whole country under lockdown, having now moved from Stage 5 to Stage 4, many people are asking whether the regulations passed in terms of the Disaster Management Act no 57 of 2002 (the “DMA”) are proportional to the risk posed by the coronavirus. A very recent judgment of the South Gauteng High Court has found that the restrictions imposed by the regulations are not unreasonable or unjustifiable, and its reasoning is instructive for South African attorneys contemplating whether to challenge the regulations on the basis that the regulations violate various constitutional provisions guaranteeing the citizens of South Africa freedom of religion, association and movement.
In Muhammed Bin Hassim Mohamed and others v the President of the Republic of South Africa and others, Case number 21402/20, the High Court was faced with an urgent application to declare Regulation 11B(i) and (ii) read with the definition of “gathering” in the Regulations issued under Section 27 of the DMA (the “Lockdown Regulations”) to be overbroad, excessive, and unconstitutional.
The applicants’ case was that, in terms of their religious beliefs, they were enjoined to perform five daily prayers at the mosque and that the Lockdown Regulations had criminalized the performance of these religious obligations. According to the applicants, the Lockdown Regulations violated not only their freedom of religion but also their freedom of association, freedom of movement, and their right to life and dignity, all principles enshrined in South Africa’s bill of rights.
The respondent’s case was that, while the Lockdown Regulations entail serious rights limitations, they constitute a reasonable and justifiable limitation and are thus constitutionally permissible under section 36 of the Constitution. That section provides that any rights in the Bill of Rights may be limited to the extent that the limitation is reasonable and justifiable, taking into account the relation between the limitation and its purpose and less restrictive means to achieve the purpose. This qualification is known as the “proportionality” assessment.
The High Court seemed to recognize the importance of conducting a proportionality assessment when it quoted Minister of Home Affairs v NICRO 2005 (3) SA 280 CC: a limitations analysis requires a court to ‘determine the proportionality between the extent of the limitation of the right, considering the nature and importance of the infringed right on the one hand, and the purpose, importance and effect of the infringing provision, taking into account the availability of less restrictive means available to achieve that purpose.”
Notwithstanding this recognition by the court of the need to apply the proportionality assessment, the remainder of the judgment is devoid of any proportionality assessment. Instead, the court focused on the question whether the limitations imposed by the Lockdown Regulations are reasonable and justified. The High Court came to the conclusion that the Lockdown Regulations were reasonable and justified given the serious danger to health that the virus represented. It is submitted that the failure by the court to apply the proportionality assessment led it to the wrong conclusion. The question that the court should have addressed was not only whether the Lockdown Regulations are reasonable and justified. The question it should have addressed is whether the Regulations are proportional to the risk being presented by the coronavirus.
Closing thoughts
When one bears in mind that South Africa went from no lockdown to a stage 5 lockdown, it can be argued that the executive should have used a phased approach (i.e. going to stage 2, then stage 3, then stage 4, then stage 5) to assess whether a less restrictive approach to flattening the curve of infections would justify the curtailment of the basic rights of its citizens. Instead, the government took a panic based approach by going directly to a stage 5 lockdown, and this decision plunged the country and its economy into darkness.
Yesterday, Germany’s highest court, the Federal Constitutional Court, took the opposite approach in overturning a blanket ban on religious services during the coronavirus crisis. The court was of the view that exceptions could be granted if sufficient precautions were taken to avoid infection. Given the “serious infringement of religious freedom” caused by the ban, the court said it was “hardly tenable” that there was no possibility to apply for an exception. The court was receptive to the various ways that the mosque in question had suggested of lowering the risk of infection, including a lack of singing, masks for the congregation and marking areas reserved for prayer. Although similar measures were proposed by the applicant in the Hassim Mohamed case, these seemed to be lost on the Johannesburg High court which was only concerned with the (necessary but insufficient) question whether the Lockdown Regulations were reasonable and justified.
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Ivor Heyman is an advocate at the Johannesburg Bar. He publishes articles of interest to attorneys and their clients. For questions or comments you can reach him at adv.heyman@gmail.com or 061-120-8740.