How to Challenge Lockdown Regulations

An overview of how to challenge lockdown regulations in South Africa compared to an advanced democracy like that of Switzerland

Switzerland will hold a referendum on whether to strip the government of its power to impose lockdown measures.

The Financial Times reported that during mid-January, campaigners handed in a petition with 86,000 signatures, well above the 50,000 required to trigger a nationwide vote under the country’s system of direct democracy.

The Covid-19 Act, passed in September last year, has reportedly infuriated the liberal Swiss nation as it grants central government unchecked powers to impose indefinite rules to stop the spread of the virus.

The country is one of the oldest democracies in the world and places a heavy emphasis on individual liberty.

The referendum will make Switzerland the first and only country to allow its citizens a direct vote on lockdown restrictions.

POSITION IN SOUTH AFRICA

As of March 2020, our government has introduced a litany of harsh regulations under the guise of the Disaster Management Act (“the Act”).

Various court challenges have since been launched in response to these regulations, with mixed success. In one of the reported judgements, Judge Norman Davis said “the declaration of a national disaster places the power to promulgate and direct substantial (if not virtually all) aspects of every day life of the people of South Africa in the hands of a single minister with little or none of the customary parliamentary, provincial or other oversight functions provided for in the Constitution in place.” In such circumstances, the regulations have to be “closely scrutinised”, said Davis. David went on to say “each regulation has to be both rational and justifiable under the Constitution”.

JUDICIAL REVIEW AND THE RATIONALITY TEST

In constitutional law “judicial review” usually means the power of the courts to scrutinise and declare unconstitutional any type of legislation or state conduct that infringes on rights in the Bills of Rights (such as the right to medical treatment, freedom of movement, education, etc.) or otherwise offends against provisions of the Constitution. For regulations to pass constitutional muster, there must be a rational relationship between the method and object. This is not an overly high threshold to meet, because the mere establishment of a rational connection is adequate to save an act from invalidity.

MOTIONS OF NO CONFIDENCE

If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign.

ENDING LOCKDOWN REGULATIONS IN SOUTH AFRICA

Government’s failure to act swiftly to procure and distribute vaccines has been widely reported and criticised. It is, therefore, likely that the draconian regulations, stemming from the Act, will be around for months, if not years, to come.

The executive’s regulations seem, at present, to enjoy the support of the ruling party. We are, therefore, unlikely to see any motion of no confidence succeeding unless there is a monumental mind shift in the ruling party.

CHALLENGING LOCKDOWN REGULATIONS IN SOUTH AFRICA

With this in mind, South Africans, unlike Swiss nationals, will be forced to head to court, each and every time they wish to challenge any regulation stemming from the Act.

Jean-Paul Rudd
Partner | Attorney
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