covid-19 regulationsconstitutional law


In De Beer and others v Minister of Cooperative Governance and Traditional Affairs (21542/2020) [2020] ZAGPPHC 177 (2 June 2020), the High Court dealt with the validity of the declaration of a national state of disaster. It also considered the validity of the regulations to address the spread of COVID-19.


The High Court did not find that the declaration of a national state of disaster was irrational. This was because the declaration took into account the worldwide spread of COVID-19, the pronouncements made by the World Health Organization, and the absence of any vaccine or effective treatment.

Turning to the regulations, the High Court applied the rationality test. This asks whether there is a rational connection between the intervention (i.e. the promulgation of the regulations) and the purpose for which it was taken. The test involves an evaluation of the relationship between the means and the ends.

In its application of the rationality test, the High Court examined many of the regulations promulgated by the Minister. It found that in many cases the regulations were not rationally connected to the objective of slowing the rate of infection or limiting its spread.

The High Court also applied the limitation test. This asks whether the limitation of a constitutional right is justifiable in an open and democratic society, based on human dignity, equality and freedom.

Where ‘means’ are used by the state to achieve certain ‘ends’, such that a constitutional right is infringed, an evaluation must be carried out. The state must decide whether such infringement is justifiable. Without such an evaluation, the enforcement of such ‘means’ would be arbitrary and unlawful. This would be so even in a bona fide attempt to achieve legitimate ‘ends’.

The High Court held that the encroachment by the regulations on certain constitutional rights was not justifiable.

Accordingly, the regulations promulgated by the Minister were declared to be unconstitutional and invalid. However, such declaration was suspended until the Minister had reviewed and amended the regulations, to be done within 14 days or such longer time as the High Court would allow.

In the interim, the regulations for ‘Alert Level 3’ would continue to apply.

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