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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

Case No : 2021/01432

 

Reportable: Yes

Of interest to other judges: Yes

13 December 2021

 

SOUTH AFRICAN NATIONAL CHRISTIAN FORUM

(“SANCF”)                                                                                           First Applicant

CORNERSTONE CHURCH MINISTRY

(Registration No. 021-979)                                                                Second Applicant

ANTIOCH BIBLE CHURCH

(Registration : 2011/112484/08)                                                         Third Applicant

 

And

 

THE MINISTER OF CO-OPERATIVE GOVERNMENT

AND TRADITIONAL AFFAIRS (“COGTA”)                                       Respondent

CASE NO: 2021/3002

In the matter between

 

MUSLIM LAWYERS ASSOCIATION                                                  First Applicant

ERMELO MUSLIM JAMAAT

(NPO: 040 - 949)                                                                                 Second Applicant

 

MUHAMMED FAIYAAZ DENDAR                                                     Third Applicant

(In his personal capacity and as the duly appointed

Secretary of the second applicant)

 

And

 

THE SOUTH AFRICAN POLICE SERVICES                                   First Respondent

MINISTER OF POLICE                                                                     Second Respondent

THE MINISTER OF CO-OPERATIVE GOVERNANCE

AND TRADITIONAL AFFAIRS                                                          Third Respondent

 

CASE NUMBER: 2021/3344

In the matter between:

 

SOLIDARITEIT HELPENDE HAND NPC                                          First applicant

AFRIFORUM NPC                                                                             Second applicant

DIE INSTITUUT VIR CHRISTELIKE

GRONDSLAGSTUDIES NPC                                                          Third applicant

DIE GEREFORMEERDE KERK INNESDAL                                   Fourth applicant

HERVORMDE KERK PREMIERMYN                                              Fifth applicant

GEREFORMEERDE KERK WILROPARK                                       Sixth applicant

VRYE GEREFORMEERDE KERK PRETORIA                                Seventh applicant

GEREFORMEERDE KERK ORANJERIVIER                                   Eighth applicant

HERVORMDE KERK OOSTELIKE

PIETERSBURG                                                                                 Ninth applicant

GROOT, DAWID BENJAMIN                                                             Tenth applicant

 

And

 

THE MINISTER OF CO-OPERATIVE

GOVERNANCE AND TRADITIONAL AFFAIRS                                 Respondent

 

CASE NUMBER: 2021/2619

In the matter between:

 

FREEDOM OF RELIGION SOUTH AFRICA NPC                              Applicant

 

and

 

MINISTER OF COOPERATIVE GOVERNANCE

AND TRADITIONAL AFFAIRS                                                            First Respondent

PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA                     Second Respondent

MINISTER OF HEALTH                                                                       Third Respondent

NATIONAL CORONAVIRUS COMMAND COUNCIL                          Fourth Respondent

 

 

Judgment

 

 

Vally J

Introduction

[1]          There are four cases before me. The applicants in each case launched their respective cases independently of each other. The respondents are not all the same in each case. One respondent is common to all of them. It is the Minister of Co-operative Governance and Traditional Affairs (the Minister). The relief sought in all the cases is essentially the same, save for one particular claim made in the case brought by Freedom of Religion SA Inc (FOR SA). FOR SA asks for an order that the work of ‘religious workers’ be declared an essential service. Other than that, all the applicants make the same arguments, or at least echo each other’s arguments. The Minister is also the only respondent that opposes the relief sought in all the applications, and her case is the same in all four. For this reason, it was, correctly so, agreed by all the parties that the matters should be consolidated. The applications concern regulations promulgated by the Minister.

 

[2]          Section 27(1) of the Disaster Management Act No 57 of 2002 (the Act) empowers the Minister to declare a national state of disaster[1]. The Act also empowers her to make regulations. On 15 March 2020 exercising these powers the Minister declared a national state of disaster. On 18 March 2020, the Minister promulgated regulations in terms of the Act to take the ‘steps necessary to prevent the escalation of the disaster or to alleviate, contain and minimize the effects of the disaster’.[2] The declaration and the regulations are a response to the outbreak in 2019 of the Coronavirus (virus). The virus, in the words of the Minister, is ‘efficient, fast and fatal’. It is highly contagious. Its spread has been a truly global phenomenon and, more importantly, it has spread at an alarming rate.

 

[3]          The virus infects the respiratory system. It is transmitted mainly through respiratory droplets generated primarily by coughing, sneezing, spread of aerosols and to a lesser extent through contact with contaminated surfaces. The viral infection is the cause of a disease universally referred to as Covid-19. Covid-19 poses an unprecedented health threat to every nation on this planet. Its spread places a great strain on the economy in general and health services in particular of all nation-states.

 

[4]          This virus, like most, mutates and in time takes on different forms and presents as different variants. It is a notorious fact that by self-transforming into different variants viruses can be enormously difficult to combat. And this is particularly so in the present case, as this virus is new to our experience.

 

Lives and livelihoods

[5]          Since the outbreak of Covid-19 millions of people have been infected by the virus and millions have lost their lives as a result. Others lost their lives from diseases such as diabetes or cardiovascular diseases which were triggered or exacerbated by the contraction of Covid-19. Death for all of them has been a lonely and painful affair. Many of those who lost their lives were employed in the health care sector – doctors, nurses, ambulance workers and other support staff. Many people lost their means of income. To say that society in general has been traumatised by this experience is no exaggeration.

 

[6]          The gravity of all social life has shifted, and quite remarkably so. Out of an abundance of caution many people have unilaterally reduced their social contact in order to protect their own and their families’ health and safety. Many people were forced to restructure their social activities by government imposed restrictions such as the promulgation of the regulations in question here.

 

[7]          At the same time, it has had a profound impact on the economy, threatening it at its most fundamental level. To arrest its exponential growth, apart from changing their social behaviours, many had to change the way they went about their economic activities: one of these took the form of workers, particularly office-based ones, having to work remotely. It was – and unfortunately still is - necessary for governments around the world to impose restrictions on the free movement of peoples and on the way economic and social life is to be organised and experienced. Rules of engagement changed. In the retail industry, restrictions were imposed, some by governments, others voluntarily by retail businesses involving, amongst others, a restriction on the number of persons entering the business at any one time. The restaurant trade and the travel industry saw a huge decline in their businesses some, but not all of it, as a result of government imposed restrictions.

 

[8]          Unsurprisingly then, the outbreak of Covid-19 caused a huge contraction in economic activities. Unemployment and poverty surged. Incomes of many businesses fell, dramatically so in some cases. The country experienced an upward spiral in deaths and a downward spiral in living standards.

 

[9]          The twin crises – loss of lives and livelihoods – is a unique experience for modern day society. Its occurrence has been so sudden that most governments were stranded on policy as to how to deal with it: its emergence forced governments to act without the benefit of lessons drawn from past experiments and experiences, and with little time for deliberation. The information they work with when reacting to the consequences of the spread of the virus is often very recent and is constantly changing. The tools available to governments to deal with the crisis is also very limited.

 

[10]       Governments play a major role in developing economic policy and in creating conditions for people to engage in economic activities. The onset of Covid-19 has forced governments to incorporate the high risk of death into their economic calculus.

 

The impact has been ever-changing and so has the response from government

[11]       At the height of the contagion many thousands of people were infected daily. During its low, a few hundred were infected daily: in the words of the Minister, ‘[t]he precise reasons for spikes and dips in infection rates are not clearly evident or predictable.’ This fluidity in its impact called for vigilant monitoring of the situation and for a swift and an appropriately robust response from the Minister. To cope with this the government adopted a ‘Risk Adjustment Strategy’ (RAS). The strategy involved imposing and lifting restrictions on activities, behaviours and movements of people on the basis of government’s assessment of the risk of infection-spread, its impact on the health services and its impact on the economy. The imposing and lifting of restrictions is not a decision taken by the Minister on her own. It is taken ‘in collaboration with’ other ministers that form part of the ‘economic cluster and other government departments’. For obvious reasons the role of the Minister of Health is crucial in the decision making process. The decision is guided by ‘advice from scientists’, who operate as part of the Ministerial Advisory Committee (MAC). The decision follows consultations with important stakeholders such as organised labour and business meeting under the auspices of Nedlac, leaders of political parties, Premiers and leaders of stakeholders such as those operating in the religious sector. An important fact is that the imposing of the impugned regulations followed consultations with the leaders of the religious groupings, which consultations were undertaken not by the Minister but by the President. Finally, the decision is taken in consultation with Cabinet.

 

[12]       As alluded to, the regulations have in time undergone changes: some regulations were amended, others superseded. The imposition and lifting of restrictions is an integral part of a declaration of various ‘Alert Levels’. The Alert Levels are determined by the National Coronavirus Command Council (NCCC). The following provides a brief sketch of the Alert Levels from their inception up to the promulgation of the impugned regulations:

25 March 2020                Alert Level 5

29 April 2020                   Alert Level 4

25 June 2020                  Alert Level 3

17 August 2020               Alert Level 2

18 September 2020        Alert Level 1

29 December 2020         Alert Level 3

11 January 2021[3]         Adjusted Alert Level 3

 

[13]       In the undisputed words of the Minister, ‘the consequence of restrictions on movement’ has been ‘an unprecedented global economic crisis.’ And, ‘in the face of this global economic melt-down, many countries have been forced to gradually ease lockdown restrictions despite the fact that the virus has not been eliminated.’ It is also undisputed that many people have lost and continue to lose their lives to this virus.

 

[14]       The prohibition on faith-based gatherings was introduced during Alert Level 5 on 25 March 2020 and during Alert Level 4 introduced on 29 April 2020. The prohibition was uplifted thereafter. It was re-introduced on 29 December 2020 during Alert Level 3 and kept in place on 11 January 2021 during Adjusted Alert Level 3. It was uplifted again on 1 February 2021. The present case focusses on the prohibition between 29 December 2020 and 1 February 2021. The prohibition was part of a repertoire of restrictions – involving sale of goods, trading hours of businesses, movement of people, etc. - that were imposed, lifted, re-imposed, re-lifted since March 2020. They were not unique.

 

[15]       From their inception on 25 March 2020 the regulations attracted challenges as to their legality and their constitutionality. Those matters have been finalised. There is therefore some learning on the issues that present themselves in this matter.

 

[16]       The present challenges relate to regulations published on 11 January 2021. In terms of the regulations the country was placed on ‘Adjusted Alert Level 3’.[4] Two regulations in particular caused the applicants great consternation: regulations 36(3) and 84(3) (the impugned regulations). In terms of these regulations: ‘[A]ll faith-based gatherings are prohibited.’ Social gatherings were also prohibited. The regulations relating to faith-based gatherings were amended on 1 February 2021 (amended regulations), in terms of which faith-based gatherings were allowed with certain restrictions. This situation would prevail until the next set of regulations were promulgated. The amendment, understandably, took the wind out of the sails of the applicants.

 

[17]       The applicants ask that the impugned regulations be set aside for being inconsistent with rights set out in the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution) and for being irrational.

 

[18]       The Minister defends the impugned regulations but says that the court need not engage with the interesting and robust debate that ensues in the papers between her and the applicants, as the impugned regulations have been radically amended. As a result, the cause of the applicants’ complaint has been removed. Thus, she asks that the applications be dismissed on the ground that the dispute has become moot.

 

[19]       In defence of the impugned regulations, the Minister lays out the following indisputable facts:

a.         During November 2020 a picture showing a ‘sharp spike’ – a second wave - in infections began to emerge. The number of infections rose on a daily basis and on 24 December 2020 it reached 14 305. This put a great strain on the health services. At the same time, as the spread is exponential, this sharp increase in infections was a cause of grave concern for government, as a failure to stem the increase would result in hospital services not being ‘able to cope with the influx of Covid-19 patients’, they would simply be ‘overwhelmed’;

 

b.         Between Christmas eve and 28 December 2020 more than 50 000 new Covid-19 cases were reported;

 

c.         One particular cause of the increase was the gathering of large groups of people at ‘super-spreader events’;

 

d.         The presence and prevalence of a new, highly contagious variant was discovered at this time;

 

e.         The President addressed the nation on 28 December 2020 and on 11 January 2021, and during that period the infections were growing exponentially.

 

[20]       As for the rationality of the decision, she draws upon the speeches of the President to the people of the country, which she maintains outline the reasoning and logic underpinning the decision.

a.         In his speech on 23 April 2020 the President points out that while a full lockdown – Level 5 lockdown – is the most effective way to halt the spread of the virus, it cannot be imposed because:

‘Our people need to eat. They need to earn a living. Companies need to be able to produce and to trade, they need to generate revenue and keep their employees in employment.’

 

In order to allow people to earn a living – a necessity if a rise in poverty levels was to be prevented - various industries would be allowed to operate under strict conditions;

 

b.         In his speech on 28 December 2020 the President informed the people that this was a moment for heightened caution, that private and public hospitals were close to full capacity, that public health sector workers put themselves at great risk by caring for Covid-19 patients, and that during the month of December 4630 of them contracted the disease as a result of which it was necessary to impose tighter restrictions. These included prohibiting certain gatherings and reducing the trading hours of certain businesses, such as restaurants and casinos, and restricting the sale of alcohol. All movement of persons from 21h00 to 06h00 was prohibited save some, such as by essential workers, who were exempted from this restriction on their freedom of movement. Recognising that the restrictions were ‘drastic’, the President stated that they are ‘now necessary to ensure compliance with the most basic of preventative measures.’ A key part of his speech was that while government recognised the importance of the alcohol industry in sustaining the economy – ‘as a major employer and an important contributor to our economy’ - government was, nevertheless, of the view that it was necessary to impose a restriction on its operations in ‘order to save lives.’ Finally, the President emphasised that the regulations would be reviewed ‘within the next few weeks’ if there is a ‘sustained decline in infections and hospital admissions’, and that it would want normal life to resume.

 

c.         In his speech of 11 January 2021 the President, in the course of demonstrating the rationality of the decision underpinning the January regulations, relayed certain facts. He informed the nation that since the arrival of the new year there were 190 000 new infections, and since the advent of Covid-19 on our shores the country had (i) experienced 1,9m cases with 148 000 of those being hospitalised at some stage; and, (ii) suffered 33 000 deaths. On that particular day there were over 15 000 people in hospitals nationally with Covid-19, thus placing a great strain on the health workers and health services. Government had consulted with numerous organisations, religious leaders and others. Given the extremity of the situation and on the recommendation of the NCCC, Cabinet had decided to retain the country on Adjusted Alert Level 3 and therefore most of the restrictions imposed on 28 December 2021 – including those prohibiting faith-based gatherings - would remain in place. The President made the following statement regarding faith-based gatherings:

‘I wish to express my appreciation to the religious community in particular for its support and understanding throughout this pandemic.

Not only have faith-based organisations had to limit or adjust the nature of worship and other activities, they have also provided counselling, support, feeding schemes and other social services to communities.

At a time when people need both material and spiritual comfort, it is indeed unfortunate that the restrictions on religious and other gatherings have to remain.

We will continue our discussions with religious leaders on how best to safely meet the desire of many our people to worship in congregation while working together to preserve life.’

 

He further indicated that government was busy negotiating with vaccine manufacturers so that the process of vaccinating the population could commence, and that the government ‘will undertake a massive programme of vaccination so that we can achieve immunity across our population and thereby slow the spread of the virus.’

 

[21]       In addition to the rationale expressed by the President in his speeches the Minister claimed that the risk of infection-spread is unacceptably high in faith-based gatherings, which could turn into super-spreader events. Because of this risk the President took particular care to consult with leaders of faith-based groupings, and despite the enormous hardship caused by the prohibition, ‘the large majority of the churches have accepted the restrictions for the life-saving measures that they are.’

 

[22]       Having carefully choreographed the facts and the reasons underpinning the decision to impose a prohibition on faith-based gatherings, and having presented her case with lambent cogency, the Minister nevertheless requested that the applications be dismissed on the ground that the challenges mounted by the applicants have become moot.

 

[23]       The applicants maintain that while the impugned regulations have been replaced, and while they no longer have a cause to complain, it is nevertheless in the interests of justice that this court determine the issues they raise, as the amended regulations can themselves be changed at short notice and the prohibition on faith-based gatherings could be reintroduced. This could occur if Cabinet were to decree that the country be placed on a high Alert Level equivalent to or higher than the Adjusted Alert Level 3 which resulted in the promulgations of the impugned regulations. The Minister does not discount the possibility of this eventuating.

 

Is the matter moot?

[24]       A matter becomes moot when the lis between parties no longer exists. As a result, the decision of the court would have no practical effect. The decision at best would be of academic interest or ‘an advisory opinion on abstract propositions of law’. Courts are with good reason loath to involve themselves in such matters. Innes CJ made this point more than a century ago when he perceptively remarked:

‘After all, Courts of Law exist for the settlement of concrete controversies and actual infringements of rights, not to pronounce upon abstract questions, or to advise upon differing contentions, however important.’ [5]

 

[25]       If courts were to entertain matters where there is no live controversy to resolve they place themselves at risk of ‘giving advisory opinions on abstract propositions of law,’ which is something they should avoid.[6] This is so because in the course of time the same issue may be brought to court by different parties with different facts, in which case it would receive appropriate attention. The decision would have practical value. The court, in other words, should avoid investing judicial resources in matters that are moot. They should also avoid pronouncing on issues that have academic interest only.[7] There is, however, a qualification to this principle, which no doubt has served the law well over time.

 

[26]       As with most matters of law, there is no absolute bar to the court entertaining a case or even an issue in a case where the lis between the parties no longer exists. The court would entertain the matter if it is in the interests of justice to do so.[8] And, it would certainly be in the interests of justice to entertain a matter if there is a discrete legal issue which is of public importance, and whose resolution has implications for members of the wider public. It would certainly have implications for the wider public if the discrete legal question is highly likely to arise ‘frequently’[9], or to put it differently, the resolution ‘would affect matters in the future’.[10] In that instant the court should exercise its discretion to entertain the matter despite the issues becoming moot, as the resolution would have practical effect.

 

[27]       There are other factors that bear consideration on the issue of mootness. Some of these are encapsulated in an elegantly articulated dictum of Yacoob J and Madlanga AJ in Independent Electoral Commission which reads:

' … That discretion [to entertain a matter where there is no longer a lis between the parties] must be exercised according to what the interests of justice require. A prerequisite for the exercise of the discretion is that any order which this Court may make will have some practical effect either on the parties or on others. Other factors that may be relevant will include the nature and extent of the practical effect that any possible order might have, the importance of the issue, its complexity, and the fullness or otherwise of the argument advanced. This does not mean, however, that once this Court has determined one moot issue arising in an appeal it is obliged to determine all other moot issues.’[11]

 

[28]       The impugned regulations have been radically altered. The applicants initially asked for them to be set aside. There is now nothing to set aside. It is still possible to issue a declaratory order pronouncing on the question as to whether they were validly promulgated or not. But, the declarator would have no practical effect. It would merely be of academic interest. This is so because the factual matrix that gave rise to them was specific to the time they were promulgated: they were provoked by the particular facts and circumstances that prevailed during the Dec 2020 and January 2021 period. Some of those facts, such as the reasons for the rise in the number of infected persons or the potency of the particular variant of the virus, may reappear but in all likelihood there will be new facts that would have to be taken into account. These include, but are not limited to, the arrival of a new variant of the virus. And there certainly is one fact that was not present when the impugned regulations were promulgated. It is that the government has embarked on a mass vaccination programme. The practical detail of this programme would undoubtedly have to be taken into account to determine the validity of any decision to re-imposes a prohibition of faith-based gatherings. Hence, the declarator would have no impact on any future proceeding that may arise should the prohibition be reintroduced, for the present determination would be confined to the facts that existed at the time the application was heard. On this holding, it would not be in the interests of justice to entertain the debate on the validity of the impugned regulations. A more prudent approach would be to decline the invitation to make any pronouncement thereto.

 

[29]       I therefore find that the matter is moot and it is not in the interests of justice to pursue the vibrant debate that ensued between the parties.

 

Do the regulations constitute administrative or executive action?

[30]       The applicants brought their application in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), alternatively in terms of the legality principle. In order to prosecute their cases in terms of PAJA they sought the record of the proceedings that gave rise to the promulgation of the impugned regulations. The Minister refused to furnish it on the grounds that the decision to promulgate the regulations does not constitute administrative action. It is, she says, executive action. The applicants decided not to pursue their claim to the record, but insisted that the decision constituted administrative action. As the applicants sought not to pursue their claim to the record this issue, too, is moot. However, the debate as to whether the promulgation of the regulations constituted executive or administrative action remained vibrant. The reason being that the prohibition on faith-based gatherings may be re-introduced, and should it be challenged this issue will resurface and the facts pertinent to the issue will be the same as in this case. In the circumstances it would be in the interests of justice to pronounce on this issue.

 

[31]       In Esau[12] and City of Tshwane[13] the Supreme Court of Appeal (SCA) found that the making of regulations constitutes administrative action, but in Mostert[14] it found to the contrary. The basis of the finding that it constitutes administrative action is most carefully articulated by Plaskett JA in Esau. It is accepted that the making of regulations constitutes subordinate or delegated legislation. The question that then arises is whether the ‘making of subordinate legislation is administrative action’?[15] It is answered by reference to a finding by Chaskalson CJ in New Clicks[16] - a case in which I was one of the counsel. There, Chaskalson CJ noted that under the common law delegated legislation was regarded as administrative action. That led him to conclude that the same would hold in terms of the Constitution. The reasoning of the Chief Justice is that

‘The making of delegated legislation by members of the Executive is an essential part of public administration. It gives effect to the policies set by the Legislature and provides the detailed infrastructure according to which this is to be done. The Constitution calls for open and transparent government, and requires public participation in the making of laws by Parliament and deliberative legislative assemblies. To hold then that the making of delegated legislation is not part of the right to just administrative action would be contrary to the Constitution’s commitment to open and transparent government.’[17] (Emphasis added.)

 

[32]       The focus was clearly on policies set by the Legislature which are being given effect to by a Minister, and it is this that led Chaskalson CJ to refer to such delegated legislation as ‘legislative administrative action’ - referred to as executive rule making by some – and concluded:

‘Properly construed, therefore, ‘administrative action’ in s 33(1) of the Constitution, includes legislative administrative action.’[18]

 

[33]       Once designated as administrative action, the Chief Justice, after examining the intention of the legislature as expressed in PAJA, came to the conclusion that the specific regulations focussed on in that case constituted administrative action as contemplated in PAJA. The conclusion is articulated as follows:

‘It follows that the making of the regulations in the present case by the Minister on the recommendation of the Pricing Committee was ‘a decision of an administrative nature’. The regulations were made ‘under an empowering provision’. They had a ‘direct, external legal effect’ and they ‘adversely’ affected the rights of pharmacists and persons in the pharmaceutical industry. They accordingly constitute administrative action within the meaning of PAJA.’[19]

 

[34]       The finding was not supported by the majority of the Constitutional Court (CC). It is therefore not binding authority. Plaskett JA recognises this in Esau, but finds that the SCA was bound by its own decision in City of Tshwane.[20] But in City of Tshwane the SCA merely asserted that making of regulations is administrative action, and then cited two paragraphs from Chaskalson CJ’s judgment as authority for the assertion.[21] There was no analysis in City of Tshwane on this issue.

 

[35]       On the other hand, in Mostert, which predates Esau but is not dealt with in Esau, the SCA found:

‘A word of caution may not be out of place. New Clicks is no authority for the proposition that the making of regulations by a minister, in general, is administrative action for purposes of PAJA. It seems, with respect, that the statements in some of the other judgments in that case, to the effect that this is what Chaskalson CJ held, were based on a misinterpretation of what he said. The learned Chief Justice said what is or is not administrative action for the purposes of PAJA is determined by the definition in s 1. He analysed the regulations in question in the light of the definition, concluded that legislative administrative action has not been excluded from the definition of administrative action, and said [in para [135] which is quoted in [33] above]]:

…

 

In a separate judgment Ngcobo J expressed the view that PAJA applied to the specific power to make regulations [in that specific case]. He emphasised that he refrained from deciding whether PAJA is applicable to regulation-making in general. Two of the judges in that matter expressed their agreement with this approach while Sachs J held that PAJA was not applicable, save in the specific respect of fixing the precise amount chargeable as a dispensing fee. Moseneke J held that it was unnecessary to decide whether PAJA applied to ministerial regulation-making, and four judges concurred in his judgment.

 

In dealing with the applicability of PAJA to regulation-making, Chaskalson CJ was therefore not speaking for the majority of the court, and, as I have tried to show, in any event confined himself in this regard to the specific regulations that the court was dealing with. It seems with respect, that in City of Tshwane … the position was also stated too widely (para 10). The final word on regulation-making and the applicability of PAJA to it may therefore not have been spoken. And as this matter shows, not all the provisions of PAJA, and particularly s 7, are tailored for the review of a regulation.’[22]

 

[36]       The issue had arisen in a case before the CC which seems not to have been brought to the attention of the SCA. In Eisenberg[23] the Court was required to consider a challenge to certain regulations made by the relevant Minister under the Immigration Act. Eisenberg predates New Clicks. The judgment was unanimous and authored by Chaskalson CJ.

 

[37]       Chaskalson CJ said this about the making of regulations:

‘The Minister’s powers are not unfettered. The making of regulations is an exercise of public power and as such is subject to constitutional control.’[24]

 

And then went on to say further:

‘Although the respondent did not rely directly on PAJA in its founding affidavit, it sought to do so indirectly, by using the provisions of PAJA to support its construction of the [Immigration] Act. It is not at all clear that using PAJA as an interpretive tool to assist in interpreting other legislation, as the respondent contends, is appropriate. PAJA regulates the manner in which certain powers are to be exercised. If the power in question is one within the scope of PAJA, it must be exercised consistently with PAJA. If it is not such a power, PAJA has no application. Questions may arise as to whether legislation may by necessary implication oust the requirements of PAJA, but they do not arise here. Be that as it may, I shall nevertheless consider s 4 of PAJA can assist the respondent.

…

Although this was not the case made out in the founding affidavit, argument was addressed to us by both parties on the question whether PAJA was applicable to the making of regulations under the [Immigration] Act. I deal briefly with that argument.

 

Section 4 of PAJA makes provision for notice and comment procedures to be followed or public inquiries to be held where administrative action ‘materially affects the rights of the public’. ‘Administrative action’ is defined in s 1 of PAJA as meaning ‘any decision taken, or any failure to take a decision’ by particular functionaries identified in the definition. ‘Decision’ is defined in the same section as meaning

‘any decision of an administrative nature made, proposed to be made or required to be made, as the case may be, under an empowering provision, including a decision relating to-

(a)       making, suspending, revoking or refusing to make an order, award or determination;

(b)       giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c)       issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d)       imposing a condition or restriction;

(e)       making a declaration, demand or requirement.;

(f)         retaining, or refusing to deliver up an article, or

(g)       doing, or refusing to do any other act or thing of and administrative nature, and a reference to a failure to take a decision must be construed accordingly’.

 

The definition of ‘decision’ does not refer to the making of regulations and it is not clear whether this constitutes administrative action for purposes of PAJA. Moreover, the definition of ‘administrative action’ specifically excludes ‘any decision taken, or failure to take a decision, in terms of s 4(1)’. It may be open to doubt, therefore, whether reliance could be placed on PAJA in the circumstances of this case.’[25]

 

[38]       While Eisenberg predates New Clicks, it cannot under any circumstances be said that it was overruled by New Clicks. As an expression of the legal position it remains valid. In my view, the holding that regulation-making in general constitutes administrative action that is subject to the controls and constraints of PAJA is too incoherent to be accepted as an established legal norm. Instead, reading the judgment of Chaskalson CJ in Eisenberg, together with his and the judgment of Ngcobo J in New Clicks, I come to the conclusion that the only learning contained therein on this particular issue is that some regulation-making may well be administrative action subject to the discipline of PAJA, while others may not. And even that is not binding authority. Where a particular set of regulations are challenged and the court holds that PAJA finds no application to their making, then those regulations would be only subject to the discipline of the principle of legality.

 

[39]       The impugned regulations are intertwined with the decision to place the country in Advanced Alert Level 3. That decision was taken by Cabinet, which not only laid the basis for the impugned regulations but was fundamental to it. The steps followed in the making of the impugned regulations are set out in [11] above. It is clear from those facts that the making of the impugned regulations is part of an RAS strategy adopted by government as a whole, not by the Minister acting individually. The consultations that took place with leaders of faith-based organisations prior to the promulgation of the impugned regulations was undertaken by the President. The President and the Cabinet were centrally involved in the making of all the regulations, including the impugned ones. This is understandable, for in terms of s 26 of the Act, ‘[t]he national executive is primarily responsible for the co-ordination and management of national disasters’. Covid-19 has been declared a national disaster. In managing this national disaster, the National Executive has to decide on what the appropriate balance between saving lives and saving livelihoods is. A cruel choice it may be, but, in terms of the Act, it is one that has to be decided upon by the Executive. And, of course, like so many aspects of executive policy making there is no straight line between saving lives and saving livelihoods.

 

[40]       These regulations are not in the same category as those made in the New Clicks matter. There the Minister alone, acting on the advice of a Pricing Committee, made the regulations. Neither the President nor any other member of the Cabinet had any role to play in their making. The Minister acted solely in terms of the empowering legislation - hence Chaskalson CJ’s characterisation of them as ‘legislative administrative’ (a characterisation that in any event, was not accepted by the majority of the court). In contrast, the present regulations are made through the collective effort of the Executive. They involve an adoption of policy by the Cabinet. In fact, in this case the process adopted and the actual decision taken indicate that the impugned regulations amount to Executive decision making. The regulations are therefore no more than an expression of executive policy. Accordingly, I hold that they do not constitute administrative action. On this holding, I find that PAJA has no application in this matter.

 

Should ‘religious workers’ be included in the category of essential services?

[41]       The FOR SA applicants ask that all religious workers be declared essential service workers. A designation to this effect would afford them some freedom from the chokehold of the restrictions on movement imposed by the regulations as a whole. None of the other applicants supported this claim. The Minister has resisted the call for an order to this effect on the ground that they do not meet the requirements for qualification of essential service workers as set out in the Labour Relations Act, 66 of 1995 (LRA). This is no answer, as many persons not designated as essential service workers in terms of the LRA have been designated as essential service workers in these regulations. That said, it has to be noted that there is insufficient information before this court to make a determination on this issue. Not enough is known about which ‘religious workers’ perform any duties that could be considered as essential services. Nor is there any information as to how the Minister came to designate certain work as an essential service. Put differently, there is no detail as to what qualifications were met by those who came to be listed in the regulations as essential workers. FOR SA says in its founding affidavit and heads of argument that should their work not be declared an essential service, ‘they will no longer be able to fulfil their core function of spiritual and pastoral counselling and care and/or practical care (in the form of providing food, medicine, etc)’. There is simply very little detail in the founding affidavit of FOR SA as to who these ‘religious workers’ are, what work do they perform, when do they perform this work or how do they perform it. Furthermore, they make no distinction between religious workers operating within the Christian faith and those operating within the other faiths, and therefore any order in the form they seek would - apart from being legally incompetent – create confusion and uncertainty. No court should ever issue an order that is uncertain or ambiguous. Lastly, it is not for this court or any court for that matter to usurp the functions and powers of the Minister to designate any specific work to be an essential service.

 

Costs

[42]       As the applicants sought to vindicate constitutional rights, and as their applications are not frivolous or vexatious, none of them should be mulcted with costs despite failing in their endeavours.

 

Order

[43]       The following order is made:

The applications are dismissed.

 

__________________

Vally J

Gauteng High Court (Witwatersrand Division)

 

 

Date of hearing:                              22, 23 and 24 November 2021

Date of judgment:                           13 December 2021

For the SANCF applicants:             S J Martin

Instructed by:                                  Helani van der Westhuizen

For the MLA applicants:                  F Boda (SC) with M Karolia and Abu Bakr Omar

Instructed by:                                  M Mia Attorneys

For the Solidariteit applicants:        G Engelbrecht SC

Instructed by:                                  Hurter Spies Inc

For the FOR SA applicants:            A Botha SC with R Willis and N Badenhorst

Instructed by:                                   Biden Campbell Attorneys

For the Minister in each case:        R Mogagabe (SC) with Z Buthelezi, I Tshoma and N Kekana (Heads of argument by K Pillay (SC) with Z Buthelezi, I Tshoma and N Kekana)

Instructed by:                                   State Attorney

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