Duwayne Esau and Others v Minister of Co-Operative Governance and Traditional Affairs and Others

During the Covid-19 pandemic, South Africa declared a national state of disaster under the Disaster Management Act 57 of 2002 (DMA) on 15 March 2020. The National Coronavirus Command Council (NCCC) was established as a cabinet committee. The COGTA Minister promulgated regulations implementing a strict lockdown (level 5) from 26 March 2020, later replaced by less restrictive level 4 regulations on 29 April 2020 following public consultation. The level 4 regulations permitted more economic and social activities but still restricted movement (requiring people to stay home except for permitted activities, exercise only between 06h00-09h00 within 5km, and only by walking, running or cycling) and prohibited certain economic activities (including the over-the-counter sale of hot food). Eight appellants, acting in the public interest under s 38(d) of the Constitution, challenged: (1) the lawfulness of the NCCC's establishment and decisions; (2) whether the regulations were consistent with ss 26 and 27 of the DMA; (3) whether the COGTA Minister acted procedurally fairly and rationally; (4) whether certain regulations were unjustifiable infringements of fundamental rights; and (5) the validity of directions by the Minister of Trade, Industry and Competition regarding clothing sales.

• Whether policy decisions of the NCCC are justiciable before they are given legal effect
• Whether the making of subordinate legislation constitutes administrative action subject to PAJA
• Whether the level 4 regulations complied with ss 26 and 27 of the DMA
• Whether the COGTA Minister followed a procedurally fair process in making the level 4 regulations
• Whether the COGTA Minister applied her mind to public representations
• Whether certain level 4 regulations constitute unjustifiable limitations of fundamental rights under s 36 of the Constitution
• Whether reg 16(2)(f) limiting exercise was a justifiable limitation of rights
• Whether the prohibition on over-the-counter sale of hot food was a justifiable limitation of rights
• Whether the clothing directions issued by the Minister of Trade, Industry and Competition were valid

Appeal dismissed save for two limited aspects. The court amended the High Court's order to declare invalid: (1) regulation 16(2)(f) to the extent it limited exercise to walking, running and cycling, between 06h00-09h00, within 5km of residence; and (2) items 1 and 2 of Part E of Table 1, read with reg 28(3), to the extent they prohibited the sale of hot cooked food other than for home delivery. No costs order made, following the Biowatch principle for public interest litigation.

The binding legal principles established are: (1) Policy decisions of the executive that have no legal effect are not justiciable; only their implementation through legal instruments is reviewable. (2) The making of subordinate legislation constitutes administrative action for purposes of s 33 of the Constitution and PAJA, following the reasoning in New Clicks and the finding in City of Tshwane v Cable City. (3) Section 4 of PAJA applies to regulation-making affecting the public and requires procedurally fair processes, but flexibility is required given the context - a two-day comment period may be adequate in urgent disaster circumstances. (4) The NCCC, as a cabinet committee comprising the entire cabinet, has lawful authority to take policy decisions that bind the cabinet. (5) In reviewing regulations for justifiable limitation of rights under s 36, courts must balance: the seriousness of the threat being addressed; the importance of affected rights; the extent of limitation; and whether measures are rationally connected to their purpose and proportionate. (6) Regulations limiting fundamental rights will be struck down if they lack rational connection to their stated purpose or are disproportionate to the mischief addressed. (7) The principle of legality requires both substantive rationality (connection between means and ends) and procedural rationality (appropriate decision-making process).

Plasket JA made several important observations: (1) While acknowledging the academic debate between Mass and Hoexter on whether s 4 of PAJA is linked to s 3, he concluded the reference to s 3 in s 4(1)(e) cannot be ignored and serves to inject fairness standards into alternative procedures. (2) He noted that judicial review is concerned with legality not wisdom - courts do not ask whether decisions are right or wrong, but whether they were legally permitted, citing R v Somerset County Council. This is especially important in controversial matters to maintain public confidence in impartial courts. (3) The judgment emphasizes the separation of powers - courts may not substitute their views for those of the executive simply because they believe other means would be better; only legality is justiciable. (4) He observed that the flexible, evolving nature of the government's pandemic response, with regulations subject to change as knowledge developed, was a relevant factor in assessing reasonableness. (5) The judgment notes that while regulation-making had been treated as administrative action at common law, there is ongoing judicial debate about whether it falls within PAJA, though this was not the appropriate case to explore those doubts given the respondents' failure to argue the point and the binding authority of City of Tshwane.

This is a landmark judgment on South Africa's legal response to the Covid-19 pandemic. It affirms that even in times of national disaster, executive action must be rooted in law and comply with the Constitution - the rule of law applies equally in crisis. The judgment clarifies important administrative law principles: (1) it confirms (following City of Tshwane) that regulation-making constitutes administrative action subject to PAJA; (2) it demonstrates flexible application of procedural fairness requirements in urgent disaster contexts under s 4 of PAJA; (3) it establishes that policy decisions without legal effect are generally not justiciable until implemented; (4) it confirms the NCCC as a lawful cabinet committee whose decisions bind the entire cabinet. On substantive review, it demonstrates courts will defer to executive choices in balancing competing rights during a pandemic (saving lives vs livelihoods) but will strike down measures that lack rational connection to their purpose or are disproportionate. The judgment illustrates the proper balance between judicial deference to executive expertise in managing complex polyvalent crises and robust judicial review to protect fundamental rights - courts review for legality and rationality, not wisdom. It provides important guidance on limitation of rights under s 36 in emergency contexts.