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

Following the declaration of a national state of disaster under the Disaster Management Act 57 of 2002 (DMA) due to the Covid-19 pandemic, the Minister of Co-operative Governance and Traditional Affairs promulgated regulations governing lockdown alert levels. The appellants, acting in the public interest, challenged the constitutional validity of certain policy decisions allegedly taken by the National Coronavirus Command Council (NCCC), the procedural fairness and rationality of the level 4 lockdown regulations promulgated on 29 April 2020, and the legality of certain directions issued by the Minister of Trade, Industry and Competition. They contended that specific regulations unjustifiably limited fundamental rights, including freedom of movement, dignity, and trade, occupation and profession.

The appeal was dismissed except to a limited extent. The High Court order was amended to declare regulation 16(2)(f) and items 1 and 2 of Part E of Table 1 (read with regulation 28(3)) of the level 4 regulations invalid to the extent specified. No costs order was made.

This case is a leading appellate authority on judicial review of executive action taken under the Disaster Management Act during the Covid-19 pandemic. It clarifies the non-justiciability of cabinet policy decisions lacking legal effect, affirms the application of constitutional and administrative-law standards during a national disaster, and illustrates how courts balance separation of powers with protection of fundamental rights.