The Zimbabwe Chamber for Informal Workers and Others v Minister of Health and Child Welfare and Others

Following the WHO's declaration of COVID-19 as a global pandemic on 11 March 2020, the President of Zimbabwe declared COVID-19 a state of disaster under s 27(2) of the Civil Protection Act. The Minister of Health and Child Welfare enacted the Public Health (COVID-19 Containment and Treatment) Regulations 2020 (SI 77/2020) under s 64(1)(a) of the Public Health Act, declaring COVID-19 a formidable epidemic disease. On 28 March 2020, the President announced a 21-day lockdown starting 30 March 2020, given legal effect through SI 83/2020. The lockdown was subsequently extended through various statutory instruments. SI 99/2020 imposed substantial amendments including: allowing formal businesses to open while restricting informal sector operations; mandatory COVID-19 screening and testing; mandatory face masks; and restricting public transport services to ZUPCO only. The applicants, representing informal workers and passenger associations, challenged these regulations as unconstitutional and ultra vires the enabling legislation. The application was initially dismissed by Dube J on 26 May 2020, but the Supreme Court upheld an appeal on 12 March 2021 and remitted the matter for a hearing de novo before a different judge.

• Whether s 8 of SI 77/2020 was ultra vires s 68 of the Public Health Act
• Whether s 8 of SI 77/2020 breached s 134 of the Constitution relating to delegation of delegated power
• Whether ss 4(2), 4(1)(c) and 11F(1) of SI 83/2020 as amended were ultra vires s 8 of SI 77/2020 and s 68 of the Public Health Act
• Whether ss 4(2)(a) and 11F(1) of SI 83/2020 were ultra vires the Constitution
• Whether the monopoly granted to ZUPCO for public transport and the prohibition of informal sector operations were unlawful and illegitimate
• Whether the fundamental rights limitations imposed by the COVID-19 regulations were fair, reasonable, necessary and justifiable under ss 86 and 87 of the Constitution

The application was dismissed with no order as to costs.

The binding legal principles established are: (1) Fundamental rights under the Constitution are not absolute and may be limited under ss 86 and 87 of the Constitution, provided such limitations are fair, reasonable, necessary and justifiable in a democratic society; (2) During a public health emergency such as the COVID-19 pandemic, the Minister of Health is empowered under s 68 of the Public Health Act to make regulations restricting public traffic, movement of persons, and business operations for the legitimate purpose of controlling the spread of a formidable epidemic disease; (3) Courts should afford government the necessary space to put in place measures to curb the spread of disease during a public health emergency and should not prescribe to government how to exercise its mandate in such circumstances at the interim relief stage; (4) The inconvenience and infringement of rights caused by emergency health regulations must be weighed against the urgent constitutional duty to save lives and protect public health.

The court made several non-binding observations: (1) The court noted that some of the reliefs sought by the applicants had been superseded by subsequent developments, as the government had progressively relaxed restrictions - for example, SI 136/2020 permitted the informal sector to operate subject to registration for presumptive tax, and SI 223/2020 permitted other transport operators to ply routes subject to compliance with conditions; (2) The court observed that questions regarding the constitutionality of the regulations, the validity of delegation of delegated power, and whether the Minister could justify the regulations under s 86 of the Constitution were matters that would have to be fully argued and determined on the return date when the respondents would have to justify their position; (3) The court noted that the issue of whether the monopoly granted to ZUPCO was covered under the Public Health Act would have to be advanced and argued on the return date; (4) The court acknowledged that the measures taken did not satisfy everyone and had caused great criticism, inconvenience and discontent.

This case is significant in Zimbabwean constitutional and administrative law as it addresses the balance between fundamental rights and public health emergency measures during the COVID-19 pandemic. It establishes important principles regarding: (1) the extent of executive power to limit fundamental rights during public health emergencies under ss 86 and 87 of the Constitution; (2) the deference courts should show to government policy decisions in managing public health crises; (3) the interpretation of ministerial powers under the Public Health Act in emergency situations; and (4) the proper approach to interim relief applications challenging emergency regulations. The case demonstrates judicial recognition that extraordinary circumstances require extraordinary measures and that the limitation of fundamental rights may be justified where necessary to protect public health and save lives. It also illustrates the court's reluctance to interfere with government's exercise of emergency powers at the interim stage, leaving substantive constitutional questions for determination on the return date.